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. Unfortunately, that didn't happen in time for the 2020 Census, but there is still time to change how state and local governments use the data published by the Census Bureau this redistricting cycle.
In fact, 2 states already counted incarcerated people at their home addresses for state and local redistricting purposes in the 2010 redistricting cycle, while 8 others have passed laws that are now first in effect for the 2020 redistricting cycle, 1 has a legislation in place for 2030, and 2 others are implementing reform through their redistricting commissions without direct legislative action. And more than 200 rural governments have already implemented similar solutions on their own.
“Although a state is entitled to the number of representatives in the House of Representatives as determined by the federal census, it is not required to use these census figures as a basis for apportioning its own legislature.” Borough of Bethel Park v. Stans, 449 F. 2d 575, 583 (C.A. 3, 1971)
States can correct the Census data by creating a special state-level census that collects the home addresses of people in prison and then adjusts the U.S. Census counts prior to redistricting. Legislation has already passed in California, Colorado, Connecticut, Delaware, Illinois, Maryland, Nevada, New Jersey, New York, Virginia, and Washington State.
The New York and Maryland bills ended prison gerrymandering in both the state legislature and in local governments. In some states, however, the legislative or executive branches have helped to eliminate prison gerrymandering only for local governments before they eventually passed laws to apply to state districts as well. And before Colorado and Virginia expanded their laws, in Colorado state law required counties to ignore the prison populations, and Virginia law encouraged counties with large prison populations to ignore the prison populations, and New Jersey law required school districts to be drawn without regard to prison populations. And the Mississippi Attorney General directs counties to do the same, even as the state legislative districts remain skewed by prison gerrymandering. Our quick reference chart gives an overview of the current statutes.
Although the 2020 Census has passed, states that act quickly can still eliminate or reduce the impact of prison gerrymandering in state and local government this redistricting cycle.
First, in preparation for 2030, the state can standardize the collection of home address information when people enter the custody of the Department of Corrections. Over time, this will generate a complete dataset of home address information for use in future redistricting or for the Census Bureau to use directly.
Second, the state can prohibit state, county and municipal legislative districts from using prison populations as padding. The populations counted in correctional facilities should be declared as living as "addresses unknown" and only counted at-large rather than in any specific geography in the data used for redistricting, except where home address data exists and a state agency can adjust the Census Bureau's redistricting data to reflect those people being counted at home. This solution would immediately eliminate the majority of the electoral harm caused by prison gerrymandering and would, by the next Census, provide a complete solution that counted everyone in the correct location.
(Prison gerrymandering is the result of two related, but distinct, problems that require two separate solutions. First, the Census Bureau counts incarcerated people as residents of the wrong location (at the prison). Second, the Census Bureau fails to count incarcerated people as residents of the correct location (at their homes). Because the nation's 1.4 million state and federal prisoners are credited to just 1,000 prison locations, the first problem creates the bulk of the prison gerrymandering's representational dilution. Interim solutions that avoid counting incarcerated people in the wrong place in the redistricting data, have been endorsed by the NAACP and the National Research Council of the National Academies. The editorial board of the New York Times and other groups have also endorsed this sensible interim solution.)
Our legislation page has links to model legislation, pending bills and past legislative efforts. And the report, Implementing Reform: How Maryland & New York Ended Prison Gerrymandering provides a detailed account of how such laws are actually implemented.
More than 200 rural counties and other forms of local government currently ignore the prison populations when drawing districts or designing weighted voting systems. Many rural counties with large prisons consider the problem large and the solution obvious, although we know of only one county to put an explanation right in to law:
“Persons incarcerated … live in a separate environment, do not participate in the life of Essex County, and do not affect the social and economic character of the towns…. The inclusion of these federal and state correctional facility inmates unfairly dilutes the votes or voting weight of persons residing in other towns within Essex County.” (Essex County New York Local Law No 1 of 2003)
Except for a handful of states were the law prohibits adjusting the Census prior to redistricting, almost all counties and cities that engaged in prison gerrymandering do so unknowingly, or at least without public notice. With one exception, when the public learns that incarcerated populations are distorting their access to local government, they successfully insist that fair districts be drawn without the prison populations. The remainder of local jurisdictions that drew districts based on the prison populations generally did so only because they didn’t know they legally could adjust the data or that it was technically possible to do so.
The Census Bureau's decision to publish the Advance Group Quarters Table made it that much easier for communities to avoid prison gerrymandering after the 2010 Census, and for the 2020 Census, that same data will be available even earlier and will be bundled into the Census' redistricting data (PL 94-171 tables). This will enable governments to know for sure which populations are incarcerated and they can choose to exclude those numbers for their districts. Counties and other local governments should take this opportunity to end prison gerrymandering and ensure equal representation for their residents.
The Census Bureau has already made an important, if subtle, change. The Census Bureau agreed to publish prison count data earlier than in the past, in order to assist states and counties with reallocating or removing incarcerated populations during the 2010 redistricting process, and for 2020 will release the data even earlier, bundling the prison count with the traditional (PL 94-171) redistricting data.
Ideally, the U.S. Census Bureau will count incarcerated people as residents of their legal home addresses and not as residents of the correctional facilities. The Census Bureau should, as part of their research and planning agenda for the 2030 Census, determine the best and most economical way to properly count incarcerated people as residents of their home communities.