Without Representation: Prison-based Gerrymandering and Felony Disenfranchisement

by Rita Shah

Alcatraz. Photo credit: Rita Shah.

In all the talk of the 2018 midterms, one story kept breaking through: the need to address gerrymandering is gaining steam. In my own state of Michigan, a grassroots effort gained enough signatures and overcame a court challenge to get a ballot proposal calling for an independent districting commission placed on the November ballot, which was approved on election night. Anti-gerrymandering ballots in three other states, Colorado, Missouri, and Utah, also passed.

What is not clear from these proposals, however, is how these commissions and measures will address prison-based gerrymandering. Prison-based gerrymandering counts those in prisons as residents of the prison in which they are held rather than residents of the districts in which they lived before incarceration. This means that when it comes time to divvy up federal, state, and local representatives, these districts end up with less representation than districts in which prisons are located. In many ways, this type of gerrymandering is another version of disenfranchising those with a felony conviction and the communities from which they come, further entrenching racial disparities in political representation.

Gerrymandering and Prison-based Gerrymandering Explained

Most people are familiar with gerrymandering, or the way congressional and state districts are drawn to favor one party over the other. In most cases, these districts are drawn by state legislators.

Prison-based gerrymandering, however, starts with the Census Bureau. During the decennial population count, the Census Bureau counts those in prison as residents of the prison, rather than of the cities and towns they came from and will likely return to. To date, the Census Bureau has been reluctant to change this practice and will continue the practice in the 2020 count.

In some ways, the decision to count where people they are at the time of the count makes sense. The Census uses the concept of “usual residence” — “the place where a person lives and sleeps most of the time” — rather than voting or legal residence to determine where to count someone. If the goal of the Census count is to determine how many people are located in a particular space, then one could argue that a prison is the “usual place” for those housed there, as the Census Bureau does.

The issue, however, comes when states use the Census data to determine their districts. The Census Bureau is required by law to give states its data from the decennial count. This data is then used to determine state and federal congressional districts. While four states and 200 local governments re-locate those in prison to their residence prior to incarceration, and the current Census Director encourages states’ Attorneys General to take this approach, the vast majority of states and local governments do not.

The problem with this approach is best explained by The Prison Policy Initiative: “Because prisons are disproportionately built in rural areas but most incarcerated people call urban areas home, counting prisoners in the wrong place results in a systematic transfer of population and political clout from urban to rural areas.”

This ultimately results in disproportionate representation in districts with a prison. This disproportionate representation and power is exemplified by the case of Anamosa, IA, which was discussed in the documentary Gerrymandering. In Anamosa, an individual was elected to the city council with only two votes. In this case, prison-based gerrymandering also harmed the district in which the prison is located as it limited not only who could vote, but also who was eligible to run for office.

Link to Felony Disenfranchisement

Aside from creating disproportionate representation at all levels of government, prison-based gerrymandering is another means of disenfranchising those with a felony conviction. Felony disenfranchisement — or the various ways those with a felony conviction are barred from voting — is another issue gaining traction in the public sphere. Efforts to address felony disenfranchisement have led to a series of reforms in the past few decades. In this year’s midterms, Florida voters approved an amendment to the state constitution that restores voting rights to almost all convicted felons upon completion of their sentence.

Restrictions on voting vary by state. Only two states, Maine and Vermont, do not have any restrictions. This means that in 48 states, those in prison cannot vote. And this is the insidious nature of the “usual residence” designation of those in prison. Not only do they not count towards the districts in which they live, but they also cannot vote in the districts in which they are counted.

In other words, those held in prisons are without representation at the local, state, and federal level. And this lack of representation continues after release as the “usual residence” requirement limits the representation of the communities in which they live. No matter when the impact occurs, prison-based gerrymandering seriously harms the “one person, one vote” doctrine driving our democratic system.

Further Disenfranchising Underrepresented Communities

The impact of prison-based gerrymandering is the same as felony disenfranchisement broadly: both policies further disenfranchise already underrepresented communities.

People of color make up over 60% of people in prison. And, when these individuals return to the community, they are concentrated in only a few neighborhoods. The neighborhoods they lived in prior to incarceration and return to after incarceration have higher rates of poverty, unemployment, single-family house households, and reliance on public assistance. For a variety of reasons, those with a lower socio-economic status are underrepresented in both the political process and elected officials.

Counting prisoners outside of these neighbors only further disenfranchises these neighborhoods. The policy implications of this disenfranchisement are obvious: decisions about how to address poverty, criminal justice reform, policy brutality, funding for schools, welfare reform, and a slew of other decisions are being made by individuals who are not representative of these neighborhoods and not directly impacted by these policies.

Solutions

If we truly want a representative democracy and want voting to be more equitable across the country, then addressing prison-based gerrymandering has to be a part of the conversation. There are several options for addressing this problem.

The easiest solution is for the Census Bureau to change how it defines the “usual residence” of those in prison. The Bureau reviews these guidelines prior to each decennial count and it had the chance once again prior to the 2020 count. Even with almost 78,000 comments in favor of this change, the Census Bureau refused to do so.

Unless and until the Census Bureau changes its mind, addressing prison-based gerrymandering falls to state and local governments. States can pass legislation that requires redistricting commissions to use the address prior to incarceration rather than the prison, and several states have already done so. Local governments can follow a similar process when determining local districts. One way the Census Bureau can make this process easier is by changing how it delivers its data to states.

Finally, litigation has also been successful in addressing prison-based gerrymandering. But, again, unless the Supreme Court of the United States rules prison-based gerrymandering as a whole is unconstitutional, such litigation is a piecemeal solution at best.

In the end, those impacted by prison-based gerrymandering are at the whim of elected officials and the Census Bureau. And the kicker, of course, is that those individuals have very little reason to address it. Until those of us with the power to vote use our privilege to push for change, the cycle of unequal votes and representation will continue.


Rita Shah is an assistant professor of criminology at Eastern Michigan University and a member of the Diversity Scholars Network at the National Center for Institutional Diversity. Her research combines textual analysis with qualitative and visual methods to understand the ways in which correctional systems are socially and legally constructed.

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