Connecticut is one of close to forty states that utilizes prison gerrymandering in its state legislative districting: the practice of counting prisoners as residents of the district in which they are incarcerated instead of the district of their pre-incarceration (and, presumably, post-incarceration) residence. The NAACP filed the first ever state-wide challenge to the practice in a June 2018 lawsuit in federal court. Recently, a three-judge panel on the Second Circuit upheld the denial of the State’s motion to dismiss, and it was sent back to the district court for further proceedings. According to the online docket report, the parties submitted their discovery report to the court last week, indicating the case will move forward—a hopeful sign for this novel legal claim.

The NAACP’s claim is that prison gerrymandering, and therefore Connecticut’s redistricting plan that is set to apply for the 2020 presidential election and beyond, violates the “One Person, One Vote” principle of the Fourteenth Amendment of the U.S. Constitution.

As defined in Baker v. Carr and Reynolds v. Sims, the basic idea of One Person, One Vote is that the Constitution’s guarantee of equal protections under the law requires that state legislative districts are roughly equal in population. The court in Sims called for lawmakers to make an “honest and good faith” effort to create “substantially equal” representation in pursuit of the ideal that no individual vote holds more (or less) weight than any other vote. Imagine, for example, that District A contains two voters and neighboring District B contains four voters: where each district is represented by one state representative, a voter in District A accounts for 50% of the electorate for that representative while a voter in District B accounts for just 25%. Although the Court did not call for mathematical precision in balancing voter power, this hypothetical is an example of a substantial difference which would likely violate equal protections under Carr and Sims

The Supreme Court recently showed their unwillingness to get involved in political legislative districting in a ruling that barred claims of partisan gerrymandering from reaching federal courts. Prison Gerrymandering is a significantly different matter however, as it is not about who is in a given district, but how many. Incarcerated individuals are not residents of their slotted district in any meaningful sense. This is particularly salient given that prisoners are unlikely to remain in that community upon releaseindeed, Connecticut’s plan does not distinguish between counting prisoners that have a lifetime sentence and those that have a one-month sentence. Prisoners do not visit and enjoy any of the public utilities and improvements that result from legislative advocacy, they do not have access to speaking with their representative, and usually do not get a vote in any legislative matters. In this way, the practice is categorically different than partisan gerrymandering. To count prisoners for the purpose of legislative representation is to count a shadow constituency that serves to artificially inflate democratic power. The NAACP complaint explains that in one Connecticut district, counting prisoners according to their prior residence would show that the district actually has a residential population that is 15% smaller than what is currently recorded. 

Of course, the flip-side of giving some districts inflated legislative power is the corresponding decrease in power for the districts from which the prisoners came. A large number of prisons are located in rural areas of the country, but Oliver Hinds at the Vera Institute of Justice estimates that only 15% of prisoners are from such areas, pulling instead from urban and suburban localities. The intersection of geography and race is an unavoidable additional consideration, especially when one considers the gross overrepresentation of Black and Hispanic/Latinx people subjected to mass incarceration. Using this state-imposed transfer of people across districts to dole out legislative power often results in predominantly rural and White communities having an over-weighted vote at the expense of more urban, less White communities. This relative loss of political power makes it all the more difficult for these districts to use the democratic process to advocate for their needs.

Proponents of counting prisoners in their district of incarceration often say that prisoners use services and resources there, and there is a need to ensure those districts are getting sufficient funding. This claim warrants considerable scrutiny however, particularly as an increasing number of states allow for prisoners to be charged out-of-pocket for things like medical services, internet use, and other basic necessities. In fact, over half of all states allow prisoners to be charged for “room and board.” What’s more, prison gerrymandering could be done away with without any change to funding allocation for prison services, as the process of legislative districting and grants from the state are separate. For example, in Connecticut prisoners are currently counted for certain types of state grant reimbursements but not others. This indicates reimbursements are not tied to legislative district counts, and could therefore be remedied by a change in state policy.

When the US Census Bureau announced that it would count prisoners in their place of incarceration for the 2020 Census as it has since the 1700’s, it didn’t cite prisoners’ use of resources. The Bureau announced it would continue to count prisoners in their place of incarceration because doing so fits the meaning of “usual residence” as established by the Census Act of 1790. This was despite receiving close to 80,000 public comments urging the Census Bureau to change the rule and a letter from several U.S. representatives to that effect. This has been an area of concern for advocates in part because the vast majority of states rely on the census data to draw their state and local legislative districts. 

However, some states have taken it upon themselves to move away from census data for legislative redistricting. In May of this year, Washington Governor Jay Inslee signed a law requiring prisoners to be counted at their pre-incarceration address instead of the location of incarceration as recorded by the census. In doing so, Governor Inslee brought Washington in line with seven other states that have similar laws — Colorado, Mississippi, New Jersey, Virginia, Maryland, Michigan, and New York. A handful of additional states are currently considering these state legislative measures, with varying degrees of success.

The strategy of moving state-by-state to eliminate this practice is not ideal for its slow pace, which may be part of the impetus behind the NAACP’s Connecticut suit. Convincing a federal court to declare the practice to be a violation of the Fourteenth Amendment could have a much more sweeping effect, but is certainly not a sure-bet. Should the lawsuit fail, state-by-state action should be undertaken, despite its pace, as a worthwhile action in defense of true democratic representation.