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Fixing prison-based gerrymandering after the 2010 Census: Kentucky

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 local level:

  • After the 2000 Census, we identified prison-based gerrymandering within Clay, Lyon and Oldham counties:
    • In Clay County, District 2 was 40% prisoners, from FCI Manchester and Clay County Detention Center. This means that every 3 residents in District 2 had as much political power as 5 residents in other districts.
    • In Lyon County, District A was 27% prisoners, from Kentucky State Penitentiary. District C was 23% prisoners, from Western Kentucky Correctional Complex. This means that residents of District B had their votes disproportionally diluted as they relied on actual residents to meet population requierments.
    • In Oldham County, the prison was deliberately split between Districts 2 and 3, making each district about 30% prisoners. While superior to keeping the prison within the same district, this is still a significant vote enhancement to the prison districts at the expense of residents in districts without the prisons.
  • The construction of new prisons in Elliot and McCreary Counties over the last decade mean that those counties will face the possibility of prison-based gerrymandering for the first time. Unless corrective action is taken, the population of the Little Sandy Correctional Complex could make up 77% of a single Elliot County district, and the new prison in McCreary County could be almost a third of a district. Those counties should remove the prison populations prior to redistricting.
  • More research needs to be done, especially in Boyd, Lee, Marion, Muhlenberg, and Morgan counties. (These communities contain large prisons relative to their actual population.) Unless the prison populations were removed from the redistricting base after the Census, if these counties have districts, they will have one or more districts that are significantly padded with non-resident prison populations. See the Democracy Toolkit for a suggested research methodology.

Kentucky law says a prison cell is not a residence:

  • (1) A voter's residence shall be deemed to be at the place where his or her habitation is, and to which, when absent, he or she has the intention of returning;

    (2) A voter shall not lose his or her residence by absence for temporary purposes merely; nor shall he or she obtain a residence by being in a county or precinct for such temporary purposes, without the intention of making that county or precinct his or her home. (Kentucky Annotated Revised Statute §116.035.)

  • "[A] person's domicile is not changed by his involuntary confinement in a penitentiary or other prison." --Ferguson's Adm'r v. Ferguson's Adm'r, 255 Ky. 230, 73 S.W.2d 31 (Ky. App. 1934)

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 Kentucky 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:

  • The Kentucky campaign page is an actively maintained list of links to legislation, fact sheets, testimony, and other resources on prison-based gerrymandering in Kentucky.
  • Prison-based gerrymandering in Kentucky Counties (fact sheet)
  • Testimony of Dale Ho, Assistant Counsel, Political Participation Group, NAACP Legal Defense and Education Fund, Inc., before the Kentucky General Assembly Task Force on Elections, Constitutional Amendments, and Intergovernmental Affairs, August 23, 2011.
  • A list of new large prisons built in Kentucky 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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