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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.
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