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NAACP Legal Defense and Educational Fund, Inc.
John Payton
President and Director-Counsel
National Headquarters
99 Hudson Street, Suite 1600
New York, NY 10013
212.965.2200
800.221.7822
Fax 212.226.7592
Ryan P. Haygood
Co-Director,
Political Participation Group
Jenigh Garrett
Assistant Counsel
Dale Ho
Assistant Counsel

Washington, DC Office
1444 Eye Street NW, 10th Floor
Washington, DC 20005
202.682.1300
Fax 202.682.1312
Kristen Clarke
Co-Director,
Political Participation Group

For more information, visit us at
www.naacpldf.org
or email us at vote@naacpldf.org
LDF’s POLITICAL
PARTICIPATION GROUP
The Political Participation Group’s
mission is to use legal, legislative,
public education, and advocacy
strategies to promote the full, equal,
and active participation of African
Americans in America’s democracy.
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CAPTIVE “CONSTITUENTS”

Prison-Based Gerrymandering
and the Distortion of Our Democracy
Most state and local governments count
incarcerated persons as residents of the prison
communities where they are incarcerated when
drawing election district lines, despite the fact
that prisoners are not integrated into those
communities and are not residents there.
This practice, known as “prison-based
gerrymandering,” artificially inflates the
population count—and thus, the political
influence—of the districts where prisons and
jails are located. At the same time, this practice
reduces the political power of everyone else.
The viability of our communities, integrity of
our democracy and basic principles of equality
suffer as a result.

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The “One Person,
One Vote” Principle
The United States Constitution
requires that election districts must be
roughly equal in size, so that everyone
is represented equally in the political
process. Elected officials (with the
exception of United States Senators)
must represent roughly the same
number of people, and each constituent
is entitled to the same level of access to
an elected official. This is known as the
“one person, one vote” principle.
But because of prison-based
gerrymandering, a person’s vote counts
more if that person lives near a prison,
in violation of the basic principle that
each person’s vote should count equally.
Prison-based gerrymandering uses a captive and disfranchised population that is
comprised disproportionately of people of color to inflate the political strength of
the surrounding jurisdiction. It is all-too reminiscent of the infamous “three-fifths
compromise,” whereby enslaved and disfranchised African Americans were counted to
inflate the number of constituents—and thus, the political influence—of Southern states
before the Civil War.

Prisoners Are Not Constituents
of the Districts Where They Are Incarcerated
Prisoners should not be counted where they are incarcerated for several reasons:
Prisoners Are Not Legal Residents Where They Are Held. Nearly every state
has a constitutional provision or statute providing that a person does not gain or
lose residence in a place by virtue of being incarcerated there. Rather, a prisoner
retains the legal residence that he or she had prior to arrest, and continues to
maintain residence in that county for a variety of purposes, such as court and tax
filings. And where prisoners are permitted to vote, as in Maine and Vermont, they
do so by absentee ballot in their home communities.
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Prisoners Are Not Integrated Into the Communities Where They Are Held.
Unlike groups such as students or military personnel, prisoners cannot establish
ties to the surrounding community where they are imprisoned. They cannot utilize
services such as parks and libraries. Prisoners are not located where they are by
choice; rather, they are held at a particular facility at the discretion of the state,
and can be moved at any time for any reason. Prisoners cannot vote in the districts
where they are held, and the residents of surrounding communities generally do not
share prisoners’ concerns or interests.
Prisoners Remain Members of Their Home Communities. Prisoners remain
legal residents of the communities where they lived prior to arrest. To the extent
that prisoners have connections to the outside world, it is through their families
and other relationships in these communities, to which they are released upon
completion of sentence. But while the average length of incarceration for a state
prisoner in the U.S. is less than 3 years, the population counts that treat prisoners as
residents of a prison district remain in effect for a decade.
In spite of all this, prisoners in most states are counted as members of the districts where
they are incarcerated, artificially inflating the political power of those districts at the
expense of their own communities.

Prison-based gerrymandering uses people’s bodies
to count against their interests.

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Prison-Based Gerrymandering Undermines Democracy
Statewide Effects
In New York, 66% of the state’s prisoners come from New York City, but 91% of them
are incarcerated upstate, a more rural and less populated region. In the 2000 Census,
over 43,000 New York City residents
The Census Bureau counted 43,740
were counted as members of upstate
New York City residents
communities because of prison-based
in upstate prison cells.
gerrymandering.
Without these prison populations, seven
of New York’s State Senate districts
from the 2000 redistricting cycle would
not meet the minimum population
requirements under federal law and
would have to be redrawn, which would
in turn change district lines across the
state.
Image courtesy of the Prison Policy Initiative

Local Effects
Prison-based gerrymandering also
has negative effects on the rural
counties that host prisons.
For example, in 2002 the town
of Anamosa, Iowa was divided
into 4 city council wards of
approximately 1,370 people each.
Ward 2, however, contained a
state penitentiary, which was
home to approximately 1,320
prisoners. The incredible result
was that Ward 2 had only 50
true constituents, who held
the same political power as the
approximately 1,370 constituents
in each of the other wards.

City Council Wards in Anamosa, Iowa
Ward 2 has all the periu of a City Council seat while representing only 58 constituents

Ward I:

Cen$U$ population: I,J71

Ward 4:

Census population: 1,311

Ward 3:

c.mlolfpot)U~t1Of't:l.J"

Image courtesy of the Prison Policy Initiative

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Minority Vote Dilution
African Americans are 12.7% of the general
population, but are 41.3% of the federal and state
prison population. Nationally, African Americans
and Latinos constituted 85% of the growth in the
incarcerated population from 1970 to 2000.
But incarcerated persons are often held in areas that
are far removed from their home communities in both
distance and composition. Although non-metropolitan
counties contain only 20% of the national population,
they are host to approximately 60% of new prison
construction.
In 173 counties nationwide, half of the purported
African-American population are not true residents,
but are actually prisoners imported from elsewhere.
Thus, prison-based gerrymandering not only weakens
the political strength of communities of color, it is
also eerily reminiscent of the infamous “three-fifths
compromise,” which enabled Southern states to
amplify their political power by counting enslaved
African Americans amongst their constituents.
Prison-based gerrymandering undermines minority
voting rights in other ways as well. In 1986, Somerset
County in Maryland created a majority AfricanAmerican voting district in compliance with the Voting
Rights Act, but more than half of the new district
was comprised of prisoners, and over 60% of the
district’s purported African-American population was
incarcerated. As a result, African Americans in that
district have never had a meaningful opportunity to
elect a candidate of their choice.

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Prison-Based Gerrymandering Has
Massive Electoral Consequences
Over the last several decades, the number
of incarcerated Americans has exploded.
The state prison population nationwide,
which was 220,000 in 1974, more than
quintupled in size by 2000 to over 1.3
million, due in large part to the “War on
Drugs.”
Today, the incarcerated population of the
U.S. is over 2 million. It is roughly equal
to Houston, our fourth-largest city. It is
larger than that of fifteen individual states,
and larger than the three smallest states
combined. If the incarcerated population
could form its own state, it would qualify
for five votes in the Electoral College.

Where prison populations are counted has
tremendous influence in shaping our democracy.

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Fixing the Problem
Reform at the State and Local Level
In February 2010, the U.S. Census Bureau agreed, for the first time, to make
information on prisoner population numbers available to states and localities in time for
those figures to be taken into account in the redistricting process. States and localities
will now have the ability to draw election districts without engaging in prison-based
gerrymandering.
In April, 2010, Maryland became the first state to pass legislation requiring that
prisoners be counted at their pre-arrest addresses when drawing election district lines.
This will ensure that prisoners are counted at the proper locations, and that everyone’s
vote in Maryland will count equally, whether or not they live near a prison. Many other
states are currently considering similar legislation.
At the local level, dozens of counties nationwide have refused to engage in prison-based
gerrymandering by not counting prisoners when drawing district lines. Since nearly all
prisoners come from communities outside of the county, this local practice has the same
practical effect as counting prisoners at their true home addresses.

Contact your state and local representatives to let them know that you support
an end to prison-based gerrymandering!
Reform at the National Level
Advocates are engaged in a long-term campaign to encourage the Census Bureau to
implement a permanent solution, in which the decennial census would identify the
home communities of incarcerated persons and count them appropriately. An accurate
population count during the next Census can solve the problem of prison-based
gerrymandering once and for all.

Contact your federal representative to let them know that you agree that the
Census Bureau should count incarcerated persons at their home addresses!

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Frequently Asked Questions
Q: How are prisoners different from other groups like students? If we count students in their
dorms, shouldn’t we count prisoners where they are housed?
A: Unlike students, prisoners are not a part of the local community. They are even
prohibited from becoming legal residents there. They are barred from leaving their
facility without official permission. And, of course, prisoners cannot vote in the districts
where they are incarcerated. Students, on the other hand, can utilize local services like
parks, libraries, highways and roads, and can build ties in the local community. The
college is the place they willingly live, which is the very definition of residence.
Q: If most prisoners can’t vote, why count them at all?
A: Everybody counts, whether they can vote or not. The Census counts non-voting
populations such as children, who are included as part of a district’s population during
redistricting. The issue is not whether prisoners should be counted, but where. Tellingly,
in the two states that permit prisoners to vote (Maine and Vermont), prisoners vote by
absentee ballot in their home communities.
Q: Are states and localities required to use the federal census when conducting redistricting?
A: State and local governments are not required by federal law or the U.S. Constitution
to use any particular set of data when redistricting. Although redistricting must be based
on reliable population numbers, states and localities are free to adjust census data to
correct how the federal census counts prisoners.
Q: Do states have the means to count prisoners in their home communities during the
redistricting process?
A: States already possess the address information of prisoners, or have access to that
information. According to the New York City Bar Association, after address information
from prisoners is compiled, computer mapping software would make it relatively easy to
reallocate those individuals back to their home communities for redistricting purposes.

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Additional Information
For additional information on
prison-based gerrymandering, please visit:
NAACP LEGAL DEFENSE
AND EDUCATIONAL FUND, INC.
www.naacpldf.org

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