New Jersey Takes On Vestige Of Three-Fifths Clause: Prison Gerrymandering

“Every Monday new inmates come in and they’re processed,” says a white corrections officer early in the documentary, “The Farm.” “We’re all guaranteed a job,” she adds, looking at the camera with a smirk. “We have good job security.” She nods as the camera pans back to two rows of shackled men, nearly all of them Black, arriving at Angola prison––formally known as Louisiana State Penitentiary––to begin their sentences, most of them for life. Angola is the notorious maximum-security prison, which, when it was a slave plantation, was named for the country in Africa where many of its slaves were captured. The clear implication is that things haven’t changed all too much since 1865: White people are still exploiting Black bodies, squeezing every dollar they can from them.

This is clear in a range of contexts, many of them in the criminal system. Most obviously, it is apparent in exploitative prison labor and exorbitant fees for basic resources in prisons, but also the fines and fees extorted from people who are shuffled through every level of the criminal system, including the lowest ones. In more subtle ways, too, the bodies of the vulnerable people we incarcerate are used to enrich white people. Another example is prison gerrymandering, which refers to the Census Bureau’s practice of counting incarcerated people as residents of the towns where they are confined, not where they are from and where they will return. According to the Prison Policy Institute, this “creates significant problems for democracy” and “leads to a dramatic distortion of representation at local and state levels, and creates an inaccurate picture of community populations for research and planning purposes.”

It is a policy that has become out of date since it was implemented for the 1790 census. “What has changed is just the massive scale of incarceration in the U.S. What worked for the country in 1790 just doesn’t work anymore in terms of data methodology,” Aleks Kajstura, legal director of the Prison Policy Initiative, told NPR. “Even up until the 1970s, the incarcerated population was low enough that it did not impact redistricting when people were counted in the wrong place.” Kajstura noted that many prisoners are released or moved to another facility after they are counted for the census, so that the “facility that they happen to be incarcerated on Census Day is in no way reflective of the reality of where they actually even live and sleep most of the time even by the Census Bureau’s own guidelines.”

What prison gerrymandering does is further empower rural, white communities, while taking power from diverse, urban ones. The comparison to the infamous three-fifths clause of the Constitution is obvious. During slavery, Southern states bolstered their census numbers—and, consequently, their representation in Congress—using the three-fifths clause, which allowed them to count disenfranchised slaves as three-fifths of a person each. The three-fifths clause virtually ensured that slaves would be represented by pro-slavery representatives in Congress, the way prison gerrymandering ensures that prisoners contribute to the representation of pro-carceral towns that profit off their confinement. It is what one writer has called the “five-fifths clause.”

“A recent study about Pennsylvania’s state legislative districts by Villanova University associate professors highlights the impact this process can have on the political voice of incarcerated people’s home communities,” NPR’s Hansi Lo Wang reported last month. The study “found a ‘substantial likelihood’ that Philadelphia would gain an additional majority-minority district for Pennsylvania’s state House if prisoners incarcerated in the state were counted as residents of their last known addresses.” Instead, according to the study’s authors, Brianna Remster and Rory Kramer, “the incarcerated are not only missing from their communities, they are also advantaging other communities.” The votes of the people in the white, rural prison communities simply have more power than those in the cities where many prisoners come from and will return.

This is a nakedly partisan issue. In 2015, when the Census Bureau was collecting public comments about its rules for counting people in prisons, Thomas Hofeller, the Republican redistricting strategist whose daughter made his files public after his death in 2018—warned against adjusting prisoners’ numbers. “This change is being encouraged by Democratic or Liberal organizations and could involve the Census Bureau in yet another political conflict,” Hofeller wrote. The following year, when the bureau received another round of public comments, over 99 percent of the close to 78,000 comments collected in 2016 “suggested that prisoners should be counted at their home or pre-incarceration address,” according to the bureau. But it has no plans to change its policy for the 2020 count.

“Counting prisoners anywhere other than the facility would be less consistent with the concept of usual residence, since the majority of people in prisons live and sleep most of the time at the prison,” the bureau announced in 2018. But, as the NAACP argued in a lawsuit against the state of Connecticut over prison gerrymandering, by inflating the voting strength of predominantly white districts, it violates the 14th Amendment’s “one person, one vote” principle. And as Daniel Nichanian noted last year in The Appeal: Political Report, “The skew is compounded by the fact that incarcerated people are barred from voting in all but two states, silenced even as their presence bolsters the representation of the areas they are displaced to.”

Since the bureau won’t change its policy, civil rights groups and other advocates have had to pressure states one by one to change how they redraw state and local voting districts by advancing legislation and fighting in court. Last May, Nevada and Washington joined California, Delaware, Maryland, and New York in passing laws that require relocating prisoners’ numbers from their place of incarceration to their last known home addresses for redistricting.

Last week, New Jersey lawmakers also voted to ban prison gerrymandering. Proponents of the new law cited a report from the Sentencing Project that found that New Jersey had the worst Black-white disparity among its incarcerated population. “Since New Jersey has the worst racial disparities in incarceration rates in the country, upholding prison-based gerrymandering essentially strips our communities of color of their full voting strength,” said Helen Kioukis, program associate with the League of Women Voters of New Jersey.

Wang reports from Waupun, a rural, largely white town about an hour and a half drive northwest of Milwaukee, where approximately 1 in 4 people are incarcerated. The 3,000 people imprisoned in Waupun cannot vote but make up the majorities in two of the town’s voting districts represented by alderpeople on the town’s common council. The alderpeople, who are supposed to rely on “input from residents” to “ensure a citizen-centered process,” said that they have never visited the prisons. “There’s no reason to communicate on property I don’t have access to,” said Alderperson Ryan Mielke, who was re-elected last year with 43 votes. About 61 percent of his constituents are incarcerated and cannot vote. But a spokesperson for Wisconsin Department of Corrections told NPR that elected officials are welcome to visit the facilities. “We have state senators and representatives come through a number of our institutions pretty regularly.”

The most productive solution would be to allow prisoners and formerly incarcerated people to vote, but until that happens, the least we can do is stop giving their voting power to the towns that profit from their imprisonment. One person serving time in Waupun, Robert Alexander––who had been living in Milwaukee before his incarceration––said he didn’t know who was supposed to represent him. “There’s no way that he can say what we feel unless he decides to come in and talk to us,” he said. “You don’t feel like a resident of anything,” he added. “It’s almost like your body being used.”