Updated on October 27, 2021
Prison Gerrymandering: The Practice of Counting Inmates as Residents for Political Representation and the State Action Needed to End It
Katie is a 3L at the University of Kansas School of Law. She earned her undergraduate degrees in Economics and Political Science from Wichita State University. Katie is interested in civil litigation, particularly surrounding employment law. Outside of law school, Katie enjoys traveling and sharing a good bowl of pasta with friends.
More than 2 million people are incarcerated in the United States––the vast majority of whom cannot vote. Yet, in most states, incarcerated people are counted for political representation purposes in the voting districts in which they are incarcerated. This practice is known as “prison gerrymandering.”
Prison gerrymandering is facilitated by the U.S. Census Bureau’s long-standing “usual residence” rule, which is rooted in the 1790 Census Act’s mandate to count people at their “usual place of abode.” Under the “usual residence” rule, the Census Bureau counts people where they live and sleep most of the time. This rule did not have a large impact on political representation and power until the 1980s when states began adopting tough-on-crime laws, causing incarceration rates to skyrocket. Now, as the Unites States has the highest national incarceration rate in the world, many of its congressional and state legislative districts are largely composed of people who are locked behind bars and cannot vote.
These districts gain significant political power from their incarcerated populations. An illustrative example of this is Pennsylvania’s State House District 150, which has a state prison and a county jail. According to a Villanova University study, if the incarcerated people within these two facilities were not counted as District 150 residents, the district would lose more than 5,000 people and likely no longer meet the federal minimum requirements to have a state representative.
This phenomenon has garnished widespread criticism. When the Census Bureau asked the public for feedback on the 2020 Census’s residence criteria, nearly 78,000 public comments called for prisoners to be counted in their home communities, rather than in their incarcerated locations. Despite these comments, the Census Bureau stood by its “usual residence” rule for the 2020 Census and counted all inmates and detainees as residents of where they were being held on April 1, 2020, including people in federal and state prisons, local jails, federal detention centers, and correctional facilities.
As lawmakers begin looking at the newly released census data to redraw voting districts, 12 states have enacted laws or adopted guidance to change how incarcerated people are allocated for redistricting. The general approach among these states is to reallocate counts of incarcerated people to their last pre-incarcerated residence. Doing so will remove disproportionate political representation from prison towns––which are typically rural and predominately white––and restore representation to more urban, diverse areas.
More states need to take similar action in this redistricting cycle. With the Census Bureau’s “usual residence” rule intact for the foreseeable future, it is up to the states to eliminate prison gerrymandering. Without state action, prison towns will continue to receive undue political representation and power from their incarcerated, voteless populations.
 Todd D. Minton, Laura G. Beatty, & Zhen Zeng, Correctional Populations in the United States, 2019 – Statistical Tables, U.S. Dep’t of Just. (July 2021), https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/cpus19st.pdf.
 In the United States, incarcerated felons are only permitted to vote in the District of Columbia, Maine, and Vermont. Restoration of Voting Rights for Felons, National Conference of State Legislatures (June 28, 2021), https://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx.
 Emmanuel Felton, As Redistricting Begins, States Tackle the Issue of ‘Prison Gerrymandering,’ The Washington Post (Sept. 28, 2021), https://www.washingtonpost.com/national/as-redistricting-begins-states-tackle-the-issue-of-prison-gerrymandering/2021/09/28/917f9670-167a-11ec-ae9a-9c36751cf799_story.html.
 Hansi Lo Wang & Kumari Devarajan, ‘Your Body Being Used’: Where Prisoners Who Can’t Vote Fill Voting Districts, NPR (Dec. 31, 2019), https://www.npr.org/sections/codeswitch/2019/12/31/761932806/your-body-being-used-where-prisoners-who-can-t-vote-fill-voting-districts.
 Final 2020 Census Residence Criteria and Residence Situations, 83 Fed. Reg. 5525 (Feb. 8, 2018), https://www.federalregister.gov/documents/2018/02/08/2018-02370/final-2020-census-residence-criteria-and-residence-situations.
 Census Act of March 1, 1790, Sess. II, Ch. 2. § 5. The Act can be found at https://www.census.gov/history/pdf/1790_Census_Act.pdf.
 Final 2020 Census Residence Criteria and Residence Situations, supra note 5.
 Felton, supra note 3.
 Highest to Lowest Prison Population Rate, World Prison Brief, https://www.prisonstudies.org/highest-to-lowest/prison_population_rate?field_region_taxonomy_tid=All.
 Hansi Lo Wang, Most Prisoners Can’t Vote, But They’re Still Counted In Voting Districts, NPR (Sept. 26, 2021), https://www.npr.org/2021/09/22/1039643346/redistricting-prison-gerrymandering-definition-census-congressional-legislative. For a list of over 100 municipalities where at least one third of the Census’ population count is comprised of correctional facilities, see Aleks Kajstura, When the Census Says Most of Your Town is in Prison, Prison Gerrymandering Project (Nov. 10, 2020), https://www.prisonersofthecensus.org/news/2020/11/10/municipal/.
 Sanya Mansoor & Madeline Carlisle, When Your Body Counts but Your Vote Does Not: How Prison Gerrymandering Distorts Political Representation, TIME (July 1, 2021), https://time.com/6077245/prison-gerrymandering-political-representation/.
 Id. (citing Brianna Remster & Rory Kramer, Shifting Power: The Impact of Incarceration on Political Representation, 15 Du Bois Rev. 2, 417–39 (2019)).
 Final 2020 Census Residence Criteria and Residence Situations, supra note 5 at B.1. (“Of the 77,887 comments pertaining to prisoners, 77,863 suggested that prisoners should be counted at their home or pre-incarceration address.”).
 Id. (responding to the public comments, stating: “For the 2020 Census, the Census Bureau will retain the proposed residence situation guidance for correctional facilities . . . .”).
 Id. at C.15.
 Census Bureau Delivers 2020 Census Redistricting Data in Easier-to-Use Format, U.S. Census Bureau (Sept. 16, 2021), https://www.census.gov/newsroom/press-releases/2021/2020-census-redistricting-data-easier-to-use-format.html.
 California, Colorado, Connecticut, Delaware, Illinois, Maryland, Nevada, New Jersey, New York, Pennsylvania, Virginia, and Washington have passed laws changing their redistricting procedures for incarcerated people. The Illinois law will not go into effect until 2030, however.
See Restoration of Voting Rights for Felons, supra note 2.
 Wang, supra note 10.
 Mansoor & Carlisle, supra note 11.