Twelve states revise counting of prisoners to address concerns about voting fairness, but not FL

While many inmates are not eligible to vote, how they are identified in Census data affects how local, state and federal voting districts are drawn

By: - September 27, 2021 7:00 am

Inmates get fresh air at Butner Federal Correctional Institution in Butner, N.C. Eleven states, not including North Carolina and Florida, have abolished prison gerrymandering, in which inmates are counted for purposes of drawing voting districts as residents of the prisons, jails and detention centers where they were imprisoned when counted. Credit: Sarah D. Davis/Getty Images

Eleven states drawing new voting districts this year following the 2020 Census are breaking with tradition to address claims about political unfairness in the way prisoners are counted, but Florida isn’t one of them. A 12th state, Illinois, will join the group in 2030.

Nine of those states – some of them responding to civil-rights litigation — will for the first time sort their 2020 Census data to list hundreds of thousands of inmates of their prisons, jails and detention centers as residents of their home communities, not as residents of the cells that were holding them during the Census taking, as reported by the National  Conference of State Legislatures. Two others, New York and Maryland, made this change in 2010.

Regardless which ones can vote, how inmates are identified in Census data affects how local, state and federal voting districts are drawn, impacting elections across the nation for a decade at a time.

The growing number of states changing how they allocate Census data on prisoners could shake things up in ways that voting-rights advocates say are just and overdue.

This map of Florida-run prisons represents 80,000 inmates, more than half the imprisoned population. Source: Florida Department of Corrections

Florida, incarcerating 149,000 adults, had the third-largest number of people in state and federal prisons, jails and detention centers during Census taking in the nation, following Texas and California, according to 2020 Census data. That includes 80,000 in state-run prisons, according to the Florida Department of Corrections.

State lawmakers in Florida and Texas are not moving to change how they count inmates for purposes of legislative and Congressional seats, but both include a handful of city, county and school-board districts that disregard local prison populations when drawing voting districts in their jurisdictions.

So-called prison gerrymandering is the practice of counting people held in prisons, jails and detention centers as residents of those facilities. It tends to concentrate voting power in the hands of fewer people in districts where prisons are located, according to analyses by organizations including the NAACP, the American Civil Liberties Union, Prison Policy Initiative, Villanova University in Pennsylvania, and redistricting authorities in the states ditching the practice.

“Every day, more and more people recognize the damage that prison gerrymandering does to our democracy. That’s why 12 states and over 200 local governments – representing more than 40 percent of the country – have taken action to end this practice,” said Mike Wessler, communications director at Prison Policy Initiative, a non-profit, non-partisan research and advocacy organization that focuses on mass incarceration.

This year, for the first time, the states of California, Colorado, Connecticut, Delaware, Nevada, New Jersey, Pennsylvania, Virginia and Washington will discard the practice derided as prison-based gerrymandering, according to the conference of legislatures and news reports by affiliates of the nonprofit States Newsroom. Those nine states join New York and Maryland, and Illinois will implement the new policy in 2030, making it the 12th state to change direction. Montana is fast moving that way, too, targeting 2030.

So far, Florida hasn’t joined the dozen states

There is little indication that Florida’s Republican-dominated Legislature wants to reallocate data on inmates this year when it draws new voting maps for the state House, state Senate and Florida congressional districts. But it could, and at least one senior senator is thinking about it.

Florida state Sen. Darryl Rouson, surrounded by other members of the Legislative Black Caucus, speaks in a 2021 Senate session. Screenshot: The Florida Channel

Sen. Darryl Rouson, who represents parts of Hillsborough and Pinellas counties, is one of four Democrats on the Republican-dominated Florida Senate Committee on Reapportionment. He brought up the matter at the panel’s first meeting, last Tuesday.

He did little more than ask staff to verify whether Florida still treats inmates as residents of the prisons and jails holding them when they are counted, and not as residents of hometowns from whence they came and to which they likely would return when released. (Inmates serving life sentences are counted as prison residents).

Inserting the subject into the official record of proceedings on Day One suggests he may have more to say on it in weeks to come. Rouson’s staff said he was not available to be interviewed last week.

Meanwhile, this issue did not come up for discussion in the three other redistricting hearings last week, all in the House of Representatives.

Lawmakers are not obligated to allocate the prison data one way or another, unless ordered by a court or mandated by Congress.

At Prison Policy Initiative, Wessler told the Phoenix in interviews and emails that lawmakers, courts and the Census Bureau recognize that the 231-year-old policy may be due for an update.  The 2020 Census data offers for the first time a table on “group quarters” such as prisons and colleges, making it simple for jurisdictions to exclude or reallocate those numbers as they calculate how to divvy up populations into equal voting districts.

In Florida, eight counties that include prisons already exclude data on inmates from consideration when drawing local voting districts. They are: Bradford, Franklin, Gulf, Jefferson, Lafayette, Madison, Okeechobee and Washington, according to Prison Policy Initiative.

In the case of Jefferson County, a lawsuit brought by the American Civil Liberties Union of Florida and the Florida Justice Institute compelled the change. The lawsuit charged that more than 43 percent of the voting-age people in Jefferson County’s District 3 at the time of Census taking in 2010 were not necessarily residents but were prisoners in the state prison there, leaving non-incarcerated voters in that district with outsized political influence compared with voters in the other four districts of equal population.

Judge Mark Walker threw out Jefferson County’s voting maps, ruling that they violated the U.S. Constitution’s guarantee of “one person, one vote.”

Demanding an end to prison-based “gerrymandering”

The impact of this debate is most evident at the local level, where inmates of prisons, jails and detention centers constitute the greatest share of a given district’s population, Wessler said. The impact on legislative and congressional districts, which are much larger, is less clear, because jails and prisons within them represent smaller shares of the district population.

State legislatures and redistricting commissions determine legislative and congressional voting boundaries. Local officials determine voting districts in their jurisdictions.

Some prisons, jails and detention centers are located in populous urban centers and others in sparsely populated rural areas. Excluding Census data on inmates of those facilities in a district forces the district to expand its boundaries to take in more population.

That could enhance or diminish the district’s voting majority, depending where the boundaries are set. Meanwhile, the data on the incarcerated people would be reallocated to their hometowns, adding population to those districts. Much depends on where that data lands for Census purposes and how redistricting authorities redraw the boundaries in response.

The NAACP Legal Defense and Education Fund, the ACLU and other civil-rights organizations have taken local and state governments to court to demand an end to prison gerrymandering.

One of them is Pennsylvania, a state where redistricting is governed by a commission, not by the state legislature as in Florida. The Legislative Reapportionment Commission voted 3-2 on Aug. 24 to abolish prison gerrymandering there.

“Racial injustice can be seen in the mass incarceration of mostly Black and Brown people in Pennsylvania and across the country, and it is undeniably compounded when states count incarcerated people as residents of the districts in which they are held behind bars — even though they cannot vote in these districts, cannot form ties with the communities where prisons are located, and have no expectation of influencing representatives or being treated as constituents in those areas,” said Steven Lance, policy attorney for the NAACP’s Legal Defense and Education Fund, in a statement issued the day of the vote.

“Prison-based gerrymandering erodes the ideal of fair and equal governance in Pennsylvania and extends mass incarceration’s racially discriminatory harms into the electoral sphere. We applaud the [commission] for taking action at this critical juncture for our democracy.”

Pennsylvania House Democratic Leader Joanna McClinton at the Aug. 24 redistricting hearing: “The time to correct this injustice is now.” Screenshot: Pennsylvania Redistricting

The 3-2 vote was a partisan one, with the two elected Democratic representatives in favor and the two elected Republicans opposing. The independent chairman, former University of Pittsburgh chancellor Mark Nordenberg, appointed by the Pennsylvania Supreme Court, broke the tie in favor of making the change.

The debate there, as in other states this year, included concerns that this policy change would put lawmakers further behind schedule following COVID-induced delays in gathering and disseminating 2020 Census data — and with 2022 elections fast approaching.

Commission member Rep. Joanna McClinton, the House Democratic Leader in the Pennsylvania General Assembly, led the charge to change how inmate data is allocated in her state. She said the commission’s redistricting staff stated it would be able to reallocate the data on inmates in a matter of weeks and that the delay is worthwhile.

“I fully appreciate that time is certainly precious, given the immense amount of work we have ahead and the delay in the delivery of Census data. But it is worth the time and the effort to ensure equal elections and equally weighted votes,” McClinton said.

“We cannot wait another 10 years,” she said. “The time to correct this injustice is now.”

In Florida, legislators have just launched their redistricting efforts. A central website for the process — — launched last Thursday.

States Newsroom reporters Nikita Biryukov, Stephen Caruso, Moe Clark, Bruce DePuyt, Arren Kimbel-Sannit, Shannon Miller and Graham Moomaw contributed to this report.

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Laura Cassels
Laura Cassels

Laura Cassels is a reporter, former statehouse bureau chief, and former city editor. She is a classical pianist, a Florida State University graduate and proud alum of the Florida Flambeau, an independent college newspaper.