How many states have ended prison gerrymandering? About a dozen*!

*Our new chart details how to quantify the progress made across the country.

by Andrea Fenster, October 26, 2021

About a dozen states have ended prison gerrymandering. However, the precise number depends on the details. Prison gerrymandering can occur at different levels of government, be solved by different bodies of government, and be eliminated or mitigated through different methods, which can make it somewhat confusing to measure where prison gerrymandering has ended. We have compiled this overview to the progress being made to eliminate prison gerrymandering across the country.

While many people are familiar with redistricting at the Congressional level, these districts are often so big that prison populations rarely affect them. For that reason, Congressional redistricting is not discussed here.

How many states have taken action against prison gerrymandering? 16 states.

California, Colorado, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Montana, Michigan, Nevada, New Jersey, New York, Tennessee, Virginia, and Washington have all taken some action to reject prison gerrymandering.

However, these states have taken a variety of actions that affect redistricting in different ways. These differences are important, as they paint a picture of the road still ahead. No matter how you look at it, though, as of today, 47% of the country lives in a state that has formally rejected prison gerrymandering, adding to the growing body of evidence that it is time for the Census Bureau to count people at home.

How many states have taken any action to avoid prison gerrymandering in state-level redistricting? 14 states.

This count includes the 11 states below who passed legislation to formally end prison gerrymandering at the state level, as well as states that have taken other actions to avoid, but perhaps not permanently end, prison gerrymandering.

For example, Pennsylvania did not enact legislation, but the redistricting committee acted on its own to count people at home rather than at the prison where they are incarcerated. It was the first state to address prison gerrymandering through its redistricting committee.

Similarly, Montana is poised to take action against prison gerrymandering. There, members of the redistricting commission recently voted unanimously to take steps toward ending prison gerrymandering in legislative redistricting. They also are asking the state’s governor and congressional delegation to take action to help end the practice and are urging the U.S. Census Bureau to end prison gerrymandering nationwide.

Massachusetts is also included here, even though it does not count people at home. The Massachusetts Redistricting Committee concluded that the state constitution prohibits that solution, instead, Massachusetts is poised to minimize the impact of prison gerrymandering as they did in 2010: by taking prison populations into account when redistricting to ensure that they will not be concentrated in a small number of districts. Massachusetts also passed a joint resolution in 2010 calling on the Census Bureau to provide data that counts incarcerated people at their residence, not the prison. Our analysis of the proposed draft maps shows even further progress in avoiding prison gerrymandering for the 2020 districts.

How many states have enacted legislation addressing prison gerrymandering at any level? 13 states.

In addition to the 11 states that have ended prison gerrymandering through legislation at the state level, there are 2 states that have enacted state-level legislation that applies only to local governments.

Michigan’s laws require counties, cities, and towns to exclude people in state prisons who are not residents of the city or county for election purposes. Tennessee, on the other hand, explicitly allows counties to exclude people in correctional institutions who cannot register in the county as voters, but does not require it.

How many states have solved prison gerrymandering during state-level redistricting? 12 states.

Here, Illinois and Pennsylvania are included, but not Massachusetts or Montana. While Massachusetts may avoid or mitigate prison gerrymandering by taking prison populations into consideration, it does not directly solve the problem. Regardless, neither Massachusetts nor Montana is included here because the redistricting processes in those states are still ongoing.

How many states have passed legislation ending prison gerrymandering at the state level? 11 states.

This includes all states that have passed or enacted legislation to end prison gerrymandering, and where that language is mandatory, meaning that redistricting must exclude prison populations or count them at home. These 11 states are California, Colorado, Connecticut, Delaware, Illinois, Maryland, Nevada, New Jersey, New York, Virginia, and Washington. All of these states are included in the above categories.

How many states will not prison gerrymander in their state districts in the 2020 redistricting cycle? 11 states, so far.

Eleven states will not use prison populations to pad political districts this cycle. Pennsylvania is included here because its redistricting committee acted on its own to count people at home for the 2020 redistricting cycle. However, Illinois is excluded because that legislation is not effective until 2025, in time for the 2030 redistricting cycle. Neither Massachusetts nor Montana are included here; while we expect both states to avoid prison gerrymandering, neither has formally finalized their plans yet.

So, how many states have ended prison gerrymandering? The answer is somewhere between 11 and 16 states, depending on how complete and futureproof their solutions are. On top of that, more than 200 impacted local governments, including counties, cities, towns, and school boards, have also acted to end prison gerrymandering. By comparison, in the 2010 cycle, only 4 states—New York, Maryland, Delaware, and California—had passed legislation and only 2—New York and Maryland—had implemented it. But as long as the Census Bureau continues to count incarcerated people in the wrong place, any state-based solution is a stop-gap measure. While the different approaches that states have taken may be important to know about, these differences should not obfuscate the larger trend towards ending prison gerrymandering.

For detailed information on the different types of solutions to prison gerrymandering, please see our solutions page and our legislation quick-reference chart.

Since you asked: do opponents of prison gerrymandering want voter-only districting?

No. We oppose voter-only districting — even our recommendation that incarcerated people be excluded in some contexts lends no support to the practice of voter-only districting.

by Ginger Jackson-Gleich, December 28, 2020

Who should be counted for redistricting purposes? Since the 2010 redistricting cycle, numerous events — from the Supreme Court’s decision in Evenwel v. Abbott to President Trump’s efforts to inquire into citizenship status in the 2020 Census — have drawn attention to this important question. For people interested in our work, an additional query often follows: how exactly should disenfranchised incarcerated people be counted toward district populations?

The fact that questions persist about our recommendations for counting incarcerated people is not surprising: journalists have reported our position inaccurately; advocates for voter-only districting have tried to twist and appropriate our words; and the exclusion of incarcerated people (who generally cannot vote) is one of the solutions to prison gerrymandering that we promote in specific, limited contexts. As a result, some people assume that opponents of prison gerrymandering support voter-only districting.

In advance of the upcoming redistricting cycle, we’d like to make our position on this issue clear: we believe that all persons, whether or not they can vote, are entitled to equal representation and that everyone should be counted for purposes of redistricting. The key concern with prison gerrymandering is not whether incarcerated people should count, but where they should count. Accordingly, districting based on the eligible-voter population is not an approach that we support.

As noted above, we suspect that some of the confusion surrounding this topic arises from our recommendation that incarcerated people be excluded from redistricting data when cities or counties draw local legislative districts around correctional facilities.

To understand why such exclusion does not amount to an endorsement of voter-only districting, it is necessary to see that prison gerrymandering causes two distinct problems: it undermines equality of representation between coequal legislative districts and it siphons political power from incarcerated people’s home communities. Both issues arise from the way the Census tabulates incarcerated populations: it allocates people to their temporary prison addresses, rather than counting them at home (despite the fact that they remain legal residents of their home addresses while incarcerated).

Just like state governments, local jurisdictions — such as cities and counties — have districts that are required to contain equal populations in order to ensure equal representation by local elected officials.

However, as one federal judge has beautifully explained, city councilors, county commissioners, and other local elected officials “can’t make decisions that meaningfully affect” the people incarcerated within their districts, nor can the governing bodies to which those representatives belong do anything for such populations, whose lives are generally governed by state (or even federal) authorities. In other words, unlike other non-voter populations (like children or permanent residents), there is no “representational nexus” between local elected officials and the people detained within their districts. As a result, excluding correctional facilities when local district lines are drawn ensures that districts will have equal numbers of actual residents — and therefore that residents will have truly equal representation.

Unfortunately, local jurisdictions cannot solve the problem of prison gerrymandering in its entirety. While they can avoid creating city or county legislative districts with unequal representation, they cannot — on their own — stop the transfer of political power from people’s home communities. This is because local jurisdictions can refuse to pad their own districts with prisons (by excluding correctional populations prior to drawing district lines), but they cannot restore incarcerated people to addresses outside of their own boundaries. Accordingly, local jurisdictions cannot singlehandedly end the siphoning of political power from incarcerated people’s home communities.

Importantly, the state-level solution is different from the local one; at the state level, exclusion is neither necessary nor beneficial because states can count incarcerated people at their home addresses statewide and thereby solve both parts of the prison gerrymandering problem. Thus, for local jurisdictions, we recommend excluding incarcerated populations prior to redistricting (a partial solution being better than no solution), while our ultimate hope is that states and the Census Bureau will implement the solutions necessary to solve the problem completely.

For all of these reasons, we continue to advocate that using total-population baselines (not eligible-voter populations) is the best method for redistricting, and that incarcerated people should be counted at their home addresses. This total-population approach (sometimes described as the pursuit of “representational equality”) ensures both that elected officials represent the same number of constituents (including those — such as children, non-citizens, and incarcerated people — who cannot vote), and also that officials have a meaningful representational connection to the people they purport to represent. By contrast, efforts to ensure “voter” or “electoral equality” limit representation to only those individuals eligible to cast ballots.

As part of our collection of updated resources for advocates, we have added a fact sheet that addresses local redistricting (and the prison gerrymandering solutions available to local governments). Readers may also wish to explore our other resources for the 2020 redistricting cycle, including a roundup of legislative solutions, as well as an explanation of why prison gerrymandering does not impact federal or state funding allocations.

Do prisons draw in Census money for their host communities? No.

One of the most common arguments against prison gerrymandering reform is the fear, among people in prison towns, that their communities will lose out on funding. It's a fear based on a misunderstanding of how federal and state funds are allocated.

by Aleks Kajstura, July 13, 2020

It’s that time of the decade again when the Census Bureau is hoping to count every single person in the country. Even though the April 1 “Census Day” has passed, the Bureau is still trying to convince the roughly 40% of US denizens that have yet to fill out a form that they should be counted. To persuade the hold-outs the Census Bureau, along with their state and local partners, rely on advertising how much money is riding on the count.

On its website where people can fill out the Census form, the Bureau stresses the financial stakes of counting people correctly: “Census results help determine how billions of dollars in federal funding flow into states and communities each year.” Funding makes an appearance in nearly every mention of how Census data is used. For example: “The 2020 Census will determine congressional representation, inform hundreds of billions in federal funding every year, and provide data that will impact communities for the next decade.”

Those statements are true. But some municipalities, desperate not to lose any population in the decennial count, often resort to putting a price tag on each person’s failure to respond. For example, as local officials in Georgia try to ensure that local residents are counted, the local paper peppers in claims like: “If only one person is counted in a house with four people, it will mean $69,000 less in local coffers over a decade.”

But while it’s true that a lot of funding depends in some way on Census data, this funding isn’t a lump sum that can be converted to a dollar amount per head. In fact, the same series of studies referenced in that Georgia newspaper warn against drawing such false conclusions.

A brief by Andrew Reamer, Research Professor at the George Washington Institute of Public Policy, gives a very detailed walkthrough of the types of population data used to distribute funding. Reamer’s brief makes it clear that per-head calculations are misleading. For a more digestible overview, try looking at a single state, such as Massachusetts. The Massachusetts Secretary of State’s Census 2020, Explained: How It Works and What’s at Stake for Massachusetts has a section on the Census’s funding impact, which correctly notes that some programs “may hardly be affected at all by Census counts.”

These details of the Census’s funding impact tie back to a question we’re getting a lot: Does the way people in prison are counted in the Census impact any particular area’s funding?

The Census Bureau counts incarcerated people at the location of the prison rather than as residents of their home addresses. This demonstrably skews a variety of statistical data for prison-hosting communities. And of course, it creates distorted population counts for determining representation in local and state legislative bodies, resulting in prison gerrymandering. But it does not draw in federal or state funding for the community hosting the prison.

Nine states have passed laws ending prison gerrymandering — adjusting their redistricting data to count incarcerated people at home rather than at the location of the prison — and none of these laws will impact funding distributions based on Census counts. New York and Maryland implemented their laws before the 2010 Census, and have not seen any impact to their formula funding. That makes sense, because no funding formula relies on redistricting data.

One of the most common arguments against prison gerrymandering reform is the fear among prison-hosting communities that they will lose out on funding, which they believe is based on the incarcerated population being counted in the prison town. This misunderstanding of how federal and state funds are allocated shouldn’t hold up reform any longer.

Nevada Governor Steve Sisolak signs law ending prison gerrymandering

Nevada moved swiftly, ending prison gerrymandering in a single legislative session.

May 31, 2019

For immediate release — Yesterday, Nevada Governor Steve Sisolak signed a bill into law ensuring that people in state prisons will be counted as residents of their home addresses when new legislative districts are drawn. The new law makes Nevada the sixth state to end the practice known as prison gerrymandering, after Washington passed its own law just last week.

The Nevada Constitution states that, for the purposes of voting, people in prison should be counted as residents of their hometowns. However, the Census Bureau counts incarcerated people as residents of the places where they are incarcerated. As a result, when Nevada used Census counts to draw past legislative districts, it unintentionally enhanced the weight of votes cast in districts containing prisons — at the expense of all other districts in the state.

“Nevada’s new law recognizes that ending prison gerrymandering is an important issue of fairness,” said Aleks Kajstura, Legal Director of the Prison Policy Initiative. “All districts — some far more than others — send people to prison, but only some districts contain prisons. Counting incarcerated people as residents of the prison gives extra representation to the prison district, dilutes the votes of everyone who does not live next to the state’s largest prison, and distorts the constitutional principle of one person, one vote. This new law offers Nevada voters a fairer data set on which future districts will be drawn.”

The legislation, passed as AB 450, applies only to redistricting and will not affect federal or state funding distributions.

Six other states have legislation to end prison gerrymandering pending in the current session. “We applaud Washington and Nevada for enacting common-sense solutions in a single legislative session,” Kajstura said. “Other states currently considering similar bills should follow its example.”

Washington Governor Jay Inslee signs law ending prison gerrymandering

Washington State moved swiftly, ending prison gerrymandering in a single legislative session.

May 21, 2019

For immediate release — Today, Washington State Governor Jay Inslee signed a bill into law ensuring that people in state prisons will be counted as residents of their home addresses when new legislative districts are drawn, making Washington the fifth state to end the practice known as prison gerrymandering.

The Washington State Constitution states that, for the purposes of voting, people in prison should be counted as residents of their hometowns. However, the Census Bureau counts incarcerated people as residents of the places where they are incarcerated. As a result, when Washington State used Census counts to draw past legislative districts, it unintentionally enhanced the weight of votes cast in districts containing prisons — at the expense of all other districts in the state.

“Washington State’s new law recognizes that ending prison gerrymandering is an important issue of fairness,” said Aleks Kajstura, Legal Director of the Prison Policy Initiative, who was present when the bill was signed. “All districts — some far more than others — send people to prison, but only some districts contain prisons. Counting incarcerated people as residents of the prison gives extra representation to the prison district, dilutes the votes of everyone who does not live next to the state’s largest prison, and distorts the constitutional principle of one person, one vote. This new law offers Washington voters a fairer data set on which future districts will be drawn.”

The legislation, passed as SB 5287, applies only to redistricting and will not affect federal or state funding distributions.

Five other states have legislation to end prison gerrymandering pending in the current session. “We applaud Washington State for enacting this common-sense solution in a single legislative session,” Kajstura said. “Other states currently considering similar bills should follow its example.”

The states with pending legislation include:

• Connecticut: HB 5611, introduced by the Government Administration and Elections Committee for the January Session, 2019.
• New Jersey: S758, “requir[ing] incarcerated individual from State to be counted at residential address for legislative redistricting purposes”, introduced by Senators Sandra Cunningham and Nilsa Cruz-Perez, January 9, 2018, and A1987, introduced by Assemblymembers Sumter, Mukherji, Quijano, and Pinkin, January 9, 2018.
• Oregon: HB 2492, “Relating to redistricting”, has chief sponsors Representative Holvey and Senator Prozanski and regular sponsors Representatives Nosse, Piluso, Sanchez, filed on January 14, 2019.
• Rhode Island: H 5513, “Residence of Those in Government Custody Act”, introduced by Representatives Williams, Vella-Wilkinson, Craven, Caldwell, and Almeida, February 14, 2019. And S 232, “Residence of Those in Government Custody Act”, introduced by Senators Metts, Nesselbush, Quezada, Cano, and Crowley, January 31, 2019.
• Texas: “An Act Relating to the inclusion of an incarcerated person in the population data used for redistricting according to the person’s last residence before incarceration” was filed by Representative Johnson as HB 104 on November 12, 2018.

State Attorneys General can end prison gerrymandering, most recent Census Director explains

AGs should take an active role in ensuring an accurate 2020 Census. Part of that is tackling prison gerrymandering.

by Aleks Kajstura, October 11, 2018

Yesterday John Thompson, the most recent Director of the U.S. Census Bureau, and Robert Yablon, Assistant Professor of Law at the University of Wisconsin published a briefing for state attorneys general. The brief urges attorneys general to start planning for the 2020 Census now, and highlights key issues facing the states, including prison gerrymandering:

…[A]ttorneys general can spur reflection and reform when it comes to how their jurisdictions use census data. Although the federal government must rely on the Census Bureau’s actual enumeration for purposes of congressional apportionment, states often have more flexibility to use adjusted numbers or to decouple state programs from census data. By way of example, the Census Bureau counts prisoners at their incarceration site rather than at their prior place of residence.
This practice, which some dub “prison gerrymandering,” has long been controversial because it serves to shift political representation … toward communities with correctional facilities and away from prisoners’ home communities. Seeing this as inequitable, a handful of states have rejected the Census Bureau’s approach and reallocate prisoners to their communities of origin when counting their populations for redistricting and other purposes.

Four states and over 200 counties and municipalities already avoid prison gerrymandering, but more work needs to be done.

Efforts to end prison gerrymandering often focus on state legislative action, but as Thompson and Yablon point out, attorneys general play an important role in ensuring equal representation by advising redistricting bodies to comply with principles of one person, one vote. In fact attorneys general already have a long history of guiding municipalities and counties to avoid prison gerrymandering in city councils and county boards even when the state legislatures continue to draw districts based on prisons rather than people.

Census Bureau will count incarcerated people in the wrong place once again in 2020 Census, continues to distort democracy

Census Bureau announcement means another decade of prison gerrymandering. State-by-state reforms are urgent.

February 7, 2018

For Immediate Release — Today, the U.S. Census Bureau announced how it will define residence for the 2020 Census. Ignoring overwhelming public support for a change in how incarcerated persons are counted in the Census, the Bureau announced it is leaving in place the inaccurate and outdated practice of counting incarcerated persons as “residents” of the prison locations instead of their home communities. In response to this development, the Prison Policy Initiative released the following statement:

The Prison Policy Initiative is profoundly disappointed by the Census Bureau proposal to again count nearly 2 million people in the wrong place on Census day. Continuing this practice will ensure another decade of “prison gerrymandering” that unjustly awards extra political power to the regions that host prisons, perverting the principles of equal representation.

Peter Wagner, Executive Director of the Prison Policy Initiative, said “The Census Bureau blatantly ignored the overwhelming consensus urging a change in the Census count for incarcerated persons. When the Bureau asked for public comment on its residence rules two years ago, over 99% of the 77,863 comments regarding residence rules for incarcerated persons urged the Bureau to count incarcerated persons at their home address, which is almost always their legal address. By planning to once again count incarcerated people as if they were residents of correctional facilities, the Census Bureau has simply disregarded input from the public, redistricting experts, and legislators.”

“The Bureau’s decision is inconsistent with the way the ‘usual residence’ rule is applied to other similarly-situated people,” explained Legal Director Aleks Kajstura. “The Census Bureau is picking favorites based on economic and racial privilege: if boarding school students are deemed to live at home, then the same logic should be applied to incarcerated people.”

The Prison Policy Initiative, along with many other civil rights, voting rights, and criminal justice advocates, have long urged the Bureau to update its rules on incarcerated persons. As our research has demonstrated over the last two decades, the Census Bureau’s practice of counting incarcerated people at the location of the facility harms our democracy at all levels of government.

When state and local officials use the Census Bureau’s prison count data attributing ‘residence’ to the prison location, they give extra representation to the communities that host the prisons and dilute the representation of everyone else. This is harmful to rural communities that contain large prisons, because it seriously distorts redistricting at the local level of county commissions, city councils, and school boards. It also harms urban communities by not crediting them with the incarcerated population whose legal residence never changed.

The Census Bureau defines “usual residence” as the place where a person “eats and sleeps most of the time”, but fails to follow that rule when counting incarcerated people. Treating a prison as a “usual residence” reflects a fundamental misunderstanding of the nature of incarceration. The critical issue is that while a prison itself seems permanent, the people located there on any given day are not. The majority of people incarcerated in Rhode Island, for example, spend less than 100 days in the state’s correctional facilities. If the same people were instead spending 100 days in their summer residence, the Bureau would count them at their regular home address. The Census Bureau continues to carve out an unexplained exception for incarcerated people in order to count them in the wrong place.

Counting incarcerated people at the location of the facility reduces the accuracy of Census data about communities of color. For example, because African-Americans and Latinos are disproportionately incarcerated, counting incarcerated people in the wrong location is particularly bad for proper representation of African-American and Latino communities. Today’s decision continues to sacrifice the accuracy of the Census and harm communities of color.

Despite this major disappointment, the advocates noted two positive developments and pledged to redouble their efforts to help states make the data suitable for redistricting. The Bureau is planning on publishing correctional facility populations early — at the same time as the main redistricting data files that they send to the states. And the Bureau is offering to help states with the number crunching required to adjust the redistricting data on their own even as it leaves people across the country at the mercy of an ad hoc approach to equal representation.

The earlier data publication will make the data adjustments easier for states that end prison gerrymandering on their own, and will be particularly useful for states with short redistricting deadlines. This data will give redistricting officials the Census counts of people in correctional facilities at the location of the facility – enabling states to subtract incarcerated people from the prison location and, in conjunction with the state’s own home address data, reallocate them back home for that state’s redistricting.

The Prison Policy Initiative has long argued that the Census Bureau is in the best position to end prison gerrymandering nationwide, and the organization hopes that, by 2030, the Bureau’s residence rules will reflect reality. But with 2020 and redistricting just around the corner, today’s disappointing announcement makes it all the more urgent that more states pass legislation to end prison gerrymandering in their states.

Links:

• Census Bureau’s 2020 Census Residence Criteria and Residence Situations (in earlier decades these were called the “residence rules”)
• Census Bureau’s memo summarizing the comments and offering their official response
• A public archive of many of the comment letters submitted to the Census Bureau in 2015 and 2016 on ending prison gerrymandering.
• The 2016 comment letter of the Prison Policy Initiative and Dēmos offering a comprehensive rebuttal of the Bureau’s proposed, and now final, determination.

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No, prison gerrymandering doesn’t reallocate $1,838 per person

Prison gerrymandering does not impact federal aid, "there is not a straight linear relationship between state population count and federal funds flow".

by Aleks Kajstura, August 22, 2017

Today, as happens every once in a while, a new estimate was published of how much federal funding is guided by the Census. And some folks familiar with how prison gerrymandering impacts representation start worrying whether it also impacts funding allocation. The short answer is that it does not. The long answer can be found here.

The Leadership Conference’s Counting for Dollars: Why It Matters fact sheet puts this latest analysis in context. And as the report, Counting for Dollars 2020: The Role of the Decennial Census in the Geographic Distribution of Federal Funds itself explains, per capita analyses of this type cannot be used to calculate how money follows people:

There is not a straight linear relationship between state population count and federal funds flow. The per capita figure allows cross-state comparisons of fiscal reliance on census-guided programs. It does not indicate the amount by which federal funding increases for each additional person counted.

Law Reviews reexamine prison gerrymandering case law

Recent Law Review pieces from Harvard and Stanford, conclude that prison gerrymandering is unconstitutional, question First Circuit's logic to the contrary

by Aleks Kajstura, June 22, 2017

A full academic year has passed since the last ruling in a case that sought to end prison gerrymandering in Cranston Rhode Island, and that time was put to good use, resulting in two recent Law Review publications.

As you may recall, in Davidson v Cranston, the District Court ruled the city’s prison gerrymandering unconstitutional, reasoning that the City could not count incarcerated people in city council districts as if they were city residents while not treating them as constituents when it came time to represent them. But the First Circuit Court of Appeals reversed the decision, allowing the City to continue using the Census’ unadjusted redistricting data despite the prison miscount.

A recent Harvard Law Review case summary by Ginger Jackson-Gleich looks at Davidson and wastes no time in dismantling the First Circuit’s reliance on Evenwel in allowing prison gerrymandering.

Recently, in Davidson v. City of Cranston, the First Circuit held that the City of Cranston, Rhode Island did not violate the Equal Protection Clause by counting prison inmates as residents of one of the City’s six wards when it redistricted. To reach this conclusion, the court relied on the Supreme Court’s decision in Evenwel v. Abbott, which approved broadly of total-population-based approaches to redistricting. While Evenwel might appear to sanction Cranston’s redistricting plan, the First Circuit’s decision is at odds with Evenwel‘s underlying reasoning and emphasis on representational equality.

This quick 8-page read provides a thorough summary and analysis of prison gerrymandering through the lens of Davidson and Evenwel.

For a much deeper dive, there is a new 66-page analysis from the Stanford Law Review, The Emerging Constitutional Law of Prison Gerrymandering, by Michael Skocpol:

This Note undertakes an in-depth analysis of one-person, one-vote challenges to prison gerrymanders and is the first scholarly work to analyze this emerging body of law. It argues that the Equal Protection Clause does limit prison gerrymandering, advocating a novel approach for adjudicating these claims—one that looks principally to community ties (or the absence thereof) between prisoners and the localities that house them. It considers the impact of the Supreme Court’s recent landmark decision in Evenwel v. Abbott and other key precedents. It also discusses relevant voting rights scholarship that courts have thus far overlooked. Ultimately, this Note aims to shed light on an underexamined constitutional right—the right to equal representation, as opposed to an equal vote—and to provide courts and litigants with the tools they need to effectively tackle prison gerrymandering claims going forward.

The second half of the Stanford piece is particularly valuable for exploring the right to equal representation as a path forward in the struggle to end prison gerrymandering.

Statement in Response to Federal Appeals Court Decision In Cranston "Prison Gerrymandering" Case

Court allows prison gerrymandering in Cranston, RI. City still has no logical reason for counting all people incarcerated by the state as residents of a single ward.

September 21, 2016

The following statement was issued today by representatives of the ACLU of Rhode Island, Demos, the Prison Policy Initiative and the ACLU:

"Today, the U.S. Circuit Court of Appeals for the First Circuit overturned a ruling issued earlier this year by U.S. District Judge Ronald Lagueux, who had held that the City of Cranston violated the one person, one vote requirements of the U.S. Constitution when it allocated the entire incarcerated population of the Adult Correctional Institutions (ACI) as 'residents' of one ward of the City when it drew district lines for the City Council and School Committee following the 2010 Census and thereby created significant distortions in local representation. A panel of the First Circuit instead ruled that a recent U.S. Supreme Court ruling dictated a different outcome.

"We respectfully, but strongly, disagree with the First Circuit's ruling. We believe the panel misinterpreted the Supreme Court's recent Evenwel v. Abbott case as vindicating the City's position when it did no such thing. As a result of that misinterpretation, the panel opinion fails to adequately address the critical 'one person, one vote' implications of Cranston's use of prison gerrymandering to overinflate the representation of constituents in the school committee and city council districts where the ACI is located. As a result, we will strongly be considering filing a petition for rehearing of the case before the entire First Circuit.

"To this day, we have heard no logical basis for the City's decision to count the entire ACI population as residing in a single City ward even though people incarcerated there who are able to vote generally are barred from voting there according to state law. In addition to the constitutional concerns, the City's choice is not rational. The prison population is wholly physically and politically isolated from the surrounding community, and local elected officials do not represent those incarcerated at the ACI in any meaningful way. This provides yet another reason for us to consider seeking an en banc rehearing, as well as for the City Council itself to fix this issue for elections in future years, as it had started to do before this appeal was filed.

"During this campaign season, serious concerns and questions about electoral fairness are being raised and felt across the country. Like those disputes, this case goes to the heart of the importance of fair representation, something that Cranston's current system simply does not provide."

Background on the Lawsuit

At issue in the lawsuit was the City of Cranston's choice to count the more than three thousand inmates at the ACI in a single city ward for the purposes of drawing City Council and School Committee districts. Judge Lagueux had agreed with the ACLU and other plaintiffs that this "prison gerrymandering" was improper because those incarcerated at the ACI are not actual constituents of local elected officials, but instead remain residents of their pre-incarceration communities for virtually all legal purposes, including voting. Due to the questionable counting, all persons incarcerated by the state of Rhode Island are used to account for 25 percent of Ward 6's total "population." According to Census Bureau data, without the non-resident incarcerated population, Ward 6 has only 10,227 true constituents. Yet those constituents now wield the same political power as the roughly 13,500 constituents in each of the other wards.

The case is Davidson et. al. v. City of Cranston. Today's decision and others documents in the case be found here.

Plaintiffs in the case were represented by attorneys with Demos, the Prison Policy Initiative, the ACLU and the ACLU of Rhode Island.