Prison Malapportionment: Forging a New Path for State Courts.

AuthorChaker, Alaa

COMMENT CONTENTS INTRODUCTION 1252 I. BACKGROUND ON PRISON MALAPPORTIONMENT 1255 A. Prison Malapportionment's Proper Framing 1255 B. Sources of Prison Malapportionment 1257 C. Effects of Prison Malapportionment 1259 II. FEDERAL CHALLENGES TO PRISON MALAPPORTIONMENT 1262 A. One-Person, One-Vote 1263 B. Other Theories: Voting Rights Act & Administrative Procedure Act 1267 III. THE PROMISE OF STATE CONSTITUTIONS AND STATE COURTS 1269 A. State Residency Requirements 1270 B. State Equal-Population Requirements 1277 C. Pursuing the State-Law Path 1281 1. Case Study: Michigan 1282 2. A Promising Start 1284 CONCLUSION 1287 INTRODUCTION

"THE LEGAL REVOLUTION WHICH HAS BROUGHT FEDERAL LAW TO THE FORE MUST NOT BE ALLOWED TO INHIBIT THE INDEPENDENT PROTECTIVE FORCE OF STATE LAW-FOR WITHOUT IT, THE FULL REALIZATION OF OUR LIBERTIES CANNOT BE GUARANTEED." - WILLIAM J. BRENNAN, JR. (1) Just weeks after the Supreme Court in Rucho closed the federal courthouse doors to partisan-gerrymandering claims, (2) the North Carolina state courts rose to the occasion. In a 357-page opinion, a North Carolina court did what the Supreme Court could not, invalidating the state's legislative maps on illegal partisan-gerrymandering grounds. (3) This determination rested on the North Carolina State Constitution, reflecting a new judicial federalism, (4) and may encourage partisan-gerrymandering reformers to turn to the state courts after the 2020 census and 2021 redistricting cycle. As this litigation surges in state courts, the time is ripe for states to tackle other pressing redistricting issues, including prison malapportionment--commonly known as "prison gerrymandering." (5)

For purposes of redistricting, most states count incarcerated individuals as residents of the jurisdictions where they are incarcerated, rather than where their pre-incarceration homes are located. Since political districts are drawn based on population, districts with prisons--rather than the home districts of incarcerated individuals--benefit from the population bump. This practice thus shifts representational power from the home communities of incarcerated people to the towns where they are imprisoned. The final result is a malapportioned map with artificially inflated representation for prison districts.

The effects of prison malapportionment are especially pronounced in this era of mass incarceration. (6) To accommodate the modern explosive growth in prison populations, thousands of prisons were built. Between 1990 and 2005, on average, a new prison was constructed in America every ten days. (7) And this boom was geographically skewed. During the peak years of prison building between 1992 and 1994, nearly sixty percent of new prisons were built in rural areas despite the fact that such rural towns accounted for only twenty percent of the population. (8) As a result, many rural counties in America experienced a shift from population loss in the 1980s to population gain in the 1990s. (9) This growth in population in rural prison towns is largely the result of relocated incarcerated populations, which disproportionately consisted of Black and Latinx people from urban communities. (10)

Thus, this period led to a shift in political power around the country: power was systematically transferred from racial minorities and urban centers to predominantly white, rural prison towns. For example, after the 2000 census, incarcerated individuals made up one-third of the population in one district in Jones County, Iowa. (11) In Clay County, Kentucky, individuals incarcerated in two correctional institutions accounted for nearly half of the population in one district. (12) And in Georgia, nine state house districts derived over five percent of their population from individuals in prisons. (13)

Many academics and practitioners have argued that this practice constitutes a violation of the Federal Equal Protection Clause's one-person, one-vote principle. These malapportionment challenges are just budding in federal courts, where they have been met with mixed success. The first state-court challenge to the practice was also recently filed, (14) and similar challenges will likely be brought as state courts become increasingly central to the vindication of electoral rights, especially in the wake of Rucho.

But despite the promise of state courts, current scholarship addressing prison malapportionment fails to comprehensively engage with state-law claims. (15) In this Comment, I argue that state constitutions and statutes provide a remedy for prison malapportionment that has, until now, gone largely unappredated. Specifically, laws in forty-six states stipulate that residency is determined by the intent of the individual. Because incarceration involves the involuntary removal from one's home, state law generally presumes that one's preincarceration address fixes residency unless an individual affirmatively attests otherwise. This simple fact has enormous implications for prison malapportionment, and reformers should leverage these state-residency laws in addition to the common state-constitutional requirement that legislative districts are to be of equal populations.

This Comment thus proposes a path forward for challenging prison malapportionment in state courts. Part I considers the concept of prison malapportionment, its legal and analytical entailments, and the effects of the practice. Part II explains federal-law theories that have been used in litigation to date. Part III then evaluates the possibility of challenging prison malapportionment under state law. These state-law claims make use of statutory provisions defining residency and constitutional equal-population provisions and suggest that state-court prison-malapportionment litigation is one viable path forward.


    1. Prison Malapportionment's Proper Framing

      Over a century ago, in his foundational work on gerrymandering, Elmer C. Griffith remarked that "[t]he word gerrymander is one of the most abused words in the English language.... It has been made the synonym for political inequality of every sort." (16) So too in the prison population context evaluated here, "prison gerrymandering" is often used, though the phrase is misleading, if not a misnomer. The term "gerrymandering" refers to the formation of political districts and the alteration of geographic boundaries. (17) "Malapportionment," on the other hand, encompasses the equality of representation of voters within districts. (18) Malapportionment claims date back to the Supreme Court's seminal decision in Reynolds v. Sims, where the Court first articulated the one-person, one-vote principle under the Fourteenth Amendment's Equal Protecdon Clause. (19) There, the Court invalidated Alabama legislative maps due to significant population disparities between districts. The Court observed that population-variance ratios of nearly five-to-one would have existed in some of the proposed districts--a disparity so substantial that it was deemed unconstitutional, (20) as the Constitution mandates an equal-population requirement for districts. (21) This requirement, the Court explained, is the "basic principle of representative government." (22)

      Similarly, a prison-malapportionment suit challenges the allocation and apportionment of incarcerated individuals to achieve districts of equal population. (23) Prison malapportionment concerns where individuals are counted, rather than the manipulation of the geographic boundaries themselves. It is thus an issue of malapportionment--which defies the one-person, one-vote principle--rather than one of districting and line-drawing. The language of "prison malapportionment" is therefore more legally and analytically accurate.

      This language shift is not merely semantic. Issue framing can shape the legal theories attending prison-malapportionment challenges and influence whether a claim can even make it into court. Although the Supreme Court in Rucho recently held partisan-gerrymandering claims to be nonjusticiable, it reaffirmed the justiciability of malapportionment claims, (24) holding that for these claims, there remains "a role for the [federal] courts." (25)

      Indeed, the Supreme Court and federal courts nationwide have recognized and adjudicated malapportionment claims for over six decades, and prison-malapportionment reform should be located within this broader history of courts vindicating malapportionment claims. As the Court erects barriers around certain types of redistricting claims, it is crucial that academics and practitioners accurately frame the debate. Opponents of prison-malapportionment reform are already attempting to tie prison-malapportionment challenges to the political-question implications of Rucho. (26) Distinguishing "malapportionment" from "gerrymandering" is thus both analytically appropriate and strategically beneficial.

    2. Sources of Prison Malapportionment

      To fulfill its constitutional mandate to conduct a decennial census, (27) the Census Bureau counts the entire United States population every ten years. The central purpose of the census is to ensure the proper enumeration of the country's population to fairly apportion congressional seats. (28) To guide this allocation of individuals, the Census Bureau applies a "usual residence" principle--a concept that dates back to the very first decennial census in 1790. (29) The Census Bureau defines "usual residence" as "the place where a person lives and sleeps most of the time." (30) Under this principle, individuals incarcerated in federal and state prisons, as well as in local jails and other municipal confinement centers, are counted not at their home residence, but at the facilities that confine them. (31)

      Many activists and scholars have argued that incarcerated individuals should not be considered legal residents of the towns where they are forcibly detained. For one, incarcerated individuals maintain ties to their...

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