by David Reutter

Two federal district courts, one in Florida and the other in Rhode Island, have held prison gerrymandering unconstitutional, though one of the orders was overturned on appeal. The rulings are the first of their kind.

“This is a big win for democracy,” said Adam Lioz of the Washington, D.C.-based public policy group Demos, who assisted in representing the Rhode Island plaintiffs. “Prison gerrymandering distorts representation and should no longer be tolerated. This decision should pave the way for other courts to address this long-standing problem.”

Both cases were brought alleging violation of the U.S. Constitution’s requirement of “one person, one vote.” They asserted that prison gerrymandering, in which prisoners are counted as residents of the district where they are incarcerated, watered down the strength of residents’ political representation by bolstering the power of residents who lived in the same district as non-voting, unrepresented prisoners. [See: PLN, Dec. 2012, p.1].

The Florida case challenged the inclusion of 1,157 prisoners held at the Jackson Correctional Institution (JCI), which is in a rural county in Florida’s panhandle. The Rhode Island case took issue with 3,433 prisoners housed at the Adult Correctional Institution (ACI), the state’s only prison, being counted as residents of the City of Cranston.

In each case the issue was the inclusion of prisoners as residents of the district where they were incarcerated when local governments drew districting maps following the 2010 U.S. Census. Those maps set voting districts for school boards and the county or city boards of commissioners. The local government agencies argued they had properly relied upon the census data to make districting determinations. Not so fast, said the district courts.

The census, the U.S. Supreme Court has held, may be a starting point, but it does not necessarily produce constitutional outcomes in all cases. The one person, one vote principle protects both representational and electoral equality. “[T]o determine whether one person one vote principles have been violated, it is necessary to look at the population base that’s chosen because there is no way to directly measure vote dilution or representational harm,” said the Florida district court.

The court in Rhode Island concluded that “the ACI’s inmates lack a ‘representational nexus’ with the Cranston City Council and School Committee.” It noted that “Cranston’s elected officials do not campaign or endeavor to represent their ACI constituents,” and that the prisoners cannot vote; those that can must do so through absentee ballots from their pre-incarceration addresses. In sum, prisoners are “unable to participate in, benefit from, or contribute to any other aspect of civic life in Cranston.”

The Florida court’s 86-page ruling held likewise, finding JCI’s prisoners live in a “state run enclave” that requires them to “go on with their lives mostly separated from the communities in which their facilities happen to be located.” Thus, they have no representation from county officials.

The point the courts made about political power and representation was exemplified by ACLU attorney Nancy Abudu. “If I want to get a road fixed, if I want a law changed, if I want more impact on a school board member or county commissioner, I have more power because my representative has to deal with fewer people” due to prison gerrymandering, she said. “It’s about access and the ability to influence, and making sure officials are responsive to their electorate.”

On that point, the Florida court found the voters in the district housing JCI had about 3.5 times the voting strength of voters in other districts. In the Rhode Island case, 25% of the population in the district that included Cranston was comprised of prisoners.

The Florida court, in rejecting a slippery slope argument, noted the case dealt with state, not county, prisoners. “In particular, the situation would be quite different if we were dealing with a state legislative district because state prisoners are obviously affected by the policies put in place at the state level,” it wrote. While prisoners receive no representation from city or county officials, “[t]he same would not be true of the state senator and representative whose territory includes JCI.”

The court concluded by noting it did not decide “that the JCI inmates lack political equality with their ‘neighbors’ in Jefferson County. The State of Florida “has explicitly deprived them of their representational rights, at least with respect to units of local government.”

In both cases, the government agencies were ordered to submit new redistricting plans that did not include prisoners as local residents.

The Florida plaintiffs were represented by the ACLU and the Florida Justice Institute, and that case settled in July 2016. See: Calvin v. Jefferson County Board of Commissioners, 172 F.Supp.3d 1292 (N.D. Fla. 2016).

The plaintiffs in Rhode Island were represented by the ACLU, Demos, the Prison Policy Initiative and the ACLU of Rhode Island. See: Davidson v. City of Cranston, 188 F.Supp.3d 146 (D. RI 2016). However, the district court’s May 2016 ruling in that case was reversed by the First Circuit on September 21, 2016. The appellate court wrote that “The Constitution does not require Cranston to exclude the ACI inmates from its apportionment process, and it gives the federal courts no power to interfere with Cranston’s decision to include them.” Accordingly, summary judgment was entered in favor of the defendants on remand. See: Davidson v. City of Cranston, 837 F.3d 135 (1st Cir. 2016).

Thus, more legal challenges are needed with respect to prison gerrymandering, to build up a body of case law to establish that practice is improper and unconstitutional. 

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