Across the country, felons are subjected to varying degrees of voter disenfranchisement depending on where they are incarcerated. In all but the District of Columbia, Maine and Vermont, felons lose their right to vote while they are incarcerated. While the right to vote and the future of democracy are often foremost concerns for many American citizens, the issue of prison gerrymandering rarely comes to mind. Prison gerrymandering is an effect that arises from how the Census Bureau counts incarcerated people in prisons. Every ten years, the census attempts to count every resident of the United States and identify where they reside. The census counts incarcerated people as residents of the towns where they are confined, not where they resided prior to being incarcerated. This results in a significant distortion in government representation on the local and state levels. This practice goes against the majority of state constitutions and statutes, which explicitly state incarceration does not change a person’s legal residence.
The issue of prison gerrymandering has been greatly exacerbated in the past few decades by the mass incarcerationproblem in the United States. This undermines the Supreme Court’s requirement that political power be proportioned evenly based on the location of the population. A second element to this issue arises from the disproportionate number of Black Americans who are incarcerated within the United States, which was examined in a 2019 study conducted in Pennsylvania. The study investigated the hyper-incarceration of young, Black males from lower income neighborhoods within mass incarceration and how this affected political representation. At the time the article was written, prisoners were counted as residents of the communities where they were incarcerated, except in Delaware, Maryland and New York. But as they are confined within prison walls, those incarcerated are not members of these communities in any meaningful way. The study goes on to say, “because prisoners are disproportionately people of color from urban areas while most prisons are located outside of urban areas, representation, particularly non-white representation, may be distorted by incarceration.” Therefore, prisons can artificially inflate local populations in a way that appears to achieve representational equality, but this simultaneously fuels vote inequality as voters in these communities may have more influence.
The study found that there were over 100,000 Blwack residents of Philadelphia who were incarcerated that, if they were counted as residents in the districts where they actually live, the size of those districts violated the equal representation standard set by the Supreme Court. Reynolds v. Sims applies the principle of “one person, one vote” to electoral districts of state legislative chambers, requiring them to be roughly equal in population. This means that if those incarcerated were counted in their home communities for purposes of the census, it is very likely that there would be another district created in Philadelphia. At the same time, four rural districts grow too small if those incarcerated are counted in their home communities, furthering this unfair shift in political representation.
While the Census Bureau has yet to amend their counting methods, the Supreme Court cleared the way for states to correct the issue of prison gerrymandering themselves by upholding the decision in Fletcher v. Lamone. Recently, Pennsylvania ended prison gerrymandering, but there are still thirty-six states (where 53% of the United States population resides) that have not yet taken any action towards ending the issue of prison gerrymandering within their own borders. This is a marked improvement from the state of progress in 2010, when only New York and Maryland had implemented legislation to stop prison gerrymandering. It is important that the Census Bureau updates its outdated practices with regards to prison populations to help ensure that both those incarcerated and those who live in their communities have the fair and proportionate political representation that they deserve. Until this happens, it is the duty of people both in and out of the criminal legal system to advocate for change.