By Michael Abrams

Legal and Public Policy Intern, ACLU of Maryland

The abysmal nationwide gerrymandering situation in the United States just got worse. In late June, the U.S. Census Bureau released its rules proposal for the 2020 Census. Unfortunately, the new proposal ignores overwhelming public demand for an end to "prison-based gerrymandering." Prison-based gerrymandering allows officials to count incarcerated persons as "residents" of the districts where they are imprisoned, though they are not allowed to actually vote while in prison. This concentrates a population that is disproportionately male, urban, and African American or Latino into Census blocks that are located far from their actual homes. 

By designating a prison cell as a residence, the Census Bureau ensures that unfairness will define the redistricting process. "Some state legislative districts draw large portions of their political clout, not from actual residents, but from the presence of a large prison in the district," writes the advocacy group Prisoners of the Census." In this way, the proposed Census Bureau rules would allow rural jurisdictions to artificially bolster their demographics while shortchanging urban areas of the political empowerment due to them. These outdated and inaccurate "Residence Rules" effectively game the numbers, undermining racial fairness in elections and the spirit of the Voting Rights Act.

Moreover, the Census Bureau's proposal ignores the temporary nature of prison sentences. Each year, approximately 636,000 inmates leave prison and rejoin their communities. Ninety-five percent of State prisoners will eventually return to their homes. Further, incarcerated persons are regularly transferred between different correctional facilities during their stay, sometimes even across state lines. Nearly all incarcerated persons will be home soon enough, and the US Census Bureau needs to acknowledge that a prison cell is not a residence.

Our experience with this issue in Maryland is a testament to the detrimental effect that the Census Bureau's proposed rule could have. Somerset County, on Maryland's Eastern Shore, has long been one of the state's most racially-divided communities. At the time of the last U.S. Census, Somerset County was 42 percent Black. Yet, despite Somerset's demographic diversity, Blacks have been historically left unrepresented in County government. Indeed, until 2010, no Black person had ever been elected or appointed- in all of the County's 350-year history-to any top County office. The situation persisted even though the historically Black University of Maryland, Eastern Shore ("UMES"), located within the county, graduates many candidates qualified for government jobs and offices.

In 2008 and 2009, the local NAACP and ACLU-MD realized that part of the reason Black residents had remained shut out of Somerset government for so long was prison-based gerrymandering. Because the County is rural and relatively sparsely populated, the Census Bureau's inclusion of the large prison population temporarily at Eastern Correctional Institution severely undermined the racial fairness of the local election system. 

Together, the NAACP and ACLU partnered with community leaders to challenge this system. We advocated with local Somerset officials, the Maryland Attorney General, and the General Assembly for exclusion of prison populations from the redistricting database. Eventually, the Maryland legislature became the first in the nation to adopt a law mandating that prisoners be counted at their place of last residence, rather than their place of incarceration. This simple change paved the way for greater participation by minorities in Somerset County's local government. In fact, the County's first black County Commissioner, Rev. Craig Mathies, was elected shortly after the law was enacted.

The Census Bureau should learn from this Maryland example, and make one small but highly significant change that will result in fairer elections nationwide.

There was a big opportunity for change when, last year, the Census Bureau invited public feedback on the Residence Rules. Fully 96 percent of those comments, including from the ACLU, advocated changing the rules to substitute home addresses for prison addresses. The newly released 2020 Residence Rules show the Census Bureau is ignoring this unified objection and instead is injecting systemic racial bias into the districting process. 

The fallout from Census rules goes beyond calculating representative distribution. The Census provides valuable population statistics for a sweeping array of research and planning projects. The Residence Rules' inaccurate treatment of prisoners distorts our understanding of many regions' growth, income distribution, and race and gender demographics. This contributes to worsening inequality in community planning and development. 

Thanks to the NAACP and the ACLU-MD, prison-based gerrymandering is no longer corrupting Maryland elections. But individual state workarounds on an ad hoc basis won't be enough to stem the consequences of the Residence Rules. In the age of mass incarceration, with the U.S. locking up more individuals than any other country in the world, the Census Bureau needs updated rules which recognize, value, and politically empower the communities where those are incarcerated come from and will return to.

Comments on the 2020 Census Proposed Rules can be submitted to by September 1st.