By Kenneth Donovan

In June 1787, shortly after James Madison introduced his Virginia Plan for a legislature under the new Constitution, the deliberations hit a snag. A question arose as to whether slaves were to be counted for the sake of representation. With southerners advocating their inclusion to some degree the convention delegates settled on a compromise. Three of every five—or as people usually recount it, three-fifths of each enslaved person—would be included in the count for representation.

The effect of the three-fifths clause was to give states like Virginia—and white voters within similar states—a greater share of voting power (Virginia had more slaves than any other state in 1790). Though enslaved people were considered neither citizens nor people, counting them as part of the population inflated the number of seats allotted to slave states in the House of Representatives, as well as the Electoral College. Black bodies were counted for representation, but black voices were not. Thus white voters reaped the benefit of the black population in the currency of political power.

The three-fifths clause has become infamous for the way it enshrined slavery into the structure of American government. Though it was eliminated by the Thirteenth Amendment, which ended slavery in the United States, a version of the three-fifths clause still exists in the form of prison gerrymandering.

The United States Census counts prisoners as residents of the institution where they are imprisoned. The institution becomes their home address. Since prisons tend to be built in rural areas, they add thousands of people to rural population counts that would otherwise be smaller.

This practice has consequences for race and political power throughout the United States. As prisoners’ residence is transferred from urban to rural areas, political representation for rural areas is inflated in state legislatures. And since rural areas tend to be whiter areas, prison gerrymandering inflates the representation of whiter areas by counting the bodies of people of color.

A majority of the people incarcerated in America are black and Latino. In every state except Maine and Vermont, incarcerated people cannot vote. Thus, prison gerrymandering not only inflates whiter areas’ political power, it does so through the inclusion of black and Latino people who have no actual political voice in those districts. The practical effect is similar to the effect of the three-fifths compromise from 1787.

This population redistribution also exacerbates the rural-urban political divide. Urban areas tend to be more heavily liberal while rural areas trend conservative. Giving more weight to rural districts inflates the power of conservative areas in state legislatures. Prison gerrymandering uses the bodies of urban residents to grant more conservative, rural areas greater power with which they can reject legislation and programs aimed at addressing urban issues.

Today’s practice of prison gerrymandering is even more efficient than the three-fifths clause the founders created in 1787. Since the Fourteenth Amendment makes everyone born in the United States a citizen, today’s prisoners are counted as full people—five-fifths, if you will—while they have the voting power of no people.

Despite most Americans’ belief that slavery and its consequences have long become part of history, new iterations of racially repressive practices have continually arisen. Prison gerrymandering, like felony disenfranchisement or the restriction of food assistance to people with felony convictions, is one of many examples of what mass incarceration scholars have termed ‘neo-slavery’ and the ‘new Jim Crow’. Yet these practices are common across the United States.

Last month New Jersey became just the seventh state to outlaw the practice of prison gerrymandering. New Jersey state law now requires prisoners to be counted as residents of the address where they lived before being sent to prison rather than the prison itself.

Democrats in the Virginia legislature have added prohibitions on prison gerrymandering to multiple redistricting bills currently under consideration ahead of the 2020 census. Regardless of which bill ultimately prevails, Virginia must follow through on eliminating a practice that racially distorts power across the state. It is time to end prison gerrymandering and eliminate today’s version of the three-fifths clause.

Kenneth Donovan is a Ph.D. student in American history at Stony Brook University, State University of New York.