With unanimous, bipartisan support, Montana ends prison gerrymandering

State asks Census Bureau to end this problem nationwide.

February 13, 2023

For immediate release — This weekend, Montana’s Districting and Apportionment Commission officially approved new legislative maps that count incarcerated people at their homes instead of in prison cells, ending prison gerrymandering in the state. During the redistricting process, ending prison gerrymandering consistently received unanimous, bipartisan support from commission members and was championed by Native American leaders in the state. Montana is the third state to address this problem without legislation¹. It is among more than a dozen states and over 200 local governments that have ended the practice.

Prison gerrymandering is a problem created because the Census Bureau incorrectly counts incarcerated people as residents of their prison cells rather than their home communities. As a result, when states use Census data to draw new legislative districts, they inadvertently give residents of districts with prisons greater political clout than all other state residents. Montana’s actions limited that injustice in the state.

“The maps approved by Montana’s redistricting commission will ensure that all residents of the state have an equal voice in the decisions made by their legislative leaders,” said Aleks Kajstura, Legal Director of the Prison Policy Initiative and a long-time advocate for reform. “This victory represents a clear, bipartisan rebuke of the broken and outdated way the Census Bureau counts incarcerated people.”

In addition to approving new legislative districts, the Commission has called on the Census Bureau to count incarcerated people at home in 2030. In a letter to the Bureau, it notes this change “would create more complete, useful redistricting data for policymakers and line drawers in the future.”

Montana’s success was not without difficulties. As a result of the Census Bureau’s flawed method of counting incarcerated people, the Commission was forced to hire outside experts to fix the data at taxpayer expense. Even still, the state was still hampered by missing address data for many incarcerated people.

“The members of the Districting and Apportionment Commission should be commended for addressing this problem under a tight timeline and with considerable obstacles,” Kajstura said. “The Census Bureau should act on the Commission’s request to change how it counts incarcerated people as it develops rules for the 2030 Census.”

Roughly half of U.S. residents now live in a city, county, or state that has taken action to end prison gerrymandering.

Commission members also asked the state’s Congressional delegation to pass legislation to end prison gerrymandering, asked the state’s governor and Department of Corrections to collect home addresses for incarcerated people, and brought forward legislation to permanently address this issue in the state. The legislation has already passed the Senate with bipartisan support and is currently making its way through the House.

The national movement to end prison gerrymandering began in 2001 when the founders of the Prison Policy Initiative discovered that the sheer size of the prison population, combined with an outdated Census Bureau rule to distort political representation in this country. Since then, more than a dozen states and over 200 local governments have taken action to address this problem.

New York Post editorial shows diversity of support for ending prison gerrymandering

Yet another paper urges Census Bureau to put the issue at the top of its list of changes.

by Mike Wessler, December 6, 2022

As the Census Bureau wrapped up its first public comment period in its planning process for the 2030 Census, an important — and to many, unexpected — voice called on it to finally end prison gerrymandering. In an editorial, The New York Post, which is owned by News Corp — the same company that owns Fox News — called on the Bureau to finally count incarcerated people as residents of their homes instead of in their prison cells.

In its editorial, the Post notes that the Census Bureau’s practice of counting incarcerated people as residents of prisons is “a form of gerrymandering.” It explains that this practice gives extra political power to communities that host prisons at the expense of everyone else. The paper also points out that the Bureau fails to count incarcerated people the same way it does truckers, boarding-school students, military personnel, and others away from home on Census Day.

Some may be surprised that a paper like the Post, which has often taken conservative stances on issues related to crime and incarceration, would join the chorus of voices that have called for an end to prison gerrymandering. However, a closer examination of the history of this issue (including this 15-state summary of editorials and news articles presented to the Census Bureau in 2014) shows it has long received support across the country from both sides of the political spectrum, including.

• Legislation ending prison gerrymandering often garners bipartisan support in states that fall across the full spectrum of party control, from Massachusetts, to New Jersey, to Tennessee.
• More than 200 rural communities that host prisons have taken action to address this problem in their local districts; and
• And most recently, the choice to count incarcerated people at home has received unanimous and bipartisan support from Commission members in Montana.

Redistricting is a notoriously rancorous process, so how has addressing prison gerrymandering managed to avoid being bogged down in partisan political fights?

On a practical level, elected officials — particularly in local government — have experienced the distortive effects of prison gerrymandering firsthand. And, as a matter of principle, the New York Post put it bluntly and eloquently when it said the practice is “fundamentally wrong, and at odds with the Census’ duty to provide a true picture of the nation.”

In closing its editorial, the Post said, “(prison gerrymandering) belongs at the top of the list” of issues the Census Bureau should address in the 2030 count. We disagree with many of the stances the paper has taken on many issues, but on this one, they took the words right out of our mouths.

Washington ends prison gerrymandering in local government districts

New law builds on the previous measure that ended the practice in state legislative and congressional redistricting.

by Mike Wessler, March 16, 2022

Last week, Washington Gov. Jay Inslee signed a bill that strengthens the state’s anti-prison gerrymandering law by making it apply to city, county, and other local governments when they redistrict. Washington was the fifth state to end the practice in state legislative and congressional redistricting. By extending this law to local governments, Washington is now among the gold standard states that have ended prison gerrymandering.

Prison gerrymandering occurs because the Census Bureau erroneously counts all incarcerated people as residents of their prison cell rather than their home community. Most people in prison don’t come from communities where they are incarcerated and return to their home community after release. Because of their small size, local governments feel some of the most dramatic impacts of prison gerrymandering. When a city or county includes a prison’s population when redistricting, it gives residents who live closest to the prison significantly more political clout and diminishes the residents’ voices in other districts.

Under the law, when new census population data is released every ten years, the state redistricting commission will adjust the data to count incarcerated people in their home communities rather than where they are incarcerated. Local governments will then use this adjusted data to draw their new district lines rather than the data provided directly by the Census Bureau. The legislation applies only to redistricting and will not affect federal or state funding distributions.

While the law will not impact the current redistricting process, cities and counties that have not yet drawn new district lines can take steps on their own to draw more fair districts that do not use incarcerated people to pad populations. After the 2010 census, at least three Washington counties took part in prison gerrymandering.

Prison gerrymandering is a problem that can best be solved if the Census Bureau changed its policy to count incarcerated people as residents of their home communities rather than a prison cell. Roughly half of all residents of the United States now live in a city, county, or state that has addressed prison gerrymandering. The actions by Washington to strengthen its anti-prison gerrymandering laws add to the growing consensus that the Census Bureau should end this unjust practice once and for all.

Rhode Island takes a (small) step toward ending prison gerrymandering

Decision by redistricting commission means 44% of people incarcerated by the state will be counted in the right district

by Mike Wessler, January 10, 2022

It is almost time to add Rhode Island to the growing list of states that have taken steps to end prison gerrymandering. Last week, the state’s redistricting commission voted to count some of the people incarcerated at the Adult Correctional Institute (ACI) in their home districts instead, when drawing state legislative and congressional districts. The bipartisan vote of 15-1 showed overwhelming support for what we hope is a first step toward ending prison gerrymandering in Rhode Island.

Although a small step, it is undoubtedly a step in the right direction. Over the last two decades, advocates on the ground have led the charge to end prison gerrymandering, and this change represents the first concrete step taken by the state to draw districts that accurately and fairly count incarcerated people. That is something worth celebrating.

However, the work to end prison gerrymandering in Rhode Island is far from over. Rather than reallocating all people incarcerated at ACI back to their home communities, the state will only reallocate people who were either not yet sentenced on Census Day or people expected to be released by April 1, 2022. That means only 44% of people incarcerated at ACI will be counted in their home districts. It is an unfortunate and arbitrary choice to count such a small portion of people in their home community. The choice is even more frustrating when you remember state law says a person doesn’t stop being a resident of their home district when they are incarcerated. That is true whether someone is incarcerated for a day or a lifetime.

It’s imperfect progress, so what’s next?

The first step is finalizing the new maps in the state. In the coming weeks, the commission will produce its proposals. Then, this spring, the legislature will give the maps final consideration. After that, legislators should look to build upon and solidify the progress that has been made by passing legislation that ensures that all incarcerated people in the state are counted in their home communities for the purposes of drawing district lines in the coming decades.

Ultimately, though, the piecemeal actions taken by the Rhode Island Redistricting Commission are further evidence that the best way to end prison gerrymandering is for the Census Bureau to change the way it counts incarcerated people to end prison gerrymandering nationwide. Now that yet another state has joined the emerging consensus on this issue, there is even more reason for the Bureau to count incarcerated people at home in the first place.

One important action can help end local prison gerrymandering in Wisconsin

A confusing and outdated attorney general opinion has forced Wisconsin local governments into prison gerrymandering, but there is still time to fix this before districts are drawn for the next decade.

by Mike Wessler, October 26, 2021

Small, rural cities and counties are particularly susceptible to the impacts of prison gerrymandering. Low populations and a prison building boom have combined to distort local governance and representation in unanticipated ways.

Few places exemplify this problem as vividly as Wisconsin. Take Adams County, which is north of Madison, for example. After it redrew its lines in response to the 2010 census, this community had a district where incarcerated people made up 62.5% of its population. That means 38 residents here have the same political representation as 100 residents in any other district without a prison. It’s even worse in Waupun, where people incarcerated there make up 75.5% of a district, meaning every 25 residents in this district have the same political clout as 100 residents in other parts of the city.

However, no part of the state feels the distorting local impacts of prison gerrymandering quite like Juneau County. After the 2010 census, as the county looked to redraw its political lines, each district needed to have a population of roughly 1,200 residents to ensure equal representation. However, a new massive prison built recently in the county complicated their efforts to draw fair districts. The prison was so big that if leaders included it in a district, it would mean that twenty residents in that district would have as much political representation as 100 residents in districts without a prison.

John Wenum, a longtime county supervisor who oversaw the county’s redistricting efforts in 2011, recently explained to the Milwaukee Journal Sentinel, “(The incarcerated people) weren’t residents in the normal sense… it actually skewed things in some very significant ways.”

Leaders in Juneau County recognized this was a problem and wanted to fix it, so they sought guidance from the state on how to do that, but were told their hands were tied. They learned an outdated and confusing 1981 opinion from the state’s attorney general directs local governments to draw new district lines without excluding incarcerated people. It requires local governments to take part in prison gerrymandering, even though they didn’t want to. In the absence of other legislative or regulatory guidance, attorney general opinions hold significant legal weight, so Wenum and other leaders felt they had no choice. He told the Journal Sentinel, “The attitude here was ‘We’re not going to rock the boat, we’ll go with the flow.'”

The bad news is this opinion meant that for the last decade, some residents of the county have had considerably more say in the actions of their county government than their neighbors.

But the good news is state and local leaders in Wisconsin still have the opportunity to fix this problem for the next decade.

Attorney general opinions are powerful, but like local district lines, they are not set in stone. Wisconsin’s current attorney general, Josh Kaul, can issue a new legal opinion that updates the outmoded legal reasoning from 1981 and makes it clear that local governments can address prison gerrymandering, and there are plenty of reasons for him to do so.

In recent years, more than a dozen states have taken meaningful actions to end this practice, more than 200 local governments have done so, too. Federal courts have ruled against prison gerrymandering. Even the Census Bureau has recognized the validity of efforts to fix this problem and taken steps to make it easier for governments to exclude or reallocate prison populations when drawing new district lines.

As we speak, cities and counties across the country are beginning the process of redrawing their political districts for the next decade. If Attorney General Kaul takes action soon to issue a new opinion, he can help Wisconsin local governments avoid being stuck with another decade of districts distorted by prison gerrymandering.

Pennsylvania ending prison gerrymandering, Montana close behind

Pennsylvania and Montana poised to become first states to end prison gerrymandering without legislation, a solution the Prison Policy Initiative has recommended in other states as well. New Jersey expands its law to cover congressional and local districts.

by Mike Wessler, August 31, 2021

Redistricting has officially begun across the country, and over the last few weeks, several states have taken important steps to ensure people who are incarcerated are counted at their homes when new districts are drawn rather than in a prison cell.

The most significant of these victories occurred in Pennsylvania, where Rep. Joanna McClinton worked with advocates to add that state to the growing list of places that have ended the practice of prison gerrymandering when drawing legislative districts. This victory was particularly important because instead of relying on legislation, the independent Legislative Reapportionment Commission decided to end the practice on its own, making it the first state to do so. In urging other members of the commission to take this step, McClinton made the implications of the decision clear when she said, “We cannot wait another ten years. The time to correct this injustice is right now.”

The Keystone State may have been the first to address prison gerrymandering through its independent redistricting commission, but it likely won’t be the last. In Montana, a bipartisan consensus has formed on the need to fix the problem. Members of the state’s redistricting commission recently voted unanimously to take steps toward ending prison gerrymandering in legislative redistricting. They also are asking the state’s governor and congressional delegation to take action to help end the practice and urging the U.S. Census Bureau to end prison gerrymandering nationwide–a step we’ve advocated that the agency take for nearly twenty years.

Finally, lawmakers in New Jersey, a state that previously ended prison gerrymandering in legislative redistricting, recently voted to expand their law to make it apply to congressional and local government redistricting as well. The measure was recently signed by Gov. Phil Murphy.

The next few months are sure to be a whirlwind, but it is still not too late for state and local governments to ensure equal representation for their residents. As we’ve seen in Pennsylvania and Montana, states can use their redistricting commissions to solve this issue without legislation. Similarly, cities, counties, and school boards can use information contained in the recently released census data to avoid prison gerrymandering when drawing their new districts.

The redistricting decisions made over the coming weeks and months will have implications for the next decade. As of today, 40% of the country lives in a state, county, or municipality that has formally rejected prison gerrymandering. While new lines are drawn over the coming months, we’re committed to growing this number further.

New quick-reference chart summarizes legislation, prison gerrymandering reform

Our new quick-reference chart helps advocates sift through the differences between states' legislative approaches to ending various aspects of prison gerrymandering.

by Andrea Fenster, August 30, 2021

More than 10 states have now passed legislation ending prison gerrymandering. However, each state has taken a slightly different approach towards achieving that goal, creating laws that sometimes differ in substantive (though not always substantial) ways.

We have created a new quick reference chart to help advocates and legislators sift through and compare some of these differences. Our chart includes the legislative history in each state, a statutory reference, a breakdown of which levels of government the law applies to, whether the law is mandatory or permissive, the different types of institutions covered, and how unknown or out-of-state addresses are dealt with.

Of course, our model legislation offers our best guidance for those looking to end prison gerrymandering in their own states.

Connecticut legislature passes law ending prison gerrymandering; bill heads to Gov. Ned Lamont’s desk

by Aleks Kajstura, May 14, 2021

On Wednesday, the Connecticut General Assembly passed SB 753, a bill that will strengthen state democracy by requiring that incarcerated people be counted as residents of their hometowns, not their prison cells, at redistricting time. If Governor Ned Lamont signs the bill, it will make Connecticut the eleventh state to end the practice known as prison gerrymandering.

This victory is the result of years-long efforts by Senator Gary Winfield and advocates including Common Cause Connecticut, the NAACP of Connecticut, and the Yale Law Peter Gruber Rule of Law Clinic. The law will go into effect for this year’s redistricting process, bringing an immediate end to the prison-driven distortion of representation in Connecticut.

New guide to ending prison gerrymandering for state legislators

A new resource from the Prison Policy Initiative and State Innovation Exchange.

by Aleks Kajstura, March 5, 2020

SiX and the Prison Policy Initiative have released a guide to ending prison gerrymandering for state legislators. Whether you’re new to prison gerrymandering, working on a bill already filed this session, or somewhere in between, there’s something for everyone in this guide — it includes lessons from our previous advocacy, detailed policy recommendations, talking points, and much more.

Virginia poised to become 8th state to end prison gerrymandering, as House votes on SJ18

by Wanda Bertram, February 19, 2020

The Virginia House of Delegates is expected to vote within the next two weeks on SJ18, a constitutional amendment to reform the state’s redistricting process. The amendment and its enabling legislation would also make Virginia the 8th state to end “prison gerrymandering” — ensuring that people in state prisons are counted as residents of their home addresses, and not their prison cells, when new legislative districts are drawn.

Last week, the Senate equivalent of the amendment (SJ18) and enabling legislation (SB203) passed out of the upper chamber. Meanwhile, the House has passed enabling legislation (HB758), but has yet to put the amendment on the floor. Both houses must pass this redistricting reform package by the first week of March so the amendment can go to Virginia voters on November’s ballot.

The House of Delegates should follow the Senate’s lead and pass SJ18. This amendment will bring Virginia one step closer to ensuring equal representation for their residents — a tremendous step forward for civil rights.