Frequently asked questions in preparation for the 2021 redistricting process in Pennsylvania.
35 groups unveil Letter to Legislative Reapportionment Commission calling for an end to prison gerrymandering. Read the letter here.
Where does the Census Bureau count incarcerated persons?
Under the Census’s “usual residence” rule, incarcerated people are counted at the address of the correctional facility where they are held.
Is the Census Bureau definition of “usual residence” the same as legal or voting residence?
NO. For most people, it has been taken as such, but there is no legal requirement or expectation that it be so. In fact, in a variety of cases—such as people living in shelters, college students, or people with two or more residences—they’re often different. Many college students are counted by the Census at their parents’ address, not their dormitories but opt to register to vote in their college community , for example and people with two homes may be counted as living in one, but use an alternative as their primary residence for tax and voting purposes.
Does federal law require that states use Census Bureau data in legislative redistricting?
NO. Neither PA nor federal law requires use of Census Bureau data in redistricting of state House and Senate districts. The US Supreme Court has held that states are not required to use the Census Bureau’s data; the state can choose what population base to use for redistricting. Many counties with large prisons throughout the United States already reject the Census data and apportion political power within the county on the basis of actual — not prison — populations.
Why is this issue emerging NOW? Hasn’t the count always been done this way?
Two reasons. First, until the 1960s, there was no legal requirement that districts have equal populations, which was typically used to disempower Black Americans across the country until it was ruled unconstitutional in a series of Supreme Court Cases. Second, mass incarceration is a relatively recent phenomenon; where the Census counted incarcerated people had little effect on political representation until the prison system rapidly expanded in recent decades. In Pennsylvania, a recent study shows that prison gerrymandering only made certain state house districts unconstitutional in size after 2010.
Are there states that have addressed this issue through legislation?
Yes. According to the National Conference of State Legislatures, as of July 2021, 11 states have passed legislation to end prison gerrymandering. Two—Maryland and New York—implemented it in the last round of redistricting (and withstood both state and federal court challenges), while 8 plan to do so in 2020 and Illinois plans to by 2030.
Are there states that have addressed this in other ways?
Yes. Redistricting commissions across the country have joined hundreds of local jurisdictions that have opted to do this adjustment on their own, some with a vote on a commission resolution, some in response to litigation. California’s redistricting commission has already unanimously voted to avoid prison gerrymandering. Redistricting commissions in Montana and New Mexico are currently considering adjustments to their population counts to avoid prison gerrymandering.
Would reallocation of prison data impact funding for host communities?
No. One of the most common arguments reallocation of prison data is that prison towns and communities will lose needed funding. This is based on a misunderstanding of how federal and state funds are allocated, and how census data is used in funding formulas. Find details and research documentation is available here.
Find additional FAQ regarding prison-based gerrymandering here.
Does Pennsylvania law require use of Census Bureau data in redistricting?
Simply put, no. Nowhere in PA law does it require that the Census data not be adjusted. Previous LRCs have made technical adjustments to official Census reports before drawing legislative districts, such as correcting voting-district code and name discrepancies, late precinct changes, and problems with split blocks.
How does the current practice impact representation in PA?
Research by Villanova professors Brianna Remster and Rory Kramer shows that prison gerrymandering is currently distorting representation in the PA legislature in several ways. Overall, because most districts do not contain a state prison (there are less than two dozen state facilities but 203 districts), most PA residents are negatively impacted. Only a handful of districts that have prisons benefit from this policy; residents of those districts receive more representation, at the expense of districts that don’t have a prison.
At the extreme, prison gerrymandering allows four legislative districts to meet the legal definition of equal representation only because they have a prison. And if incarcerated persons were instead currently counted in their home communities, researchers estimate that 4 legislative districts would be legally too small to be a district. Together, those 4 districts contain roughly 264,000 people. In other words, some 264,000 PA residents are legally underrepresented because of prison gerrymandering under the current district map.
Additionally, because of who is incarcerated, Black and Brown communities are disproportionately impacted. Residents of districts with high incarceration rates have less representation, regardless of whether they have ever been incarcerated.
Is data available to adjust the Census count for Pennsylvania prisons?
Yes! The Department of Corrections has a pre-incarceration address on file for every person incarcerated in state facilities. Experts and the Census itself deem these addresses appropriate for the task at hand. Counting state prisoners in their home communities is the top priority, because they are, in most cases, incarcerated far from home, and most individuals are incarcerated in state prisons.
But there are also federal and county prisons to consider and addressing federal prisons is a very easy fix. Because most individuals incarcerated in federal facilities located in PA are not from PA, many states have simply removed incarcerated persons from the data and (no pre-incarceration addresses needed).
In contrast, county prisons are usually smaller and mostly hold local residents awaiting trial, thus in many cases county prisons don’t affect representation— because the people in those facilities would be counted in that same district if they weren’t incarcerated on Census day.
Is it legal to use adjusted data?
Yes! The US Supreme Court (Fletcher v. Lamone 2012) affirmed Maryland’s use of adjusted data and the New York Supreme State Court did so for New York (Little v LATFOR 2011). In fact, the Census itself offers to do so, at states’ request. States provide pre-incarceration addresses, and in return the Census provides adjusted data. It is too late to take advantage of this now, but states can consult experts or employ experts on how to do so now. Further, the courts have ordered jurisdictions that blatantly relied on prisons to redistrict. In the words of a federal judge, “blind reliance on census data can lead to unconstitutional results” (Calvin v Jefferson County 2014).
Would this kind of adjustment create an unacceptable delay in the redistricting process?
No! The Department of Corrections already has a dataset ready for use. Once the PA Legislative Reapportionment Commission decides to use it, the process is quite simple and would not cause undue delay. Failure to use corrected data could cause far greater delay. If final maps are drawn without adjustments, they will without question be vulnerable to costly and time-intensive legal challenges.
Are privacy protections a concern in using adjusted data?
No! No individually identifiable data would be made public to do this;the data which states ultimately use to redistrict and release to the public contains only anonymous population counts.
Find more Information related to Pennsylvania prison-based gerrymandering here.
When Your Body Counts But Your Vote Does Not: How Prison Gerrymandering Distorts Political Representation, Time 2021