Prison-Based Gerrymandering Undercuts “One Person, One Vote”

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Like the rest of America, I am enrolled presently in a distance-learning course called The Legislative Process. Only in addition to watching C-Span and listening to NPR, I also have to turn in papers occasionally to professors at Northwestern University. While writing one last week I encountered a surprising aspect of how we get represented by legislators. It’s called “prison-based gerrymandering,” and I was afraid that everyone already knew about it but me, showing up late to the party. I’ve since found out that’s not the case.

You see, every ten years, data from the US Census is used to reapportion the voting districts to ensure that each has roughly equal population. Often the lines get redrawn. In the redistricting process, other principles besides population are also considered: contiguity, compactness and observable boundaries of the geographic area, racial parity and the pre-existence of local political communities. Balancing all of these can be pretty tricky, but that’s just what the state legislatures have to do in 37 States in years ending in ‘01. (The rest hire consultants or rely on non-partisan advisory panels). This is how we maintain the principle of “one person, one vote” enshrined in the Equal Protection clause of the 14th Amendment.

However – and this is a big however – for purposes of the US Census Bureau, a prisoner’s address is the cellblock. Do you see yet what’s wrong with this picture? Districts that have prisons in them have more voting power than the rest of us, because the people who live near the prisons have more representation. Incarcerated populations represent a captive, non-voting constituency that is nonetheless counted towards the number of people needed to gain a seat in the state legislature and US House of Representatives.

The significance of this is, it’s a way for Republican incumbents to hold onto power in the rural, white districts. As the League of Women Voters of Arlington, Virginia, put it, “Counting the incarcerated as if they have a connection with or shared interests with community concerns effectively gives legislative weight to a population that is not eligible to vote and undermines the Constitutional right to fair and equal representation,”.

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Not only does this practice boost the political influence of those who live near prisons, but it takes legislative power away from the mostly urban places where the prisoners came from. These are places where minority voters tend to be in the majority, and while already politically vulnerable they lose even more influence and legislators when community members are removed from the count because they’ve been shipped off elsewhere to live behind bars.

Now, “plain, old” gerrymandering, or the creative drawing of voting districts to achieve a particular, desired outcome is nothing new. Far from being contiguous or compact, Virginia’s 3rd district has been accused of resembling a “grasping claw” or, of all things, a “squashed salamander.” The Commonwealth has seen so many court cases come out of its redistricting decisions related to race that it must submit plans to the US Justice Department for pre-clearance under the 1965 Voting Rights Act.

But counting prisoners among the represented voters when they’re really not takes this to a whole, new creepy level, and it has grown under our noses.

The 1990 Census was the first to see a large increase nationally in the incarceration rate (Wagner). In 2000, a total of more than 7 million Virginians were counted in the census, with 35,000 or so housed in state and federal prisons. Across the rural Southside, prisons had replaced agriculture as the major employer (Greene). In four counties — Brunswick, Buckingham, Greensville, and Sussex — more than 12 percent of residents were incarcerated (Wagner).

The 2010 population of Virginia was just over 8 million, reflecting an increase of 13 percent since the previous census and making Virginia the 16th fastest-growing state in the nation (Sturtevant). Meanwhile, the schedule for publishing data coming out of the Census Bureau changed in 2010, making it easier to identify prison populations in redistricting data (Peck). Virginia law changed to allow localities to exclude these non-voters from the constituent count, but the correction did not extend to the state level (Kimball).

There is a push to alter the way the US Census Bureau counts prisoners in time for the 2020 census. Thirteen Senators wrote a letter in 2014 expressing their support for the change, which would do away with prison-based gerrymandering. Republican gains during the 2016 elections, however, could stymie grassroots efforts.

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