Article by Ian Bollag-Miller*
1 Fordham L. Voting Rts. & Democracy F. 94
“One-person, one-vote” is a fundamental principle of democracy. In practice, however, vote distribution among population groups is often less than equal. Even in established democracies, prison malapportionment—the distribution of legislative seats by counting incarcerated people in their prisons’ districts rather than their home districts—is one example of a practice that distorts voter representation. Prison malapportionment allows less populous districts that house prisons to maximize their voting power at the expense of more densely populated districts from which many incarcerated people previously lived. While there has been significant scholarship on the causes and effects of prison malapportionment, there is no standard method for quantifying the level of distortion that results from the phenomenon. As such, no comparative study of prison malapportionment exists in the international context.
This Article presents a method to measure malapportionment that isolates the deviation from “one-person, one-vote” that arises specifically from prison malapportionment. This formula, “PMAL,” facilitates comparative analysis of prison malapportionment among various jurisdictions. It also aids in predicting and evaluating the success of reform efforts.
Introduction
In Walker County, Texas, incarcerated individuals without the right to vote represent 12 percent of the population in the state’s thirteenth legislative district.1See Prison Gerrymandering Project, Fixing Prison-based Gerrymandering After the 2020 Census: Texas, Prison Pol’y Initiative, https://www.prisonersofthecensus.org/50states/TX.html [https://perma.cc/V7WK-PW4E] (last visited Oct. 20, 2022). For a general overview of the United States’ “long history” of felon disenfranchisement, see One Person, No Vote: The Laws of Felon Disenfranchisement, 115 Harv. L. Rev. 1939, 1940 (2002). This means that eighty-eight actual residents of Walker County have the effective voting power of a group of one-hundred voters residing in a legislative district without a prison.2See Prison Gerrymandering Project, supra note 1. This phenomenon is known as prison gerrymandering or prison malapportionment.3“Gerrymandering” and “malapportionment” are often used synonymously. However, they are distinct in that gerrymandered districts can have equal populations but disparate voting power, while malapportioned districts have equal voting power but different population sizes. See Mitchell N. Berman, Managing Gerrymandering, 83 Tex. L. Rev. 781, 785 (2005). A more detailed discussion of the terminological distinction is provided. See infra Part I.A. Put differently, prison malapportionment refers to the practice of counting incarcerated individuals as residents of the district where their prison is located. This practice increases the voting strength of their prison’s district at the expense of the individual’s home district.4See Julie A. Ebenstein, The Geography of Mass Incarceration: Prison Gerrymandering and the Dilution of Prisoners’ Political Representation, 45 Fordham Urb. L.J. 324, 325 (2018). Is this practice fair? Is it necessary? Is it legal? If not, what can be done? Just how serious and widespread is the problem?
Since the 2010 Census, prison malapportionment has come under greater scrutiny in the United States.5See Nathaniel Persily, The Law of the Census: How to Count, What to Count, Whom to Count, and Where to Count Them, 32 Cardozo L. Rev. 755, 787-90 (2011) (predicting that the way the U.S. Census counts prisoners would be “the subject of much debate surrounding the 2010 Census.”). The resulting scholarship and advocacy produced some legislative reforms at the state level.6See, e.g., Janai Nelson, Counting Change: Ensuring an Inclusive Census for Communities of Color, 119 Colum. L. Rev. 1399, 1432 (2019) (finding that “New York, California, Maryland, Delaware, and over 200” localities amended their census practices to address the issue). But despite the growing conversation concerning prison malapportionment in the United States, there has not been a parallel discussion of the phenomenon in other countries. Why not?
On one level, this disparity makes sense: the United States is, by far, the nation with the largest incarcerated population, both in terms of the total number of prisoners and prisoners per capita.7See Statista Research Department, Countries with the Largest Number of Prisoners per 100,000 of the National Population, as of May 2021, Statista, https://www.statista.com/statistics/262962/countries-with-the-most-prisoners-per-100-000-inhabitants [https://perma.cc/VR2D-B8FZ] (last visited Oct. 20, 2022) (prisoners per capita); Statista Research Department, Countries with the Largest Number of Prisoners as of July 2021, Statista, https://www.statista.com/statistics/262961/countries-with-the-most-prisoners [https://perma.cc/FB9N-S25B] (last visited Oct. 20, 2022) (total number of prisoners). Yet, as of 2012, at least forty other countries restricted voting rights of incarcerated individuals on some level.8See International Comparison of Felon Voting Laws, ProCon.org, https://felonvoting.procon.org/international-comparison-of-felon-voting-laws [https://perma.cc/XX9T-5YHV] (last visited Oct. 20, 2022). And, at least in theory, many other countries with some level of prisoner disenfranchisement—that use population data to apportion legislative representation—should exhibit some level of prison malapportionment. Why, then, has the international and comparative discussion been so limited?
This Article addresses a key gap in the existing scholarship and policy debate: there is no widely utilized method for calculating the level of prison malapportionment. In response to this deficiency, this Article presents such a formula, which is adapted from a generally accepted method to measure malapportionment. Such a broadly applicable measure will allow for standardized comparative studies. In turn, this Article’s proposed formula may help facilitate discussion about the political, legal, and practical causes of, as well as reform opportunities for, prison malapportionment.
Part I provides a general overview of malapportionment and prison malapportionment. Specifically, Part I presents a brief survey of the existing research in the context of the United States, including a short discussion of enacted and proposed reform efforts. Part II discusses common features of existing methods for measuring general malapportionment. Part III then adapts one of the malapportionment formulae to present the prison malapportionment formula, PMAL. Additionally, Part III applies the PMALformula to a hypothetical example of a state with a significant level of prison malapportionment. Lastly, this Article offers general conclusions about the PMAL formula, suggests potential applications, and identifies areas for future research.
I. Malapportionment and Prison Malapportionment
A. Malapportionment
The principle of “one-person, one-vote” has become a central tenet of liberal democracy.9For a historical account of the transition of the concept of political representation from a feudal landholder’s obligation to a principle of popular sovereignty, see James A. Gardner, One Person, One Vote and the Possibility of Political Community, 80 N.C. L. Rev. 1237, 1244-51 (2002). In a system of universal suffrage, the idea that each vote should count equally reflects a fundamental notion of political equality and electoral fairness. In one voting rights case, the U.S. Supreme Court opined as follows:
How then can one person be given twice or 10 times the voting power of another person in a statewide election merely because he lives in a rural area or because he lives in the smallest rural county? Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote . . . [t]his is required by the Equal Protection Clause of the Fourteenth Amendment . . . [t]he idea that every voter is equal to every other voter in his [s]tate, when he casts his ballot in favor of one of several competing candidates, underlies many of our decisions.10Gray v. Sanders, 372 U.S. 368, 379-80 (1963).
In reality, courts usually tolerate some level of deviation from the one-person, one-vote principle.11Indeed, Supreme Court precedent has “saddled the one person, one vote doctrine with several vulnerabilities, including loose, uneven standards that apply to different types of apportionment cases, insurmountable burdens of proof, and equivocation about the Court’s own ability to adjudicate redistricting claims because of the partisanship that permeates the redistricting process.” Stephanie Cirkovich, Abandoning the Ten Percent Rule and Reclaiming One Person, One Vote, 31 Cardozo L. Rev. 1823, 1825 (2010). Some scholars have even queried whether equal voting power is in fact an essential feature of the democratic political tradition.12See, e.g.,Alan L. Clem, Problems of Measuring and Achieving Equality of Representation in State Legislatures,42 Neb. L. Rev. 622, 625-26 (1963). But while full equality of voting power is unlikely in a multi-district, winner-take-all electoral system,13See Lani Guinier, Groups, Representation, and Race-Conscious Districting: A Case of the Emperor’s Clothes, 71 Tex. L. Rev. 1589, 1595-96 (1993). violations of the one-person, one-vote principle can, and should, still be adjudicated at least “as a matter of math.”14Rucho v. Common Cause, 139 S. Ct. 2484, 2501 (2019). Notably, at least one federal appeals court has declined to find an equal protection violation in a system with prison malapportionment. See Davidson v. City of Cranston, 837 F.3d 135, 137 (1st Cir. 2016) (holding that the City of Cranston, Rhode Island did not violate the Equal Protection Clause by counting prisoners as residents of one of the City’s six wards).
Deviation from the one-person, one-vote principle is called malapportionment. In other words, malapportionment is the unequal population distribution across voting districts with equal voting power, creating a system where some lesser populated districts significantly influence electoral outcomes more than other more populous districts.15See Berman, supra note 3, at 785.
The term malapportionment is related to and often used interchangeably with gerrymandering. Gerrymandering is the “practice of dividing a geographical area into electoral districts, often of highly irregular shape.”16Gerrymandering, Black’s Law Dictionary (11th ed. 2019). The focus of gerrymandering, as opposed to malapportionment, is usually on the effects of drawing irregular territorial boundaries of electoral districts—rather than counting individuals within a district.17One familiar example is North Carolina’s oddly shaped twelfth congressional district, which “snake[s] over 160 miles across the state from Charlotte to Durham to join together as many Black voters as possible.” Mac Brower, Gerrymandering Deep Dive: North Carolina, Democracy Docket (Sept. 28, 2021), https://www.democracydocket.com/news/gerrymandering-deep-dive-north-carolina [https://perma.cc/L9FJ-2FKL]. Both concepts concern deviation from the one-person, one-vote principle. As such, they usually involve the same legal and political criticisms and justifications. But because this Article’s focus is on population distribution—rather than territorial demarcation—the term malapportionment is generally favored over gerrymandering.
Modern democracies generally disfavor unequal vote distribution. In the United States, the majority view of this phenomenon considers it antidemocratic.18See, e.g., Dan Balz, Gerrymandering is the Root of All Evil. Or is It?, Wash. Post (Jan. 29, 2018, 2:23 PM), https://www.washingtonpost.com/politics/gerrymandering-is-the-root-of-all-political-evil-or-is-it/2018/01/27/c12af98a-02e9-11e8-9d31-d72cf78dbeee_story.html [https://perma.cc/MBH7-39GB] (“Partisan gerrymandering is often seen as the root of much of what is wrong with current politics[;] . . . [m]ost Americans recoil at the contorted shape of some districts and see malevolent hands at work.”). From former Republican President Ronald Reagan to former Democratic President Barack Obama, prominent politicians across the political spectrum have condemned the practice.19See Americans are United Against Partisan Gerrymandering, Brennan Ctr. for Just. (Mar. 15, 2019), https://www.brennancenter.org/our-work/research-reports/americans-are-united-against-partisan-gerrymandering [https://perma.cc/JL82-YQNJ].
It is important to note, however, that not all unequal voting power results from political ill-will. For example, when it comes to malapportionment—though not gerrymandering—the relative voting strength of districts can change because of natural population shifts. Of course, districts can also be intentionally malapportioned to decrease the voting influence of historically marginalized populations.20See, e.g., Shaw v. Reno, 509 U.S. 630 (1993) (rejecting an attempt to create a Black-majority legislative district to ensure the election of at least two Black representatives); United Jewish Orgs of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 161 (1977) (rejecting the proposition that “racial criteria may never be used in redistricting or that they may be used, if at all, only as a specific remedy for past unconstitutional apportionments.”). However generated, malapportionment should be seriously scrutinized because of its impact on the representativeness of the democratic system.21See Dale E. Ho, Captive Constituents: Prison-Based Gerrymandering and the Current Redistricting Cycle, 22 Stan. L. & Pol’y Rev. 355, 359-60 (2011).
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