The pitched battle over the landscape of American democracy for the next decade is underway in state capitals across the country, as lawmakers begin drawing lines for congressional and state legislative districts based on the 2020 Census. And there is a key question facing these drafters: How will they count the 2.3 million people housed in the nation’s jails and prisons.
While inmates aren’t allowed to vote in 48 states, they count for the purposes of representation. Since at least the 1850 Census, the Census Bureau has counted inmates as residents of the communities where they are imprisoned, instead of the communities where they hail from and probably will return to after they serve their sentences. That’s because of the bureau’s centuries-old “usual residence rule,” which defines a person’s residence as the place where they usually eat and sleep.
For most of American history, counting inmates where they were imprisoned did not have a huge impact on political power and representation. But that changed when states began adopting tough-on-crime laws in the 1980s, leading to an era of mass incarcerations. The United States locks up more of its residents than any country in the world, according to data from the Pew Research Center.
As the number of people being incarcerated skyrocketed, states built prisons mostly in rural areas, communities that typically were much Whiter than those the prisoners were coming from.
Continuing to count inmates where they are imprisoned, voting-rights advocates say, unfairly shifts political power from Black and Latino communities, which are overrepresented in the criminal justice system, to rural White communities, where many of the nation’s state and federal prisons are located. It is a practice that has become known as “prison gerrymandering.” Almost 40 states still use the practice, including politically important ones with high incarceration rates like Texas and Florida. But in recent months, there has been growing momentum to end the practice.
Brianna Remster, an associate professor in Villanova University’s Department of Sociology and Criminology, likens prison gerrymandering to the Three-Fifths Compromise, where the framers of the Constitution agreed to count enslaved Black people, who had no political power, as three-fifths of a person for the purposes of determining the number of congressional seats allocated to Southern states.
“This is very reminiscent of the Three-Fifths Compromise, of how Black and Brown bodies are still being used to this day in most places around the United States to advantage White votes and White political influence,” she said.
Remster and her Villanova colleague Rory Kramer studied the effects of prison gerrymandering on political power in the Pennsylvania Capitol, which has been under solid Republican control since the party redrew district lines in 2012. Republicans have held onto a healthy majority in the House even after elections in which Democrats won more votes statewide. The researchers studied what would happen if inmates were counted in their home communities instead of where they were imprisoned.
While felon disenfranchisement laws strip voting power from convicted felons as a punishment, Kramer says prison gerrymandering strips power from entire communities because it deprives them of the full voting power they are entitled to under the doctrine of one person, one vote.
“It’s not just about them or their families. It’s the person down the street, it’s the victim of their crime who lives in the same neighborhood, it’s Grandma down the street who’s just lived in that neighborhood for 70 years. It’s actually harming all of their representative power,” said Kramer, an associate professor in Villanova’s Department of Sociology and Criminology.
“So in turn, it means the schools in that neighborhood won’t have as much power in getting their issues addressed and that pothole will more likely go unfilled,” Kramer said.
Kramer and Remster found that more than a quarter-million Pennsylvanians were living in districts that would be unconstitutionally too large if prisoners were added back into those communities. Over 100,000 of that total were Black residents of Philadelphia. Kramer estimated Philadelphia would have two additional majority-minority districts to represent them in Harrisburg if prison gerrymandering were ended.
State Rep. Joanna McClinton (D), who represents portions of Philadelphia and nearby Delaware County, said that she understood the consequences of prison gerrymandering before she had ever heard the term. McClinton said that for her and other colleagues representing communities with high incarceration rates, it’s like doing double duty. In addition to dealing with her official constituencies, she has spent years fielding complicated requests from inmates she doesn’t technically represent.
“We end up doing a lot of constituent casework and services for those folks, in addition to the folks who are counted in our district already, because they’re from our district, their significant others live in our district, their parents live in our districts, so they call our office needing support when they cannot get any responses from the Department of Corrections,” McClinton said.
Meanwhile, she says, her colleagues representing districts with state prisons have thousands of “phantom constituents.”
“They’ve got 6,000 people that they don’t have to respond to, that they don’t have to answer to,” said McClinton. “An inmate can send them a correspondence. They can call their office, but they’re not able to get any type of response because there’s not even a connectivity to voting power.”
In the past, McClinton introduced bills to end prison gerrymandering in the state, but she failed to gain support from Republican colleagues who control the legislature. This year, however, as a member of the Legislative Reapportionment Commission, which will draw the boundaries for legislative districts, she was able to push through an overhaul. The commission recently voted 3 to 2, with an independent appointee siding with McClinton and the other Democrat on the committee, to end the practice.
With Pennsylvania’s decision, there are 12 states that now count inmates as residents of their home communities for the purposes of political representation, reports the Prison Gerrymandering Project, part of the nonprofit Prison Policy Initiative. Advocates hope Montana will soon join the list but say the Census Bureau must change how it counts inmates, just as it has for college students and military personnel stationed abroad, to ensure that the practice is ended nationwide.
In the past, the Census Bureau has said that counting prisoners at their home addresses would cost as much as $250 million to implement. Advocates dispute that figure, citing a report prepared by the Maryland Department of Legislative Services when lawmakers there voted to end prison gerrymandering. The office estimated that counting inmates at their home addresses would cost about $1.60 per person. That would bring the cost for a nationwide count to about $3.7 million.
A spokesperson for the Census Bureau would not respond directly to the question of whether changing the practice was on this administration’s agenda but said, “it’s too early to comment on what residence criteria will be for the 2030 Census.”
The Texas Civil Rights Project recently released a study of how prison gerrymandering has affected the balance of power in that state. Researchers found that one rural district would lose 21,112 residents if inmates were counted in their home communities. The biggest gainers would be Harris County, home to Houston, and Dallas County. According to the report, two majority-Black and -Latino districts in the Houston area had to be merged in 2011 due to prison gerrymandering.
“This is one of the more egregious problems in the ongoing struggle for voting rights in Texas,” said Joaquin Gonzalez, a lawyer with the Texas Civil Rights Project. “It’s literally bolstering the representational power of these predominantly Anglo areas on the backs of Black and Brown people who can’t even vote.”
While research suggests ending prison gerrymandering would have the biggest effect in local and state races, Republicans tried to flood a congressional district with prisons to try to oust a Black Democratic congresswoman in Florida. In 2015, audio from a closed-door Republican caucus meeting surfaced where a GOP state lawmaker told a crowd of party activists that she and her colleagues were seeking to pack a congressional district with Black inmates in an effort to oust longtime Rep. Corrine Brown (D).
The courts had ordered lawmakers to create a majority-Black district in north Florida, and they were looking for a way to do that while still crafting a district that would favor a Republican candidate. To accomplish that goal, they included 18 jails and prisons in Brown’s district, flooding it with Black residents who could not vote. That way, the district would be majority-Black on paper, but in reality, a large number of those residents would have no electoral power. After court challenges, the Florida Supreme Court ordered the district to be redrawn.
“This is the same legislature that tried to repeal Amendment 4 and place restrictions on returning citizens ability to vote,” said Moné Holder, senior director of advocacy and programs at Florida Rising, an independent political organization that looks to increase the political power of the state’s communities of minority residents. Amendment 4 sought to restore voting rights for people with felony convictions. “Prison gerrymandering is just another tool in the toolbox for folks who are in power to shape districts that don’t actually reflect the community that they’re going to serve.”

