What is prison gerrymandering and how does it impact elections? Criminologist John Pfaff explains

Photo: RUTH FREMSON, STF Counting prisoners has long presented a problem when it comes to...

In some states, felons can't vote even after serving time. But in most states, they can't vote while they're still in prison - even though the government counts them as living there when it comes to drawing district lines.

John Pfaff, a Fordham Law School professor who studies mass incarceration, spoke to the Chronicle recently about the phenomenon known as "prison gerrymandering" and how it impacts districting and representation. According to the Prison Policy Initiative, nearly 2 million people are counted as living somewhere other than their home district, effectively shifting political power to the districts that house prisons.

Houston Chronicle: Primaries are upon us here in Texas - and one of the things you have written and tweeted about is prison gerrymandering. Can you tell me a little bit about what that is and why we should care?

John Pfaff: So, the Census has a challenge when it comes to prisoners. There's two possibilities: They live inside the prison or in the last known address before prison. All but four states currently choose to count them in the prison. What makes that worse is outside of two of those 46 states they can't vote. They count as living in that district and they can't vote at all.

Given the nature of crime and punishment in the United States, what it's effectively doing is moving black and brown people from urban areas and to more rural areas which tend to be more conservative, so it has a very clear partisan slant to it.

HC: And are there states that it's a bigger or smaller problem in?

JP: It's more about districts - the smaller the district the more imposing the problem. The famous example is in Iowa where one city council district had a state prison in it. While most districts required a few thousand votes to win, this district only required a couple votes because most of the district couldn't vote. So I would imagine someplace like Texas where you have a lot of small counties, that prison could be a pretty big chunk of a state representative's district.

HC: Has this always been the case - or has this not always been an issue?

JP: I think partly it wasn't an issue because there just weren't that many prisoners. In 1972 the impact of the gerrymandering just wasn't that large.

HC: So why doesn't this get changed - and why doesn't it get more attention?

JP: I think the average person is completely unaware of this because when I talk about it everyone kind of looks completely horrified. But it is very technical, where is the Census counted. That's not something at a cocktail party that gets someone really excited to keep talking to you. But it's incredibly important.

Oftentimes the things that drive mass incarceration the most are these incredibly technocratic issues that aren't really exciting to talk about but they have an incredibly important impact.

HC: When you tweeted about this a few weeks ago, you wrote that you were shocked that "we are so blasé about a five-fifths compromise." Can you explain what you mean by that?

JP: The Constitution's original three-fifths compromise was that, for the purpose of representation in the House of Representatives, slaves counted as three-fifths a person. The South obviously wanted it to count as five-fifths because that would give them even more representative power by people who weren't allowed to vote and the northern states wanted it counted as zero-fifths. The compromise was that each slave counted as three-fifths of a person who couldn't vote.

Prison gerrymandering is arguably worse because people in prison - like the slaves - can't vote but they count as an entire person. So they have even more electoral weight with the same lack of voice. And I used a five-fifths compromise on purpose because there's a clear racial component to this.

HC: Is there any way to quantify this impact? Could it have swayed the last presidential election?

JP: It'll have no impact on the presidential election because presidential election just cares about state-level population and not where in the state you live. So the inability of prisoners to vote might matter but figuring where in New York state or where in Oklahoma you live for the Census wouldn't affect Oklahoma's presidential returns, just like it won't affect governor races or U.S. senator races.

With local legislators, it gets trickier. New York State is one of the few states that doesn't do the gerrymander, we abolished it starting with the 2010 Census and it's probably moved one or two senate seats from the Republicans back to the Democrats. I think its overall impact isn't that great but when the margins are narrow it can matter. But also if you're a politician why take that risk?Why pass a bill that no one's really asking for that puts your majority in some sort of jeopardy?

HC: So it sounds like the states can act - but can the federal government fix this, in theory?

JP: People have been petitioning for several years now to have the Census change its rules. The reason why states do this is the Census' default rule is to count the person living in the prison for the purposes of the Census enumeration. I think if the Census came along and said they would change the rule, I think most if not all states would follow suit.

I would be very, very surprised if a Republican administration would adopt a rule that's going to clearly weaken Republican returns at state and local races.

HC: Any closing thoughts I should mention here?

JP: I think it's one of those things where it might be possible to overstate its actual impact on representation. It's not going to move dozens and dozens of seats but its clear impact is it's one of those subtle but important barriers to criminal justice reform.