Prison Gerrymandering and Political Representation

Bea Mandac

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Government & Public Administration

States Move to Address Prison Gerrymandering as Census Practices Face Scrutiny

Floyd Wilson has been counted in the census as a resident of multiple rural districts in Pennsylvania since 1980. He has never lived in any of them.

Wilson, incarcerated for decades and originally from Philadelphia, discovered that his official residence in the eyes of the U.S. Census Bureau shifted every time he was moved between prisons.

“I realized my body was being used for decades in places I never called home,” Wilson told TIME in 2021.

His experience illustrates a practice known as prison gerrymandering, where incarcerated people are counted as residents of the prison location rather than their home communities.

The method, rooted in a centuries-old census rule, inflates the political power of districts with prisons and reduces representation for the communities most affected by incarceration.

A rule with deep roots

The Census Bureau has followed the same principle since the first national count in 1790: people are to be tallied where they “usually reside.” In the case of prisoners, that has meant the location of the correctional facility on Census Day.

For most of U.S. history, this approach had little effect. The prison population was small and relatively stable.

By the late 20th century, however, the impact changed dramatically. The United States experienced a surge in incarceration beginning in the 1980s, fueled by the war on drugs and policies that imposed long sentences.

By 2010, more than two million people were in prisons and jails, according to the Bureau of Justice Statistics.

Because those facilities are disproportionately located in rural, majority-white areas, the census method began shifting political representation from urban communities of color to districts with prisons.

“Mass incarceration changed what was once a technical rule into a source of real distortion,” said Katie Deutsch, writing in the Kansas Law Review.

Shifting political power

The distortions can be significant. A study by sociologists Brianna Remster and Rory Kramer, published in the Du Bois Review in 2019, found that Philadelphia lost enough representation to forgo one or two additional majority-minority districts in the state legislature because tens of thousands of its residents were counted in prison towns elsewhere in Pennsylvania.

In one district outside the city, nearly 6,000 prisoners were included in the population count.

State Rep. Joanna McClinton of Philadelphia told The Washington Post that those individuals “don’t have to be represented” by the district’s lawmakers, who nevertheless benefit from the inflated numbers.

Similar examples appear nationwide. In Texas, a legislative district covering several prisons would lose more than 21,000 residents if prisoners were excluded, according to the Texas Civil Rights Project.

In Illinois, about 90% of the state’s prison population was once counted in rural districts despite nearly half originating from the Chicago area.

The nonprofit Prison Policy Initiative has documented instances where incarcerated people made up more than one-third of a town’s population on paper, even though they could not vote or participate in the community.

“They are treated as residents of places where they have no real ties,” said Aleks Kajstura, legal director of the group.

Comparisons to past practices

Scholars and advocates have drawn parallels between prison gerrymandering and the Three-Fifths Compromise of 1787, when enslaved people were counted for apportionment but denied the right to vote.

“It is another system where bodies are counted for representation without giving those people political voice,” said Julie Ebenstein, a voting rights attorney writing in the Fordham Urban Law Journal.

Sociologist Brianna Remster told The Washington Post that the practice mirrors earlier systems of disenfranchisement.

Legal challenges and divided rulings

Courts have been asked repeatedly to decide whether prison gerrymandering violates the constitutional principle of equal representation.

In 2012, the Supreme Court upheld Maryland’s decision to end the practice through its “No Representation Without Population Act.” The law required that incarcerated people be counted at their last known address for state and local redistricting.

The case, Fletcher v. Lamone, was the first time the Court addressed the issue directly, and the ruling validated state-level reforms.

Other challenges have been less successful. In 2016, the First Circuit Court of Appeals upheld the city of Cranston, Rhode Island’s decision to include prison populations in its local districts, overturning a lower court ruling that found the practice unconstitutional.

Three years later, the Second Circuit allowed a statewide challenge to Connecticut’s legislative maps to move forward in NAACP v. Merrill. The court did not decide the merits but recognized that plaintiffs could plausibly argue that prison gerrymandering diluted their representation.

Momentum for reform

Despite the Census Bureau’s decision to maintain its traditional counting method, a growing number of states have acted independently.

Maryland and New York were the first to pass laws reallocating prisoners to their home addresses for redistricting before the 2010 cycle. By 2021, more than a dozen states had adopted similar reforms, including California, Delaware, New Jersey, Virginia, Washington, Connecticut, Illinois, and Nevada.

“These reforms restore political power to communities that have historically lost it through incarceration,” Kajstura said.

The Census Bureau, facing nearly 78,000 public comments urging a change before the 2020 count, acknowledged the criticism but said it would not alter its approach.

Instead, the Bureau released detailed data on prison populations earlier than usual, allowing states that wished to make adjustments on their own to do so.

Case study: Pennsylvania

Pennsylvania illustrates the stakes. According to Remster and Kramer’s study, four state House districts would not meet minimum population requirements if prisoners were excluded.

Philadelphia, home to the largest share of the state’s incarcerated population, would gain one or two additional districts where voters of color formed a majority.

Advocates argue that the current system transfers political power from those communities to rural areas where prisons are located. “It shifts representation away from the neighborhoods most affected by incarceration,” Remster said.

Opponents of reform argue that consistency in census methodology is critical. They note that college students, military personnel, and others are also counted where they live on Census Day rather than at a permanent address.

But advocates counter that incarcerated people differ because they cannot choose where they live, cannot vote in most states, and typically maintain stronger ties to their home communities.

Race and representation

Because incarceration disproportionately affects Black and Latino populations, the representational impact falls heavily along racial lines.

In New York, about 70% of state prisoners from New York City were housed upstate as of 2010, according to the Brennan Center for Justice. The arrangement shifted political influence away from the city’s minority neighborhoods and toward predominantly white rural districts.

“This is not just about geography but about race and power,” said Myrna Pérez, then director of voting rights at the Brennan Center.

Funding questions

Some lawmakers have argued that prison populations bring financial benefits to rural districts by attracting federal funding tied to population counts.

But research indicates that most funding formulas either exclude prison populations or allocate funds based on service use, which prisoners rarely access outside correctional facilities.

National debate and congressional proposals

At the federal level, the debate has reached Congress but not resulted in change.

The For the People Act, a voting rights and democracy reform bill introduced in 2021, included a provision to require counting incarcerated people at their last known residence for redistricting. The measure passed the House but stalled in the Senate.

Without congressional action or a shift in Census Bureau policy, the practice will continue for the 2030 redistricting cycle unless states intervene.

Resistance to change

Not all states have been willing to act. In Rhode Island, lawmakers considered but did not pass a bill to end prison gerrymandering after the Cranston case.

In other states, proposals have stalled over concerns about data accuracy or political consequences.

Some officials argue that adjusting census data is administratively difficult. Others note that removing prisoners from local counts could disadvantage rural districts that already face population decline.

“The reality is these districts depend on the numbers,” said a state legislator from upstate New York during debates over reform in 2008.

The path forward

The Prison Policy Initiative estimates that more than half the U.S. population now lives in states that have addressed prison gerrymandering in some form. But in the rest of the country, the practice continues to shape political maps.

Advocates are pressing for broader reform before the 2030 Census. They argue that the current system undermines the principle of one person, one vote by giving residents of prison districts more representation than residents of communities that supply the incarcerated population.

For Wilson, who will be released later this decade, the issue is not abstract. “My vote didn’t count all those years,” he told TIME. “But my body did.”

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