Federal Census policy breaks West Virginia’s democracy — state lawmakers can fix it

West Virginia’s redistricting data was once again skewed after the 2020 Census; the state needs to take action to fix the issue for 2030.

by Aleks Kajstura, June 12, 2025

Everyone in West Virginia is supposed to have an equal voice in their government’s decisions, but an outdated and misguided Census Bureau policy that counts incarcerated people in the wrong place gives a few residents of the state a megaphone. It is a problem known as prison gerrymandering, and West Virginia lawmakers can fix it.

West Virginia blindly follows outdated bureaucratic federal policy

Every ten years, when the Census Bureau conducts its official tally of the nation’s population, it incorrectly counts incarcerated people as residents of prison cells rather than in their home communities. This is despite the fact that they usually are not from the prison town, have no family or social ties there, likely won’t stay there for long, and state residence law says they’re not residents there. When state officials then use that incorrect Census data in the legislative redistricting process, they inadvertently inflate the populations of those areas — in violation of constitutional principles of equal representation. This gives residents of state legislative districts that contain correctional facilities a particularly loud voice in government, allowing them to have an outsized influence on debates about regulating food, data center development, voting restrictions, sentencing for drug-related offenses and more, at the expense of nearly every other person in the state.

That is why states across the country have taken steps to fix the problem that the Census Bureau created. But, West Virginia is one of the remaining states still suffering from this “prison gerrymandering.” While the 2030 Census count is still years away, West Virginia needs to act now to avoid prison gerrymandering the next time it redraws its districts.

Prison gerrymandering significantly distorts West Virginia’s state legislative districts

In West Virginia, there are three House of Delegates districts that powerfully illustrate how prisons distort district populations and give some residents a louder voice in government as a result of prison gerrymandering.

In these three House of Delegates districts — districts 83, 45, and 63 — correctional facilities account for as much as 18% of the population. In District 83, for example, correctional facilities make up roughly 18% of the population. That means that just 82 residents of that district have as much political clout as 100 residents in other districts. That imbalance in representation comes from the state choosing to redistrict based on Census numbers that don’t match the reality of where people live.

These three districts are the most prison-gerrymandered state legislative districts in West Virginia. Large chunks of their population are made up of prisons that contain people from other parts of the state — from every single county, in fact — and all over the country, instead of local residents. State and regional facilities regularly contain people who are incarcerated far from home, have no ties to the communities where the facilities are located, and are moved regularly between facilities for administrative convenience.

Even worse, the largest facilities in these districts don’t even contain West Virginia residents. The Hazelton, Beckley and Gilmer federal facilities are used by the Federal Bureau of Prisons to hold people from all over the country. Only about 0.5% of the Bureau of Prisons population comes from West Virginia, which means out of the 6,801 people held in federal facilities in these three districts, only about 41 people are likely West Virginia residents. And the chances of all or most of that group being actual residents of these three specific districts are incredibly slim.

Residents of other states shouldn’t be counted as part of a West Virginia district’s population. Simply put, being incarcerated in a specific facility doesn’t make someone a resident of the surrounding district.

Prison gerrymandering disproportionately harms West Virginia’s Black residents

Prison gerrymandering reduces the political power of nearly all West Virginia residents by allowing a few districts with large correctional facilities to claim residents from all over the state. And while it does that, it also enshrines the racial inequities of mass incarceration into the state’s legislative districts.

In West Virginia, like across the country, mass incarceration has a disproportionate impact along racial lines. In West Virginia, Black residents are incarcerated at disproportionate rates and, therefore, are counted in the wrong place more often than West Virginia’s white residents.

The racial impact of prison gerrymandering is so strong that, for example, over half of the Black people counted in House of Delegates District 66 were actually behind bars, rather than living in the community. They were held at the Huttonsville Correctional Center and Tygart Valley Regional Jail, so the vast majority of them were West Virginia residents who were counted away from their own West Virginia district.

Data on West Virginia’s own state prisons and regional jails — excluding the federal facilities in the state — shows the state’s Black residents are disproportionately impacted by the state’s incarceration policies.

Black residents make up just 3% of the state population, but a whopping 14% of people in prisons and 13% of people in jails. That is in stark contrast to the white population, which makes up 91% of the state but only 85% of the prison population and 86% of the jail population.

This means that the Census Bureau policies are effectively silencing the voices of a large portion of the state’s Black residents.

West Virginia law says a prison cell is not a residence. Census Bureau policy disagrees

Not only does the Census Bureau’s redistricting data cause prison gerrymandering, it also doesn’t comply with West Virginia’s law. In residence law, the intent to stay somewhere is a key component of determining residence. And that common legal principle was adopted by the West Virginia Supreme Court in State v. Beale nearly a hundred years ago. The court made clear that just being present in a place doesn’t make you a resident there. It explicitly requires a person to have an intent to reside there:

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, 628 (1927)

Most incarcerated people don’t intend to live in prison or jail — or the surrounding community. Incarcerated people don’t generally stay in the area of the prison after their release and almost always go back to the communities they came from — if not the exact address they lived at before their arrest. So, under West Virginia law, they aren’t residents of the facility location.

Instead of following state law, though, the Census Bureau follows its own “residence rule” to choose where to count incarcerated people — where they “live and sleep most of the time.” But it doesn’t even follow this rule properly when it comes to counting incarcerated people.

The Census Bureau counts incarcerated people at the location of the facility where they happen to be held on Census Day under the mistaken belief that that is where incarcerated people “live and sleep most of the time.” The facts, however, do not support its interpretation of its own definition of residence. It is well-established that in the modern era of mass incarceration, incarcerated people do not “live and sleep most of the time” at the facility where they are held on any given day (including Census Day). Nationally, 75% of people serve time in more than one prison facility, and 12% of people serve time in at least five facilities before returning home.

Representation in local government is also harmed by prison gerrymandering

The impact of prison gerrymandering is also clearly visible at the small scale: city governments.

For example, in the city of Charleston, there is a City Council ward where incarcerated people account for 16% of the ward’s population. Ward 19 contains the Kanawha County South Central Regional Jail. The result is that 84 people in Ward 19 have the same power as 100 people in the wards that do not contain correctional facilities.¹

Facing these absurd distortions in representation, local governments across the country are taking matters into their own hands and, rejecting the Bureau’s way of counting incarcerated people, even when states fail to act.
In most cases, adjusting redistricting data to avoid prison gerrymandering is quite easy for local governments. However, the state can provide a more efficient and complete solution for its local governments. Although it is not fair that the state has to correct for this federal issue, the state is in a better position to take on that burden than each individual city.

Nationally, state and local governments are addressing the problem, but West Virginia is lagging behind

Over the course of the last few decades, over 200 local governments and a growing number of states, have taken action on their own to fix this problem. Nearly half of the US population now lives in a place that corrects redistricting data they receive from the Census to avoid prison gerrymandering.

States that have ended prison gerrymandering on their own include deep “blue” states like California, “purple” states like Maine and Pennsylvania, and deep “red” states like Montana — where prison gerrymandering-reform legislation received wide bipartisan support. But West Virginia is falling behind, letting the state’s democracy continue to be skewed by an outdated federal system.

West Virginia needs to take action now

Adjusting redistricting data to avoid prison gerrymandering is now a well-tested strategy with a proven track record. In fact, the bipartisan National Conference of State Legislatures called this effort “the fastest-growing trend in redistricting.” West Virginia can now confidently pass legislation to count incarcerated people at home for redistricting purposes. Other states have already been successful in these efforts, paving the way for West Virginia. And the state would have the benefit of refining its approach based on lessons learned by states that have gone through the process before. And it is easier than ever for states to act; even the Census Bureau is starting to acknowledge the problem and help.

2030 may seem far away, but other states have learned that the earlier that reforms are put in place, the less expensive, easier to produce, and more accurate the final redistricting data becomes. Every state has a different legislative approach to ending prison gerrymandering, but as a practical matter, this model bill, prepared by a coalition of civil rights, voting rights, and criminal justice organizations, is a great place to start. It provides clear guidance on how this data should be collected, by whom, and how it will be used for the redistricting process.

The Census Bureau is unlikely to change its policies about how to count incarcerated people in time for the 2030 Census, meaning that unless West Virginia acts quickly, the state will once again be driven into prison-gerrymandering their legislative districts.

West Virginia needs to end prison gerrymandering now.

Appendix: Correctional facility populations in West Virginia House of Delegates Districts, 2020 Census

About the Data

Correctional Facility Populations: To calculate the percentage of each district’s population that was in correctional facilities, we used the redistricting data (PL 94-171) from the 2020 Census. Table P1 provides the total population for each Census block and Table P5 provides the number of incarcerated people for each Census Block. Notably, this approach includes people in all kinds of correctional facilities, including state prisons, federal prisons, private prisons, local jails, halfway houses, etc.

Identifying specific facilities:Table P5 provides the population of correctional facilities without distinguishing between state, federal, or private facilities and it is published for each Census block. Census blocks do not necessarily translate directly to facilities, as some facilities are counted in multiple blocks and some blocks contain multiple facilities. To aid redistricting officials and advocates with using this data, the Prison Policy Initiative maintains a Facility Locator Tool that contains annotations of most of the Census blocks in the country that contain correctional facilities. These annotations rely on publicly-available data to identify facility names and types in each of these blocks.

Calculating how many West Virginia residents are held by the Bureau of Prisons:
Our calculations on the number of people in federal prisons in each state are based on data provided by the Bureau of Prisons in response to our periodic Freedom of Information Act requests.

How this report quantifies prison gerrymandering compared to other analyses: There are a few ways to calculate the impact of prison gerrymandering, so other researchers may have used slightly different approaches that generate slightly different numbers for the same general problem. For example, some analyses only focus on prisons and exclude jail populations. That choice makes sense when looking at state-level policies and state districts because people in jails are very likely to also live in the legislative district where the jail is located. However, for this analysis, we included jails as well as state correctional facilities because 23% of the people held in West Virginia’s jails are held for state and federal authorities. Still other approaches, such as that taken by the Redistricting Data Hub, are based on estimates of incarcerated people’s home addresses. That approach adds an additional level of precision for counting people held in state facilities because it seeks to not only address where these people were counted incorrectly — which accounts for the bulk of prison gerrymandering’s population distortion — but to also estimate where they should have been counted. Unfortunately, this approach isn’t able to reflect where people in federal facilities, most jails, and private facilities are from. And so, for simplicity, this report doesn’t use that approach.

Each of these approaches has its own merits, and none are universally better than others; they all highlight different aspects of how prison gerrymandering skews population numbers, and each has its own use. The complexities inherent in the current patchwork approach to identifying and solving prison gerrymandering point to the need for the Census Bureau to count incarcerated people at home in the first place in order to provide a comprehensive solution to prison gerrymandering.