14th Amendment is an unintended casualty of Census Bureau’s method of counting prisoners

by Peter Wagner, June 21, 2004

Each decade, the U.S. Census counts the population and then gives the counts to state legislatures for use in redistricting. Legislators take the data and redraw their districts so that each contains the same number of people. Equally sized districts ensure that each person in each district has an equal access to government. This practice is known as the “One Person One Vote” rule and has been the law of the land since the Supreme Court interpreted the 14th Amendment of the Constitution to require districts of equally sized populations in the 1963 case Reynolds v. Sims.

The problem? Based on a methodology developed more than two centuries ago, the Census Bureau counts the nation’s now 2 million prisoners as if they lived at the prison. The method of counting other “special populations” has evolved over time, but the way that prisoners have been counted has gone unquestioned until recently.

Prisoners can’t vote and they are residents not of the prison town but of communities often very far and very different from the prison. While prisons are unquestionably big industries in many rural areas, the temporary physical presence of the prisoners does not make prisoners a part of the prison town in any legal or social sense.

Crediting rural towns with the prison population reduces the number of real rural residents required for a district. This boosts the weight of rural votes while diluting the strength of a vote in the prisoner’s home district.

When the Supreme Court required state legislative districts to be divided on an equal population basis, it explained its rationale. “[L]egislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.” The principle is that “[T]he weight of a citizen’s vote cannot be made to depend on where he lives.”

Prisoners are external populations that are not “traditionally” rural in any sense of the word. Allowing communities to take in populations by force, just to benefit at the state legislature, violates any sense of equal protection or fundamental fairness.

As Rose Heyer and I argued in the Too Big to Ignore: How counting people in prisons distorted Census 2000 report, counting prisoners this way unnecessarily complicates the work of anybody who wants to draw useful conclusions from Census data. But it’s not the Census Bureau that is violating the 14th Amendment here. Rather, the guilty party is state legislators that rely on federal Census counts to divide districts among their state populations.

In general, the Census Bureau does a great job counting the country. It is unfortunate that a population that should be so easy to count — state governments count their prisoners multiple times each day — creates so many problems for the users of Census data. States that wish to rely on the Census Bureau’s otherwise excellent data and comply with the U.S. Constitution’s One Person One Vote principle would be well served to ask the Census Bureau to update how it counts the incarcerated.

To do otherwise is to damage the 14th Amendment.

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