Fixing prison-based gerrymandering after the 2010 Census: West Virginia

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.

West Virginia law says a prison cell is not a residence:

  • Incarceration is not voluntary, so a prison cell cannot be a residence under West Virginia law, because in West Virginia, “[a] change of residence or domicile depends upon intention. And it is said that intention is the fundamental and controlling element.“ (State v. Beale, 104 W.Va. 617, 141 S.E. 7 (W.Va. 1927).)

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 West Virginia should ask the Census Bureau for this change for 2020.
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