Introduction 324 I. Mass Incarceration: Disenfranchisement and the Distortion of Democracy 326 A. Mass Incarceration 326 B. Felony Disenfranchisement 330 1. Historical Origins of Felony Disenfranchisement 331 2. Electoral Impact of Felon Disenfranchisement in an Era of Mass Incarceration 333 II. Redistricting and Counting Prisoners 335 A. Constitutional Requirements 336 B. The "Usual Residence" Rule 338 C. How Is the Usual Residence Rule Applied to Other Group-Quartered Persons for Purposes of Apportionment? 339 1. Allocation of Overseas Federal Employees 340 2. Residence of Domestic Military Bases 342 3. Residence of College Students 345 III. Vote Dilution and Prison Gerrymandering: Recent ACLU Litigation and Developments in Prison Gerrymandering 347 A. Calvin v. Jefferson County Board of Commissioners: Understanding the Equal Protection Clause to Protect Representational Equality, as well as Electoral Equality 349 B. Does Evenwel v. Abbott Change the Analysis of Whether Persons Incarcerated Are Residents of Their Prison Cell or Home Address? 354 C. Davidson v. City of Cranston 356 D. Reconciling Calvin, Evenwel, and Davidson to Create a Functional Framework for Apportioning Incarcerated Persons 357 IV. Developments in New York and Maryland Since 2010 360 A. New York: Little v. LATFOR 361 B. Maryland: Fletcher v. Lamone 364 V. Using Representational Equality Framework: Prisoners' "Usual Residence" Should Be Their Home, Not Their Cell, and Redistricting Should Be Undertaken Accordingly 367 A. Prisoners Are Different 367 B. The Census Bureau's Continued Use of the "Usual Residence" Rule Is Not Determinative 370 Conclusion 371 INTRODUCTION
Mass incarceration not only disenfranchises millions of Americans, disproportionately people of color, it also increases the voting power of predominantly white rural areas where prisons are located. People in prison are counted towards representation while being excluded from the franchise.
Every ten years, the Census Bureau counts the entire United States population. (1) Each individual is counted at his or her "usual residence," the home where he or she lives or sleeps most of the time. (2) Legislative seats are apportioned, and electoral district lines drawn, based on that Census count. (3) For purposes of the Census, the approximately 2.2 million people in prison in the United States are counted as residents of the district in which they are incarcerated, not of their home prior to incarceration. (4) In all but two states, individuals incarcerated for a felony conviction are also ineligible to vote. (5) Consequently, they become non-voting "residents" of the district in which they are incarcerated, represented by a legislator over whom they have no electoral influence.
The practice of counting people who are incarcerated and ineligible to vote as residents of their prison cell inflates the population count in districts where prisons are located. (6) It increases the voting strength of those districts' other residents relative to the residents of neighboring districts, and dilutes the voting strength of prisoners' home communities. (7) At the same time, correctional facilities are not dispersed evenly throughout most states, but are often found in more rural, predominantly white areas, while people incarcerated in these facilities are disproportionately people of color from comparatively urban areas. (8) Counting prisoners as residents of the district where they are incarcerated shifts political power from urban to more rural areas. (9) The confluence of prisoners' ineligibility to vote, an increase in the United States' prison population in recent decades, and the treatment of people in prison as "residents" of the district where they are incarcerated has skewed legislative apportionment and the distribution of political power. Counting people in prison as residents of their home prior to incarceration will begin to address this imbalance.
This Article proceeds as follows: Part I provides background on felony disenfranchisement, mass incarceration, and the cascading effects of both on electoral apportionment. Part II discusses the decennial Census, its application of the "usual residence" rule to other people who live in "group quarters," including military personnel and college students, and how these groups are treated for purposes of legislative apportionment. Part III then analyzes the application of the "usual residence" rule to prisoners, and reviews recent federal court challenges to apportionment schemes that count people in prison as "residents" of the district in which they are incarcerated. Part IV discusses how New York and Maryland have successfully addressed the issue of counting people in prisons by designating them as residents of their prior address for purposes of legislative apportionment. Part V discusses states' and localities' options for improving equality in apportionment before redistricting based on the 2020 Census.
MASS INCARCERATION: DISENFRANCHISEMENT AND THE DISTORTION OF DEMOCRACY
Mass incarceration, combined with felony disenfranchisement, compromises the most fundamental aspect of democracy by removing the right to vote from millions of Americans. Section I.A provides basic statistics about the acceleration in the United States' use of prisons and the resulting era of mass incarceration. Section I.B discusses the racially discriminatory roots of laws that remove citizens' eligibility to vote after a criminal conviction, commonly referred to as "felony disenfranchisement," and the electoral impact of felony disenfranchisement in the era of mass incarceration.
The United States currently convicts and incarcerates its citizens at an historically unparalleled rate. In the United States, 85.9 million people have a criminal record. (10) Today, almost 2.2 million people are being held in prisons or jails, (11) and over 4.6 million are under some other sort of community supervision, such as parole or probation. (12) The United States' incarceration rate increased sharply beginning in the 1980s, with the "war on drugs." (13) In 1980, approximately 500,000 people were incarcerated. (14) The number of people reached over 1.1 million in 1990, and more than 1.9 million in 2000. (15) By the close of 2010, 1,404,000 people were behind bars in state prisons, 748,700 in local jails, and 209,800 in federal facilities, totaling more than 2.2 million people incarcerated. (16) At the same time, the number of people under criminal justice supervision was almost 7 million. (17)
Mass incarceration and its collateral consequences, such as loss of voting rights, disproportionately affect people of color. (18) There are significant racial disparities at nearly every stage of the criminal justice system, including, inter alia, disparities in police stops, (19) arrests, (20) prosecutions, (21) convictions, (22) imprisonment, (23) and length of sentence. (24) These disparities lead to the disproportionate imprisonment of people of color. (25) For example, Black and Latino offenders sentenced in state and federal courts face significantly greater odds of incarceration than similarly situated white offenders, (26) and receive longer sentences than their white counterparts. (27)
At the same time, prisons are often located in predominantly white, rural areas. (28) Despite studies that show better outcomes when individuals convicted of a crime are treated in smaller community-based programs, (29) people are often incarcerated far from their home. (30) Rural areas suffering from the loss of farming or manufacturing jobs have seen prisons built in their areas, based, in part, on the promise that prisons provide local economic development. (31) Although prison companies have invested heavily in selling the development myth, (32) corrections-related jobs arguably do not compensate local economies for the counterbalancing tax breaks and economic incentives and, more broadly, do not account for the financial and social costs of incarceration. (33)
The geographic location of prisons not only separates people incarcerated from their families and communities, it also results in the reallocation of political power from cities to more rural areas. A series of Prison Policy Initiative reports illustrate this point: in Connecticut, for example, the prison population disproportionately comes from the five largest cities (Bridgeport, Hartford, New Haven, Stamford, and Westbury), but prisons are concentrated in just a few areas, with sixty-five percent of the state's prison beds located in just five towns (Cheshire, East Lyme, Enfield, Somers, and Suffield). (34) In Massachusetts, prisons' locations have led to electoral inequality in the seven towns that use a "representative town meeting" form of government, where prisoners are counted as members of the district but cannot participate in the town meetings where decisions are made. (35) In Pennsylvania, forty percent of the people in state prisons are from Philadelphia, while all but one percent are incarcerated outside of the city and counted in the eight state house districts where they are incarcerated. (36) The same pattern was seen in New York and Maryland, until they reformed their methods of apportionment, as discussed in Sections IV.A and IV.B.
The United States' overuse of incarceration and the shift of electoral power from urban to rural areas has skewed legislative apportionment and equitable electoral districting.
Felony disenfranchisement is the loss of a citizen's eligibility to register and vote due to a criminal conviction. (37) In all but two states, citizens lose the right to vote upon conviction of a felony. Four states permanently ban all persons with a felony conviction from voting. (38) Twenty states ban all persons with a felony conviction from voting until they have completed their sentence, including prison, parole, and probation. (39) Six states...