Fixing prison-based gerrymandering after the 2010 Census: Arkansas

50 State Guide, March 2010

Prison-based gerrymandering violates the constitutional principle of "One Person, One Vote." The Supreme Court requires districts to be based on equal population in order to give each resident the same access to government. But a longstanding flaw in the Census counts incarcerated people as residents of the prison location, even though they can’t vote and aren’t a part of the surrounding community.

When legislators claim people incarcerated in their districts are legitimate constituents, they award people who live close to the prison more of a say in government than everybody else.

Impact at the state level:

  • The state's prison population comes disproportionately from some counties:
    • Sebastian County (Fort Smith) is home for 4.3% of the state, but 8.3% of its incarcerated people.
    • Crittenden County (West Memphis) is home for 1.8% of the state, but 3.9% of its incarcerated people.
  • After the 2000 Census, 16% of the population claimed by House District 11 was incarcerated at the Varner Correctional Facility, Cummins Unit, Maximum Security Unit and Tucker Unit. Every group of 84 people in this district were given as much influence over state affairs as 100 people in any other district.

Impact at the local level:

  • After the 2000 Census:
    • Jackson County based its Justice of the Peace Districts on the Census Bureau's prison counts, making the Grimes-Mcpherson Correctional Facility 64% of Justice of the Peace District #5. The real residents of that district got more than twice the influence of each resident of other county districts.
    • Lincoln County ignored the prison population when it drew its Justice of the Peace districts. Otherwise, the large prisons in the county would have created two districts with no voters.
    • When Forrest City was faced with drawing a city ward that was 62% people incarcerated at the FCI Forrest City prison and camp, the city chose to ignore the prison populations. Otherwise, every 19 residents in Ward 4 would have been given as much political power as 50 residents in the other wards.
    • Lee County rejected the Census Bureau's prison count when drawing county board of supervisors districts. Otherwise the East Arkansas Regional Unit, which contains more people than any one district, would have created one district with no constituents, and another where residents would have more political influence than residents of other districts.
  • More research needs to be done, especially in the city of Newport and in counties of St. Francis, and Izard. (These communities contain large prisons relative to their actual population.) Unless the prison populations were removed from the redistricting base after the last Census, these communities have one or more districts that are significantly padded with non-resident prison populations. See the Democracy Toolkit for a suggested research methodology.

Arkansas law says a prison cell is not a residence:

  • Incarceration is not voluntary, so a prison cell can not be a residence under the Arkansas code:

    The domicile of a person is that place in which his or her habitation is fixed to which he or she has the intention to return whenever he or she is absent; A change of domicile is made only by the act of abandonment, joined with the intent to remain in another place. A person can have only one (1) domicile at any given time. (Arkansas Annotated Code §7-5-201(a)(1-2))

Solutions:

  • Ideally, the U.S. Census Bureau would change where it counts incarcerated people. They should be counted as residents of their home — not prison — addresses. There is no time for that in 2010, but Arkansas should ask the Census Bureau for this change for 2020.
  • After the 2010 Census, the state and its local governments should, to the degree possible, count incarcerated people as residents of their home communities for redistricting purposes. Where that is not feasible, incarcerated people should be treated as providing unknown addresses instead of being used to pad the legislative districts that contain prisons.

Additional resources:

  • A list of new large prisons built in Arkansas since the 2000 Census. These prisons are likely to create new prison-based gerrymandering problems after their populations are counted in the 2010 census.
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