The emerging constitutional law of prison gerrymandering.

• Author: Skocpol, Michael

Table of Contents Introduction I. Background A. What Is Prison Gerrymandering? B. What Are the Harms of Prison Gerrymandering? C. Where Does Prison Gerrymandering Occur? D. What Are the Remedies? E. Administrative and Legislative Reforms II. Recent Litigation A. Calvin v. Jefferson County Board of Commissioners B. Evenwel v. Abbott C. Davidson v. City of Cranston III. Census Data Are Not a "Constitutional Default" A. After Evenwel, One Person, One Vote Protects Representational Equality--Not Reliance on the Census B. Earlier Precedents Hold that Census Figures Are Not Talismanic IV. Building a Better Framework A. Representational Equality Is an "Aggregate Right" B. Prisoners Share Representational Equality Rights with Communities C. The Proper Test Is Community-centric 1. "... a constitutionally permissible one-person, one-vote baseline ..." 2. "... a discrete group of persons ..." 3. "... where the government has involuntarily relocated them ..." 4. "... where they do not regularly interact with the surrounding community ..." D. The Remedy Should Be Reassignment Whenever Possible Conclusion Introduction

Imagine that one morning 1.5 million Americans disappear from their beds. Breakfast tables nationwide are missing sons and daughters, and newly vacant homes dot neighborhoods. Fortunate communities are largely untouched by the disappearances; others bear the brunt more heavily. (1) Imagine further that those 1.5 million Americans resurface far from home. They are found concentrated in blocs--a few thousand here, several hundred there--and walled off from whatever new and unfamiliar communities happen to be nearby. The human and sociological consequences of such an abrupt dislocation are the stuff of heart-wrenching fiction.

Set aside the melodramatic abruptness, and this is precisely the change that mass incarceration has wrought in this country over the past several decades. (2) A vast literature grapples with the effects of that dislocation, the political and sociological consequences of which have inspired numerous policy critiques and reform proposals. (3) This Note deals with one consequence in particular: the phenomenon known as "prison gerrymandering."

"Prison gerrymandering" is shorthand for the side effects of mass incarceration when states and localities draw electoral districts. (4) For decades, the U.S. Census Bureau has counted prisoners where they "reside": their places of incarceration. (5) Though administrable for census-takers, this practice has potentially troubling consequences when census data provide the baseline for apportioning democratic representation. Prisons house dense agglomerations of nonvoters, which can create anomalies among districts if prisons boost the census populations of their host communities, entitling them to more representation than they would otherwise enjoy. Two districts with ostensibly equal numbers of people may differ significantly in the proportion of voters within their boundaries if one is partly populated with prisoners and the other is not. (6) Conversely, counting inmates at their prison "residences" deprives their home communities--disproportionately minority, urban, and poor--of political clout they might otherwise enjoy if prisoners were counted at their preincarceration addresses. (7) Reformers argue that the result is a subtle shift of political power--an electoral windfall for mostly rural, white, conservative districts at the expense of urban and minority voters with different political preferences. (8)

In recent years, a movement to end prison gerrymandering has been growing. The run-up to the 2010 Census and the wave of redistricting that followed brought sustained attention to the problem for the first time. That is thanks largely to the work of policy entrepreneurs like Peter Wagner and his Prison Policy Institute, which have shined a spotlight on the issue and pushed for administrative and legislative reforms. (9) Major progressive nonprofits, such as the ACLU and NAACP, have also taken up the cause. (10)

Those efforts have enjoyed some success: New York, Delaware, California, and Maryland have all passed legislative reforms that reallocate prisoners to places of previous residence for redistricting purposes. (11) And the movement won changes to how and when the Census Bureau makes data about prisoners available, a tweak that helped enable the state-level reforms. (12) But the Bureau has so far been unwilling to alter the status quo of where it enumerates prisoners, and it recently dampened hopes of a nationwide administrative quick fix for the 2020 Census when its proposed rules for that count did not alter the usual residence rule as it applies to prisoners. (13) These efforts should intensify in the next redistricting cycle.

This Note addresses a newly emerging battleground in the prison gerrymandering fight: lawsuits mounting constitutional challenges to the practice. In March 2016, a federal district court in Florida became the first to hold that a districting plan violated the Constitution by using unadjusted census data to count prisoners at their places of incarceration. (14) Specifically, it found a violation of the Equal Protection Clause's one-person, one-vote principle, (15) which requires states and localities to craft electoral districts of roughly equal population. (16) A second district court soon followed suit, invalidating a municipal districting scheme in Rhode Island (17)--but the First Circuit has since reversed that decision. (18) Two cases and two opposite results: courts are already divided over how to handle these novel claims.

The constitutional issues that other courts will confront when more such cases arrive have so far garnered too little attention from legal scholars. The related but distinct issue of felon disenfranchisement, for example, has received much more extensive scrutiny. (19) Scholars who have zeroed in on prison gerrymandering specifically have mostly followed reformers' lead by focusing on policy critiques and possible legislative solutions: Why is prison gerrymandering bad public policy? (20) What are the prospects for legislative reform? (21) And so on. Potential affirmative litigation has received short shrift in that conversation, and the legal issues that drive such litigation remain mostly unanalyzed. (22) A few student notes have argued, albeit at a high level of generality, that prison gerrymandering is contrary to constitutional values, but even those focus largely on legislative or administrative issues as opposed to doctrine. (23) One voting rights practitioner sketched, in general contours, what constitutional one-person, one-vote or statutory vote dilution challenges to prison gerrymanders might look like, writing before people began litigating such cases. (24) But since the rubber met the road, no systematic scholarly analysis grappled with the courts' potential role or provided them tools to craft a workable doctrine. (25)

The time is ripe to do so. While the pathbreaking decisions in Florida and Rhode Island ushered courts into the fray, two other recent developments increase the likelihood of future litigation. First, the Supreme Court revisited the fundamental underpinnings of the governing one-person, one-vote doctrine in Evenwel v. Abbott, (26) a decision that churns the relevant doctrinal soil and might guarantee fertile ground for future prison gerrymandering challenges, as this Note argues (27)--or else might have salted the earth for such claims, as the First Circuit recently concluded. (28) Meanwhile, the Census Bureau appears to be digging in on the status quo: barring a last-minute change of heart, it will again count prisoners behind bars for the 2020 Census. (29) This state of affairs suggests that prison gerrymandering suits will multiply in coming years.

This Note attempts to give courts the tools they need to adjudicate equal protection challenges to prison gerrymanders. Specifically, it undertakes the first scholarly examination of the emerging case law of prison gerrymandering--analyzing two leading cases that stake out sharply divergent views of how the Equal Protection Clause governs such claims. It also applies scholars' insights about the nature of vote dilution claims to illuminate the tricky questions on which prison gerrymandering challenges turn. (30)

Part I of this Note offers a primer on prison gerrymandering. Part II introduces Calvin v. Jefferson County Board of Commissioners, (31) the first decision to uphold a constitutional challenge to a prison gerrymander; the Supreme Court's decision in Evenwel v. Abbott; (32) and the First Circuit's subsequent decision in Davidson v. City of Cranston, (33) which disagreed with Calvin? (34) Part III examines the foundational issues on which Calvin and Davidson part ways and concludes that Davidson was too dismissive of the novel claim that Calvin recognized. Contrary to the First Circuit's view, the Court's precedents, including Evenwel, permit one-person, one-vote challenges to prison gerrymanders. Finally, Part IV refines the framework Calvin proposed for adjudicating such challenges by engaging with scholarship relevant to the most difficult open question at the heart of these cases: What does the right to equal representation protect? The result is a novel proposal for how courts should adjudicate these claims in the future.

1. Background

   Inmates were enumerated in prisons as early as the Founding. (35) For most of this practice's history, it was uncontroversial and generally unproblematic. (36) In the last half-century, however, two developments have made the practice a source of concern.

   First, in the 1960s, the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment mandates that legislative districts be roughly equipopulous--a principle now known as "one person, one vote." (37) That doctrine originated with Baker v. Carr,i8 in which the Supreme Court departed from its...