Reprinted from: Peter Wagner, Breaking the Census: Redistricting in an Era of Mass Incarceration, 38 William Mitchell Law Review 1241 (2012) (98 footnotes omitted)
Every decade, state and local governments redraw their legislative districts to ensure equal representation as required by U.S. Supreme Court precedent. When each district contains the same population, each member of the community is afforded equal representation. This undertaking, however, is vulnerable to any flaws in the data on which redistricting relies. A longstanding flaw in the Census counts incarcerated people as residents of the prison location, even though almost all are barred from voting and are not legal residents of the surrounding community. When district population counts include incarcerated populations, people who live close to the prison are given more of a say in government than everybody else. The practice of using prison populations to dilute the votes of residents in other districts is referred to as prison-based gerrymandering.
When the Census Bureau began counting Americans in 1790, it really didn't matter that the Bureau decided to count incarcerated people as residents of the prison. At that time, the data was only used for one purpose: to gauge the relative populations of each state to determine how many seats in Congress each received. It didn't matter where incarcerated people were counted within a state because legislative redistricting didn't yet exist. Also, until 1900, most federal prisoners were kept in state prisons, so even this miniscule number of people did not cross state lines. For more than a century, the impact of the Census Bureau's method of counting people in prison on the distribution of political power was about zero.
Further, in 1880, there was only one federal prison and sixty-one state prisons. At that time, the United States had only 61 people in prison for every 100,000 people in the population. That's just above one-twentieth of one percent--a tiny figure that reflects just how infrequent incarceration was. By 1923, the federal prison system had grown to three prisons, but the state system had the same number of facilities. The prison population had grown, but it was growing only slightly faster than the overall population. In 1923, the incarceration rate in the United States was, by Census Bureau figures, 74 per 100,000.
Drawing state and local legislative districts somewhat on the basis of population became more prevalent around this time, but there was not a clear federal requirement that governments must regularly redistrict on the basis of population equality until a series of court cases that began in 1962. Prison populations were, at worst, minimal blips in the redistricting data.
The 1990 Census was the first to show a sudden increase in the rate of incarceration, with the rate more than doubling over the previous decade to 292 people incarcerated per 100,000 residents. By 2000, the number of prisons had skyrocketed to 1,668, and the prison incarceration rate had risen to 478 per 100,000. That's almost one half of one percent of the U.S. population incarcerated in state or federal prisons.
Incarceration is of course not evenly distributed in the population, and racial disparities have been increasing. In 1923, Blacks were incarcerated at a rate four-times higher than Whites. By 2000, that disparity had almost doubled. At the time of the 2000 Census, just under 3.5% of Black men were in prison and being counted as residents not of their hometowns but of often distant prison towns.
When these prison counts are used in the redistricting context, the impact on state legislative districts is dramatic, for example:
Seven New York state senate districts drawn after the 2000 Census met minimum population requirements only because they use prison populations as padding.
In Maryland, one state house district in western Maryland drawn after the 2000 Census drew 18% of its population from a large prison complex. As a result, every four voting residents in this district were granted as much political influence as five residents elsewhere.
The policy and racial justice implications are severe as well, for example:
Virtually all--98%--of New York state's prison cells were located in state senate districts that are disproportionately White, diluting the votes of African-American and Latino voters. Similarly, in Connecticut, 75% of the state's prison cells are in state house districts that were disproportionately White.
Of the seven New York senate districts discussed above, four of the senators sat on the powerful Codes Committee where they opposed reforming the state's draconian Rockefeller drug laws that boosted the state's prison population. The inflated populations of these senators' districts gave them little incentive to consider or pursue policies that might reduce the numbers of people sent to prison or the length of time they spend there. One of them, Republican New York state Senator Dale Volker, boasted that he was glad that the almost 9,000 people confined in his district cannot vote because they would never vote for me.
The impact of prison-based gerrymandering on state legislative districting gets the most attention from policymakers, but the problem is even more significant in rural counties and cities that contain prisons. Their county board districts and city council districts are smaller than state legislative districts, so a single prison can have a massive effect. The most well-known example is in Anamosa, Iowa, where the state's largest prison constituted 96% of the city's second ward. In 2005, there were no second ward candidates for city election, and the winner won with two write-in votes, one cast by his wife and another by a neighbor. Citizen outcry about the unfairness of granting some residents twenty-five times as much political influence as other voters led Anamosa to change its form of city government.
The extreme example of Anamosa is far from unique. Other examples include:
Lake County, Tennessee drew a district after the 2000 Census where 88% of the population in County Commissioner District 1 was not local residents, but incarcerated people in the Northwest Correctional Complex. The result was that every group of 3 residents in District 1 [had] as much say in county affairs as 25 residents in other districts.
Half of one city ward in Rome, New York, drawn after the 2000 Census, was incarcerated, and the majority of the clout given to the Chair of the Livingston County New York Board of Supervisors came from claiming incarcerated people as residents of his town.
Wisconsin has a number of county and municipal districts where prisons constitute the majority of individual districts. The Waupun City Council drew a district after the 2000 Census that was 79% incarcerated, and Juneau County drew a district after the 2010 Census that was 80% incarcerated.
The most troubling example may be from Somerset County, Maryland where prison-based gerrymandering made it impossible to elect an African-American.
Somerset County, which until 2010 had never elected an African-American to county government, settled a voting rights act lawsuit in the 1980s by agreeing to create one district where African-Americans could elect the candidate of their choice. Unfortunately, a prison was built and the 1990 Census was taken shortly after the first election, leaving a small African-American vote-eligible population in the district. This made it difficult for residents of the district to field strong candidates and for voters to elect an African-American Commissioner. An effective African-American district could have been drawn if the prison population had not been included in the population count.