Prison Gerrymandering and Felon Disenfranchisement are the latest evolution of policies and laws designed to prohibit equal representation and limit universal suffrage. Often overlooked, these policies have created a crisis where representation is taken away from communities disproportionately affected by mass incarceration where millions of individuals continue to be categorically denied the right to vote. Prison Gerrymandering stems from United States Census Bureau policy that “counts incarcerated people as residents of the towns where they are confined, though they are barred from voting in 48 states and return to their homes after being released.”[i] The key effect of this policy is the artificial inflation of “constituents” in districts where prisons are located, which means “ballots cast by citizens who live in districts that have been drawn to include prisoners are weighted heavier than are those of voters who live in districts that contain no such facilities.”[ii]
Let’s examine two examples that demonstrate the severity and effects of the policy. In Anamosa, Iowa, because Anamosa State Penitentiary’s population of 1,321 was counted as part of the town ward in which it was located, the penitentiary skewed town districting so its ward had only 58 constituents eligible to vote. One city councilman, Danny Young, “was elected with two write-in votes”[iii] and his constituents had “about 25 times as much clout as those in the other wards.”[iv] It’s worth noting as well “the prison population is nearly a third African American or Latino, but Anamosa is a small, rural city where less than 2 percent of the residents are black or Latino.”[v] In Wisconsin, “The 53rd Assembly District… has the highest concentration of prisons in the state and 5,583 of its ‘constituents’ are to be found behind bars.”[vi] What this ultimately means is that every ninety residents residing in that Assembly District have “the same amount of political clout as 100 residents of any other district,”[vii] and “only 590 of its 2,784 African American ‘constituents’ actually reside outside prison walls.”[viii] Voters in districts with prisons essentially have “extra political clout… solely on the basis of their residential proximity to a prison.”[ix] Because of the prison population demographics in the United States and location of prisons in more rural and white areas, the practice reduces “the political representation of others, especially urban residents and communities of color.”[x] Those who draw legislative boundaries can take prisons into consideration in order to give one side or another significant political advantage. “Shifting a significant proportion of these phantom constituents into districts that lean heavily toward the majority party, legislators can free up an equal number of citizens from those districts to be distributed… thereby increasing that party’s likelihood of picking up additional seats in the state legislature.”[xi] This redistribution of representation “has the effect of siphoning off political clout from the communities where most incarcerated people come from, and transferring it to districts where they are confined but cannot vote.”[xii]
Combine Prison Gerrymandering with Felon Disenfranchisement and we have a real representational crisis on our hands. Felon Disenfranchisement, long been used as a tool for political disenfranchisement especially during the Jim Crow era,[xiii] is the denial of voting rights to those who have been convicted of felony level crimes.[xiv] The Supreme Court recognizes this practice as constitutional as it held in Richardson v. Ramirez (1974) that “the deprivation of the right to vote for ex-offenders does not violate the Fourteenth Amendment’s Equal Protection Clause”[xv] because language in section two of the Amendment exempts states from the penalty of reduced representation in Congress when the right to vote is denied for the basis of “participation in rebellion, or other crime.”[xvi]
Today, “an estimated 6.1 million people are disenfranchised due to a felony conviction, a figure that has escalated dramatically in recent decades as the population under criminal justice supervision has increased.”[xvii] Today, except for in Vermont and Maine, felons are completely banned from voting while incarcerated,[xviii] and “in many states they lose their right for long after they have served out their sentences and have been released into society.”[xix] Thirty-five states deny the formerly incarcerated the right to vote while on parole, eleven states currently allow former offenders to reapply for suffrage, while others permanently lose the right to vote.[xx] Internationally, this practice is an outlier. According to Jamie Fellner and Marc Mauer, “No other democratic country in the world denies as many people – in absolute or proportional terms – the right to vote because of felony convictions.”[xxi] That the United States strays so far from other developed countries in this regard is a reflection on what we feel is the goal of the American criminal justice system, punishment. Other developed nations have policies that would seem to reflect a belief in the ideals of rehabilitation and reintegration by allowing the incarcerated and formerly incarcerated to retain their right to participate in democracy. The United States, however, uses Felon Disenfranchisement as one of many punitive measures that ensures a prison sentence remains a permanent mark on one’s life.
It is essential to note these practices disproportionately affect African American and minority communities and can have significant political consequences on their representation. One cannot lose sight of the importance “of large numbers of African Americans losing the vote – the very right that took centuries of anguish, perseverance, and conflict to acquire – as a result of criminal records.”[xxii] The rate at which African American men are disenfranchised is seven times higher than the national average.[xxiii] “In Florida, Kentucky, and Virginia, over 20 percent of black adults are disenfranchised,”[xxiv] and in states where such laws are more restrictive, “up to 25 percent will never vote again.”[xxv] Despite comprising 12 percent of the general population, African Americans “constitute 44 percent of the population with felony records. As a result, while 2.3 percent of the overall population is disenfranchised, over 7 percent of the African American community cannot vote.”[xxvi] The effect of Felon Disenfranchisement on the political power of the African American community is devastating, but not new. One only need to refer to the powerful example of Jarvious Cotton’s family from Michelle Alexander’s The New Jim Crow to see this fact. Mr. Cotton is the fifth generation of men in his family who has not been able to exercise his right to vote because of the various targeted forms of voter suppression throughout American history.[xxvii] The means to achieving the same end of disempowering the African American and minority voters has evolved along with the framework used to repress those communities. Today, Prison Gerrymandering and Felon Disenfranchisement are that very mechanism.
There are, however, signs for hope on addressing both of these issues as people are starting to become aware. Federal and state governments are acting to address Prison Gerrymandering. While the Census Bureau will still improperly count prisoners based on where they are incarcerated in 2020, they have “agreed to publish detailed data on incarcerated populations much earlier than in the past” giving “state and local governments the information they need to avoid prison-based gerrymandering in time to use it in their redistricting processes.”[xxviii] At the state level, “Maryland and New York have both passed legislation to count incarcerated people at their homes for the current redistricting cycle, while California and Delaware have passed laws to fix the problem during the 2020 cycle.”[xxix] Residents from Anamosa, Iowa, eliminated the district system from their town government that allowed only two residents to elect Danny Young. Nationally, “Senator Ben Cardin and Representative John Conyers have introduced the ‘Democracy Restoration Act,’ which seeks to restore federal voting rights to 4.4 million former prisoners and maintain those rights for people on probation.”[xxx] These actions are certainly steps in the right direction. However, the realities of the criminal justice system through Prison Gerrymandering and Felon Disenfranchisement will continue to keep us from achieving the ideals of equal representation and universal suffrage until extensive reforms are enacted that eliminate both practices.
[i] “The Problem.” Prison Gerrymandering Project. Accessed November 26, 2018. https://www.prisonersofthecensus.org/impact.html.
[ii] Jason P. Kelly, “The Strategic Use of Prisons in Partisan Gerrymandering,” Legislative Studies Quarterly 37, no. 1 (2012): 117.
[iii] “The Problem.” Prison Gerrymandering Project. Accessed November 26, 2018. https://www.prisonersofthecensus.org/impact.html.
[iv] Id.
[v] Leah Sakala, “Census Bureau Contributes to Prison-based Gerrymandering,” Race, Poverty & the Environment 18, no. 2, Autumn Awakening: From Civil Rights to Economic Justice (2011), 40.
[vi] Id, 41.
[vii] Id.
[viii] Id.
[ix] Id, 39.
[x] Id.
[xi] Jason P. Kelly, “The Strategic Use of Prisons in Partisan Gerrymandering,” Legislative Studies Quarterly 37, no. 1 (2012): 118.
[xii] Leah Sakala, “Census Bureau Contributes to Prison-based Gerrymandering,” Race, Poverty & the Environment 18, no. 2, Autumn Awakening: From Civil Rights to Economic Justice (2011), 40.
[xiii] Michelle Alexander, The New Jim Crow (New York, New York: The New Press, 2012), 192.
[xiv] Christopher Uggen, Ryan Larson, and Sarah Shannon. “6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016.” The Sentencing Project. October 6, 2016.
[xv] Marc Morjé Howard, Unusually Cruel: Prisons, Punishment, and the Real American Exceptionalism (New York: Oxford University Press, 2017), 133.
[xvi] Richardson v. Ramirez, 418 U.S. 24, 43 (1974).
[xvii] Christopher Uggen, Ryan Larson, and Sarah Shannon. “6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016.” The Sentencing Project. October 6, 2016. https://www.sentencingproject.org/publications/6-million-lost-voters-state-level-estimates-felony-disenfranchisement-2016/#I. Overview.
[xviii] Jonah A. Siegel, “Felon Disenfranchisement and the Fight for Universal Suffrage,” Social Work 56, no. 1 (2011): 89.
[xix] Marc Morjé Howard, Unusually Cruel: Prisons, Punishment, and the Real American Exceptionalism (New York: Oxford University Press, 2017), 82.
[xx] Jonah A. Siegel, “Felon Disenfranchisement and the Fight for Universal Suffrage,” Social Work 56, no. 1 (2011): 89.
[xxi] Id.
[xxii] Id, 134.
[xxiii] Jonah A. Siegel, “Felon Disenfranchisement and the Fight for Universal Suffrage,” Social Work 56, no. 1 (2011): 89
[xxiv] Marc Morjé Howard, Unusually Cruel: Prisons, Punishment, and the Real American Exceptionalism (New York: Oxford University Press, 2017), 134.
[xxv] Michelle Alexander, The New Jim Crow (New York, New York: The New Press, 2012), 1.
[xxvi] Marc Morjé Howard, Unusually Cruel: Prisons, Punishment, and the Real American Exceptionalism (New York: Oxford University Press, 2017), 134.
[xxvii] Michelle Alexander, The New Jim Crow (New York, New York: The New Press, 2012), 1.
[xxviii] Leah Sakala, “Census Bureau Contributes to Prison-based Gerrymandering,” Race, Poverty & the Environment 18, no. 2, Autumn Awakening: From Civil Rights to Economic Justice (2011), 41.
[xxix] Id.
[xxx] Id.
