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No County For Old Prisoners: One Person, One Vote

The federal government, in the form of the Census Bureau, is permitting states and counties all over the country to undermine the “one person, one vote” concept.

Published: October 7, 2013


Fifty years ago, in two vital cases you don’t hear much about anymore, the United States Supreme Court set forth a “one person, one vote” stand­ard for legis­lat­ive redis­trict­ing that we all think we live under today. In Baker v. Carr and Reyn­olds v. Sims, the Court estab­lished the concept that resid­ents of rural counties were not entitled to more (or less) repres­ent­a­tion than voters in urban counties. “Legis­lat­ors repres­ent people, not areas,” the Court ruled in Reyn­olds.

Now let’s jump ahead half a century for a lesson in how even the Court’s noblest endeavors can be under­mined by prac­tical real­it­ies. The federal govern­ment, in the form of the Census Bureau, is permit­ting states and counties all over the coun­try to under­mine the “one person, one vote” concept. The Census Bureau is doing this by count­ing prison inmates as resid­ents of the pris­ons where they are serving their sentences instead of count­ing them as resid­ents of the places they lived before they were incar­cer­ated. Then, to make matters worse, when the inmates go back to their resid­ences, their prison “districts” continue to reap the bene­fits of the Census count. In a nation where millions are incar­cer­ated, this is no small account­ing glitch.

The result is that rural counties (where pris­ons typic­ally are located) gain the bene­fit of higher Census popu­la­tions (and thus more legis­lat­ive repres­ent­a­tion). The prob­lem would be one of semantics, of course, if pris­on­ers were allowed to vote. But in the vast major­ity of cases, felon disen­fran­chise­ment laws ensure that they do not. So the inmates help give rural resid­ents and their lawmakers more power without gain­ing any of the bene­fits them­selves—all at the expense of the urban communit­ies where most of the inmates came from. Only Maine and Vermont are excep­tion­s—there pris­on­ers are specific­ally coun­ted in their own districts.

Lawyers for the NAACP call this phenomenon “prison-based gerry­man­der­ing” and offer some start­ling stat­ist­ics in support of its push to restore the prom­ise of “one person, one vote.” They write: 

African-Amer­ic­ans are 12.7% of the general popu­la­tion, but are 41.3% of the federal and state prison popu­la­tion. Members of the dispro­por­tion­ately minor­ity incar­cer­ated popu­la­tion are largely held in areas that are both geograph­ic­ally and demo­graph­ic­ally far removed from their home communit­ies: in New York, for example, approx­im­ately 77% of all pris­on­ers are African-Amer­ican or Latino, but 98% of all pris­ons are located in dispro­por­tion­ately white State Senate districts. Nation­ally, rural communit­ies make up only about 20% of the U.S. popu­la­tion, but it is estim­ated that 40% of all incar­cer­ated persons are held in facil­it­ies located in rural areas.

And Fred Grimm, writ­ing in The Miami Herald, last week offered a color­ful account of what this gerry­man­der­ing really means:

North Flor­ida pols have packed their state House districts with a partic­u­larly low-main­ten­ance category of citizens. The kind who don’t show up at town­hall meet­ings clam­or­ing about too much traffic or lousy parks or crum­bling bridges or under-funded schools or the need for more cops on the beat. They never, ever complain about too few cops. Best of all they don’t go around town grumbling that folks should vote for that other candid­ate. They can’t. They can’t vote. They’re state pris­on­ers.

They’re the great gift urban counties ship up to state repres­ent­at­ives in Flor­id­a’s rural prison belt, whose districts encom­pass Sump­ter or Brad­ford or Baker or Hardee or Calhoun and other counties where incar­cer­a­tion is a major local industry and inmates repres­ent a size­able chunk of the local popu­la­tion. Come time to redis­trict, every 10 years, those inmates — most of them big city homies — are coun­ted along with the local popu­la­tion, making pris­on­ers a valu­able polit­ical commod­ity and consign­ing elec­ted offi­cials, partic­u­larly state reps, polit­ical power out of whack with their actual voting constitu­ency.

The good news is that there is grow­ing polit­ical and legal momentum to end this nonsense before the 2020 Census. Members of Congress are call­ing for reform. And four states—C­ali­for­nia, Delaware, Mary­land and New York—have enacted legis­la­tion that adjusts federal Census figures to count the home addresses of pris­on­ers. The United States Supreme Court, this past June, refused to over­turn a ruling that upheld the Mary­land law as a consti­tu­tional exer­cise of the state’s author­ity.  Mean­while, a few other states require counties to subtract pris­oner popu­la­tions from local redis­trict­ing.

But the big push now is to force the Census Bureau itself to right this wrong. The new director or the Census, John Thompson, did not rule out the possib­il­ity of reform at a Congres­sional hear­ing last month. He said he wants to consult “with stake­hold­ers to try to adopt rules that will be most appro­pri­ate to count people.” It’s clear who the stake­hold­ers are on the side of reform. The Prison Policy Initi­at­ive has led the way on this issue.

Less clear is who now intends to stand up in public and declare that it is fair, and consti­tu­tional, for some counties to bene­fit at the expense of other counties by rely­ing upon the Census Bureau’s count­ing of inmates who, of course, are precluded from voting in the first place. At a minimum, prison-based gerry­man­der­ing viol­ates the Supreme Court’s preced­ent in Baker and Reyn­olds. It also may viol­ate whatever is left of Section 2 of the Voting Rights Act. It’s good that Census Director Thompson is listen­ing. Here’s hoping he does­n’t wait too long if he hears only silence from those who support this unequal prac­tice.

(Photo: Pris­on­er­

The views expressed are the author’s own and not those of the Bren­nan Center for Justice.