The early United States government disapproved of the British Parliament’s “rotten boroughs,” which failed to accurately count districts’ populations (Diamond 2020). To differentiate themselves, the framers developed a more mathematical and representative method of measuring population: the census, and codified this practice in the United States Constitution’s Article I, Section II (Diamond 2020). Every ten years, the United States Census Bureau grapples with the impossible task of counting the nation’s everchanging population and demographics (Ebenstein 324). At the time the Census Act was ratified, the decennial enumeration only impacted Congressional representation (Hamsher 301). Today, the Census impacts state and federal legislative districts and over $140 billion in federal funding (Hamsher 301).
To streamline the enumeration process, Congress ratified the Census Act of 1790 (also dubbed Enumeration Act) (Stachulski 403). Beginning in 1790, the Census Bureau applied the “usual residence rule” in its enumeration process (Hamsher 301). The “usual residence rule” defines each person’s residence as the location where they typically sleep and reside and can differ from the residence a person uses for legal or voting purposes (Kelly 359). They concluded that establishing a “usual residence” is easier than determining and confirming each person’s actual residence (Hamsher 301). Contrary to popular belief, the “usual residence rule” bears no connection to the U.S. Constitution nor any other federal law (301). Rather, it was an internal decision amongst the Census Bureau that, generally speaking, is efficient (301). Per the “usual residence rule,” federal, state, and local carceral facilities were determined to be a category of “group quarters” like military bases or college dorms (Ebenstein 339). Because incarcerated civilians sleep and reside in these facilities while serving time, the Census Bureau includes them as residents of the communities they are confined to (Kajstura and Wagner). Initially, their inclusion bore little to no influence on political representation, redistricting, and funding allocation (Ebenstein, 339).
However, beginning in the 1970s, ‘tough on crime’ rhetoric and the ‘War of Drugs’ of the 80s, precipitated a massive increase in incarceration (Ebenstein 327). Between 2005 and 1970, the incarcerated population in the United States grew over 600% (Hamsher 302). Blatant racial and ethnic disparities at every level in the criminal legal system resulted in the disproportionate incarceration of people of color – the majority of whom are from low-income, Black, and Brown communities (Stachulski 407). To accommodate the ever-growing incarcerated population, both public and private sectors invested in the construction of more prisons, profiliterating the expansion of the prison industry (Stachulski 407).
The American Civil Liberties Union, National Association for the Advancement of Colored People, Prison Policy Initiative, and other prominent civil rights organizations perceive the “usual residence rule” as an affront to the fundamental rights of the 2.3 million incarcerated people in the United States (Stachulski 401). Per the “usual residence rule,” federal, state, and local facilities are likened to “group quarters” or “shelters” like college dorms and hospitals (Ebenstein 339; Stachulski 404). Because incarcerated civilians sleep and reside in these facilities while serving time, the Census Bureau includes them as residents of the communities they are confined to (Kajstura and Wagner 2010). However, most states like California consider incarcerated civilians legal residents of their last address prior to their conviction (Kelly 117). Moreover, the average state sentence is only around two to three years, meaning that many will return to their prior home community shortly after serving time (Stachulski 406). Since the Census’s impact ranges over the next decade, a temporary address (of incarceration) does not represent the actual population like permanent residence or hometown is (406). Not to mention that even while serving time, many incarcerated adults transfer between multiple facilities, crossing city (and often) state lines (406). The only constant is their prior home address (406).
Although state and local authorities acknowledge these circumstances, they have no way to consider them in their reallocation and redistricting processes. The Census Bureau provides states and localities with a file called Public Law 94-171, which enumerates civilians using the “usual residence rule” (Ho, 359). P.L. 94-171 does not differentiate civilians living in “group quarters” like prisons versus more traditional houses and apartment living (359). As a result, the “usual residence rule” overestimates local population counts, awarding districts with higher prison populations more voting power and diminishing voters’ voices in other districts (National Association for the Advancement of Colored People).
While the Census Bureau admits that their decennial survey is not perfect, the core concern facing civil rights scholars and organizations is that the “usual residence” policy overwhelmingly harms low-income and minority communities (National Association for the Advancement of Colored People). Though African-Americans comprise 12.7% of the American population, they are 41.3% of the federal and state prison population (National Association for the Advancement of Colored People). In twelve states, African-Americans make up over half of the prison population (Stachulski 405). In 173 counties across the nation, 50% of the African-American adults in the Census count are incarcerated (Ho 361). Similarly, while only representing 16% of the general population, the Latinx community is 23% of the prison population in the United States (Gramlich 2020). Relative to their white counterparts, African-Americans are five times more likely to be incarcerated, and Latinos are twice as likely to be incarcerated (Stachulski 405). Scholars go as far as to liken prison-based gerrymandering and its racial implications to the three-fifths compromise, arguing that “like slaves – (they) can’t vote but they count as an entire person” (405).
Hailing from predominantly urban communities, Latinx and Black Americans overwhelmingly are incarcerated in white, rural neighborhoods (403). While only comprising 20% of the general population, rural communities retain 40% of carceral facilities (405). Since the Census includes these civilians in the white, rural towns’ population counts, these communities gain more electoral and political clout, costing urban communities of color critical voting numbers, and thus, representation in government (407). For example, in New York City, 66% of the state’s incarcerated population are natives of the city (Ho 362). However, 91% of that population are confined outside the city, in upstate New York (362). In the 2000 Census, roughly 43,000 incarcerated adults from New York City were included in upstate New York counties’ population counts (362). These areas saw an artificial “population growth” of 30%, wholly due to mass incarceration (362). One New York State Senator even admitted that his district, the 59th, only fulfilled the minimum population quota because of its prison population (371). While incarcerated adults – disproportionately Black and Brown from urban communities, already lose their suffrage while serving time in forty-eight states (per federal law), white, rural communities exploit their caged bodies to bolster political clout (405).
Rural communities profit more than just politically and electorally from prison-based gerrymandering. Facing depressions in mining, farming, and manufacturing industries that rural communities historically relied upon, carceral institutions have provided economic stability and employment opportunities and benefits for around 350 rural districts (407). Mass incarceration is exceptionally lucrative for rural communities who now consider the industry a staple in their economies (407). For most rural counties, reaping the economic and political splendors that the prison industry and prison-based gerrymandering provide far outweighs the individual rights and privileges of the incarcerated community (407).
The implications of prison-based gerrymandering permeate throughout the entire country. As of 2011, most of the residents in ten California counties (Amador, Del Norte, Imperial, Kern, Kings, Lassen, Madera, Monterey, San Luis Obispo Tuolumne) were actually incarcerated (Kajstura and Wagner). In Anamosa, Iowa, four electoral districts have 1,400 constituents, respectively (Kelly 117). Of that 1,400 in the second ward, 1,300 of those constituents are incarcerated in the Anamosa State Penitentiary (Kelly 117). At the state level, more than 20% of the populations of the 42nd District of Wyoming and 30th District of Mississippi are incarcerated (118).
These examples reflect that prison-based gerrymandering undermines the Supreme Court’s principle of “one person, one vote” (Reynolds v. Sims 377 U.S. 533 (1963). In Reynolds v. Sims, the Court ruled that “the weight of a citizen’s vote cannot be made to depend on where he lives,” and states should make an “honest and good faith effort” to correctly enumerate their populations (Ho 379). Extensive empirical research on the subject unambiguously reveals that counting incarcerated adults in the districts where they are incarcerated in the Census does just the very thing the Court sought to condemn. It is undeniable that relying on skewed Census data creates “constitutionally unsound districts” and bolsters the political influence of those who live near prisons and silences those who do not (Kajstura and Wagner).
Per federal law and the precedent of Borough of Bethel Park v. Stans, states and localities are not required to utilize the Census Bureau’s data in its redistricting processes (Kajstura and Wagner). Organizations like the NAACP, Prison Policy Initiative, and ACLU believe that they should not. As the incarcerated population in the United States only continues to grow in number, scholars expected this to have an immense impact on political and electoral power (Stachulski 405). Many cite the precedent of Franklin v. Massachusetts, wherein the Supreme Court ruled that overseas federal employees did not need to be physically present to be included in Census enumeration as a potential solution to prison-based gerrymandering (Ho 371). In 1992, the Supreme Court and the Census Bureau agreed that requiring civilians to be physically present to be included in Census enumeration is an outdated, obsolete principle (372). However, the Census Bureau failed to apply this perspective to the 2.3 million incarcerated people across the nation.
Concerned by the potential violations to incarcerated people’s suffrage under the U.S. Constitution’s Equal Protection Clause and Voting Rights Act, several states have taken the initiative to correct prison-based gerrymandering (Ho 394). New York and Maryland have passed legislation banning the practice in state and local governments (Prison Policy Initiative). California, Colorado, Connecticut, Delaware, Illinois, Maryland, Nevada, New Jersey, New York, Virginia, and Washington each developed a state census that collects incarcerated adults’ home addresses to modify the Census’s P.L. 94-171 file (Prison Policy Initiative). Despite their concerted efforts to protect the rights of the incarcerated population, the most recent Census of 2020 adhered to the precedent of historical enumerations (Prison Policy Initiative).
The most obvious solution would be for the Census to utilize each incarcerated civilians’ home or previous residence address in its enumeration to relieve states of this burden. Though the Census Bureau has not revealed any plans to enact such changes, they have released an “Advanced Group Quarters Table” that displays P.L. 94-171 prison count data (Prison Policy Initiative). These tables allow states and counties to access P.L. 94-171 data and manually re-enumerate incarcerated populations as needed (Prison Policy Initiative). Armed with this new knowledge ahead of the 2030 Census, states should develop clear protocols for collecting incarcerated adults’ home addresses to ensure a democratic enumeration process. States should empower rural counties to follow the example of over 200 rural counties that have disregarded prisons in their redistricting and voting processes to more fairly enumerate their population (Prison Policy Initiative).
Works Cited
Diamond, Anna. “The Enumerated Story of the Census.” Smithsonian.com, Smithsonian Institution, 13 Apr. 2020, http://www.smithsonianmag.com/history/enumerated-story-census-180974648/.
Ebenstein, Julie. “The Geography of Mass Incarceration: Prison Gerrymandering and the Dilution of Prisoners’ Political Representation.” Fordham Urban Law Journal, vol. 45, no. 2, 2018, pp. 323–372., ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2726&context=ulj.
“Franklin v. Massachusetts.” Oyez, http://www.oyez.org/cases/1991/91-1502. Accessed 29 July. 2021.
Gramlich, John. “Black Imprisonment Rate in the U.S. Has Fallen by a Third since 2006.” Pew Research Center, Pew Research Center, 6 May 2020, http://www.pewresearch.org/fact-tank/2020/05/06/share-of-black-white-hispanic-americans-in-prison-2018-vs-2006/.
“GOVERNOR BROWN PLEASE SIGN (AB 420) REDISTRICTING AND ANTI-SHACKLING (AB 568) BILLS.” Received by Governor Jerry Brown, 16 Sept. 2011.
Hamsher, David. “Counted out Twice – Power, Representation & (and) the Usual Residence Rule in the Enumeration of Prisoners: A State-Based Approach to Correcting Flawed Census Data.” Journal of Criminal Law and Criminology, vol. 96, no. 1, 2005, pp. 299–328.
Initiative, Prison Policy. “Importing Constituents California.” Importing Constituents California. Prison Gerrymandering Project, www.prisonersofthecensus.org/ca/report.html.
KELLY, JASON P. “The Strategic Use of Prisons in Partisan Gerrymandering.” Legislative Studies Quarterly, vol. 37, no. 1, 2012, pp. 117–134., doi:10.1111/j.1939-9162.2011.00037.x.
“Prison-Based Gerrymandering Reform.” NAACP Legal Defense and Educational Fund, NAACP Legal Defense and Educational Fund, 12 Mar. 2018, http://www.naacpldf.org/case-issue/prison-based-gerrymandering-reform/.
Reynolds v. Sims, 377 U.S. 533 (1964)
“Solutions.” Prison Gerrymandering Project, Prison Policy Initiative, http://www.prisonersofthecensus.org/solutions.html.
Stachulski, Faith. “Prison Gerrymandering: Locking Up Elections and Diluting Representational Equality .” University of Illinois Law Review, 2019.
foundations of law and society 