By Aleks Kajstura and Peter Wagner
The Census Bureau counts California prisoners as if they were residents of the communities where they are incarcerated, even though they remain legal residents of the places they lived before they were incarcerated. Counting thousands of incarcerated men and women as members of the wrong communities threatens American democracy which is built on the concept of equal distribution of political power on the basis of population.
Each decade, states and local governments reapportion representation on the basis of updated Census counts. The Census Bureau has always counted prisoners as residents of the prison location, but it is only recently that the prison population has grown large enough to affect legislative districting. The number of California prisoners exploded during the last three decades, from 23,264 to 173,670. Prisoners are drawn from around California but are concentrated in only 33 prisons.
Counting prisoners as residents of the facility may have made sense in the country’s first century, when the mandate of the Census was limited to determining the relative populations of states. It didn’t matter — for purposes of comparing California’s population to Oregon— whether an incarcerated person was counted at home in Los Angeles or in a cell in the San Quentin Prison, as long as they were counted in California.
But modern democracy requires far more detailed data because state and local governments need to ensure that political power is evenly distributed among their residents. Counting large prison populations in the wrong place creates constitutionally unsound districts.
Obtaining an accurate count of the population is so fundamental to representative democracy that the framers of the Constitution required it in the opening paragraphs. Article I Section 2 of the U.S. Constitution requires an “actual enumeration” of the population every ten years. This enumeration was initially used just to apportion representation in Congress. Now that state and local governments also use Census data to draw political boundaries, a more accurate picture of each state’s population is essential to democracy.
Representative democracy requires that political power be distributed on the basis of fair and accurate counts of the population. To ensure that each resident has equal access to government, regardless of where she or he lives, federal law requires states to draw legislative districts that each contain the same population. When the district populations differ, not all votes carry the same weight: in under-populated districts, each vote is worth more, and in overpopulated districts, a vote is worth less.
Often called “One Person, One Vote”, this principle originated in the 1963 Supreme Court decision Reynolds v. Sims, striking down an apportionment scheme for the Alabama state legislature that was based on counties and not population. Under Alabama’s apportionment plan, sparsely populated Lowndes County had the same number of state senators as densely populated Jefferson County. This gave the residents of Lowndes County 41 times as much political power as the residents of Jefferson County. Reynolds v. Sims barred this practice and put it plainly: “The weight of a citizen’s vote cannot be made to depend on where he lives.” The Supreme Court ruled that the 14th Amendment’s equal protection clause required that districts be drawn to be substantially equal in population.
So while our system of democracy requires each district to have substantially equal populations, this constitutional standard cannot be met when the data used to draw districts counts large numbers of people in the wrong place. California state law says prison is not a residence, but the state relies on data that treat prisons as if they were home for over a hundred-fifty thousand Californians.
Drawing districts based on Census Bureau counts of prisoners violates California law that declares that a prison is not a residence. A legal residence is defined as the place that people choose to be and do not intend to leave.
California’s statute is explicit:
“A person does not gain or lose a domicile solely by reason of his presence or absence from a place … while kept in an almshouse, asylum or prison.” (Cal. Elec. Code S 2025 (2010).
When legislators use Census Bureau counts of prison populations to pad out certain districts, they are inflating the votes of residents who live near prisons at the expense of everyone else. When governments give small groups of people who live near prison the same political power as larger groups elsewhere, they violate the Supreme Court’s “One Person, One Vote” rule which requires that districts be based on substantially equal numbers of people. The Census Bureau’s numbers simply don’t reflect the actual population of the districts.
In California’s Central Valley, a Congressional and State House district only meet constitutional minimum population requirements by claiming prisons as constituents. Counting incarcerated people as part of the local population of the district in which the prison is located creates districts that appear to be constitutional, but actually do not contain the required population.
|Type of district||District number||District’s total population||Percent of the district derived from a state prison|
The Census Bureau’s method of counting people in prison runs in direct contradiction to both fairness and state law.
Rural county legislative districts are smaller than state and congressional districts, so the impact of the Census Bureau counting prison populations as residents of the rural counties should be expected to have an even larger effect. But in almost all California counties with prisons, these counties rejected the flawed Census data and drew districts on the basis of actual population.
One would expect the miscount problem to have a more significant affect on county governments because local districts are smaller and more easily skewed by miscounted prison populations. For example, in Lassen County, including the prison population would have meant a district that was entirely disenfranchised prisoners with no possibility of representation.
But many local governments have rejected flawed census data, instead drawing legislative districts based on the numbers of legitimate residents. Excluding incarcerated men and women from their local district population counts ensures that every vote that is cast by a district resident will be weighted the same as every other vote regardless of whether or not he or she happens to live near a prison.
There are 12 California counties where a large percentage of their “residents” are actually people incarcerated at prisons that happen to be located in the county. In all but two of these counties, the county adjusts census data when drawing county legislative districts to prevent the prisons from skewing local democracy.
One of the counties that avoided the prison-based gerrymandering problem is Madera County. When the county’s Board of Supervisors reapportioned districts after the 2000 Census, the women incarcerated in the two women’s prisons located in the county were not included in the population counts used for districting. In Kern County, the County Clerk told us that the prison population was excluded because “prisoners can’t vote and don’t receive local services.”
The 10 counties that avoid prison-based gerrymandering despite having large prison populations attributed to them in Census data are:
Of the 12 counties studied, Marin and Solano counties are the only counties that do not adjust the Census data for redistricting purposes. In Solano county District 4 derives 11% of its required population from people incarcerated in CSP-Solano and California Medical Facility. This means that in Solano, the actual residents of District 4 have more weight to their vote than those living in the other county districts. Effectively, this gives each group of 89 people in District 4 as much political clout as 100 people elsewhere in the county.
Often states have a small population deviation between districts, but California is one of two states that choose to prioritize population equality and draw all districts exactly the same size. Each federal and state legislative district in California is drawn to contain exactly the same number of people. After the 2000 Census, California’s Congressional, Assembly and Senate districts were drawn to each contain the same population of 639,088, 423,395 and 846,791 people, respectively.
Yet, this effort at population equality failed due to a flaw in the Census data that was used to draw the districts. This problem is illustrated by a cluster of districts in the Central Valley: 8.6% of the 30th Assembly district is incarcerated in state prisons, 5.7% of the 20th Congressional district is incarcerated in state prisons, 4.3% of the 16th Senate district is incarcerated in state prisons.
In each of these districts, every group of 91 to 94 people are given as much influence in Sacramento as 100 people from any other district that is not itself padded with large prison populations.
Crediting many of California’s incarcerated people to a few locations, far away from home, enhances the political clout of the people who live near prisons, while diluting the voting power of all other Californians. In drawing exactly equal districts, California clearly prioritizes the principle of equal representation, but the Census Bureau’s miscount of incarcerated people undermines the state’s attempts to draw equal districts. The systematic practice of counting incarcerated people in the wrong part of the state leads to unequal, unfair, and undemocratic districts.
The current districts, based on the 2000 Census, give more representation to those who live near prisons. California has built more prisons since the last Census, so unless action is taken soon, California will suffer greater prison-based gerrymandering problems when it redistricts after the 2010 census.
California can fix the Census data by collecting the home addresses of people in prison and then adjusting the U.S. Census counts prior to redistricting. Legislation with these goals has been introduced in Connecticut, Florida, Illinois, Maryland, New York, Rhode Island, and Texas and is modeled after Kansas’ adjustment of federal census counts of military personnel and students.
This plan would require the state to collect home residence information for state and federal prisoners. The state would process this data and adjust Census data for redistricting purposes to reflect actual residential addresses of California’s population.
Note that, under federal law, states are not required to use Census data when drawing state and local districts. See, Borough of Bethel Park v. Stans, 449 F.2d 575, 583 n.4 (3rd Cir. 1971).
If there is not enough time for California to gather the required address information for its incarcerated populations, there is an intermediate solution available.
States can treat the prison populations as if the addresses of the incarcerated people were unknown, and use this data when drawing their state district lines. This approach would not credit incarcerated people back to their homes, but it would end the practice of crediting them to different communities of interest in the wrong part of the state. It has been endorsed as a viable interim solution by the National Research Council of the National Academies, the editorial board of the New York Times, and legislation taking this approach is currently pending in Minnesota and Wisconsin.
Many California counties, including Amador, Del Norte, Imperial, Kern, Kings, Lassen, Madera, Monterey, San Luis Obispo, and Tuolumne Counties, already use this approach to districting. In redistricting for the coming decade, this approach will be made even easier as the Census Bureau recently announced that it will be publishing the necessary data earlier in order to give state and local governments time to use it for redistricting.
The ideal place to fix the prisoner miscount is at the U.S. Census Bureau. Historically, the bureau has been responsive to the needs of its data users when deciding how to count the population, so California state and local officials should lobby the Bureau directly. Change at the Census Bureau would eliminate any conflict between Census data and residence rules and California law.
While insufficient time remains for the Census Bureau to change where incarcerated people are counted in 2010, California should start asking the Bureau to make the change in future Censuses. In the mean time, in order to protect its next round of redistricting, California must explore other options at the state level in order to protect the fairness of its redistricting process.
This report uses the correctional facility populations as counted by the Census Bureau and published in Summary File 1, Table P37. Our analysis is based on a subset of these data, filtered to include only state or federal prisoners and not people in jail, halfway house residents, etc. Our filtering methodology is documented in Section 2 of The Democracy Toolkit (2007).
Our analysis of the impact on county board districts follows the methodology in the Democracy Toolkit to determine whether prison populations were excluded from districts and to calculate the resulting vote dilution in counties that included them. While Kings County declared on their map that the prison populations were excluded, other counties published the population totals for their districts and the total county that made it obvious whether the prisons were included. Other counties did not publish the population totals for their districts, so we calculated the population totals by overlaying Census data over the county district maps in Arcview. In the counties that publish electronic files with the shapes of their districts, this calculation was straightforward. In other counties, we recreated their paper maps in Arcview and then calculated the population totals using both official Census data and a special version of the Census data with the prison populations removed. Where the total population (excluding the prison population) in each district approximated the ideal district size for that county, we were able to confirm that the districts were indeed based on population data revised to exclude the prison populations.
Aleks Kajstura is an attorney and Legal Director of the Prison Policy Initiative. Volunteering since 2003, she helped develop the Prisoners of the Census project. Aleks was also the lead author of the report, The Geography of Punishment: How Huge Sentencing Enhancement Zones Harm Communities, Fail to Protect Children. After graduating from the Benjamin N. Cardozo School of Law in May 2008, Aleks assumed the position of President of the Prison Policy Initiative Board of Directors. In November 2009, after a clerkship at the Connecticut Superior Court, she joined the Prison Policy Initiative full-time, as legal director.
Peter Wagner is an attorney and Executive Director of the Prison Policy Initiative. In 2002, he authored the first district-by-district analysis of the impact of Census counts of prisoners on state legislative redistricting, Importing Constituents: Prisoners and Political Clout in New York (2002). He has presented his research at national and international conferences and meetings, including a Census Bureau Symposium, a meeting of the National Academies, and keynote addresses at Harvard and Brown Universities. His publications include, with Rose Heyer, Too Big to Ignore: How Counting People in Prisons Distorted Census 2000 (2004) and, with Eric Lotke, Prisoners of the Census: Electoral and Financial Consequences of Counting Prisoners Where They Go, Not Where They Come From [PDF] (2005).
This research was supported by grants from the Public Welfare Foundation and The After Prison Initiative of the Open Society Institute.
The Massachusetts-based non-profit, non-partisan Prison Policy Initiative documents the impact of mass incarceration on the larger society. Focusing on a once-obscure Census Bureau glitch that counts people in prison where they are temporarily held instead of the communities they come from; the Prison Policy Initiative demonstrates how the prison system reaches beyond prisons to punish people and communities not under criminal justice system control. The organization’s work to change how people in prison are counted has won the support of the New York Times editorial board and the Census Bureau’s own advisors at the National Research Council.
1 U.S. Department of Justice, Historical Statistics on Prisoners in the State and Federal Institutions, Yearend 1925-1986, Table 1, p.12.
2 State prisoners in California, latest available data is yearend 2008. U.S. Department of Justice, Sourcebook of Criminal Justice Statistics Online, Table 6.30.2008, available at: http://www.albany.edu/sourcebook/pdf/t6302008.pdf .
3 Reynolds v. Sims 377 U.S. 533 (1963).
4 Subsequent U.S. Supreme Court cases defined the limits of "substantially equal." In White v. Regester, the Court ruled that the state of Texas was not required to justify how it drew lines when the average district deviation is less than 2% from the ideal district size, and the maximum deviation was 9.9%. Allowing these differences in district population sizes helps to protect other legitimate state interests, such as keeping communities of interest in the same legislative district. Today, most state and local governments draw their districts so that the smallest district is no more than 5% smaller, and the largest no more than 5% larger, than the average district; keeping the total difference to under 10%.
5 Similar language was in the California Constitutions of 1849, 1879, 1894. The principle that the location of the prison does not determine the residence of those incarcerated in it was upheld in Hillman v. Stults, 263 Cal. App. 2d 848 (1968, 2nd Div.).
6 "Madera County Supervisors Tweak District Boundaries," Charles McCarthy, The Fresno Bee, June 26, 2001.
7 Illinois is the other state that draws districts containing exactly equal populations.