The Ghost Vote: Prison Gerrymandering in Florida

On March 9, the American Civil Liberties Union (ACLU) filed a federal lawsuit charging the election system of Jefferson County, Florida with violating the Fourteenth Amendment by counting the inmate population of a state prison when drawing county district maps. The lawsuit specifically accused the Jefferson County electoral system of “prison gerrymandering,” which occurs when state and local governments count incarcerated populations as residents of the area where their prisons are located when drawing voting district boundaries.

Prison gerrymandering has been a long-contested affront to fair voting practices across the country — in Rhode Island, for example, the House Judiciary Committee is currently considering an act that would ensure that prison populations are counted in their actual area of residence rather than the area of their incarceration for voting distribution purposes. The Constitution requires elected legislators to draw voting electoral districts in the interests of democracy: The Fourteenth Amendment specifically stipulates that voting districts must be represented in proportion to the number of voters therein, called the “one person, one vote” standard. In order to ensure a democratic voting process, the Constitution mandates that electoral districts must be drawn in accordance with the voting population of a given area. Gerrymandering is patently undemocratic: It is the manipulation of census data to misrepresent the will of the people. It gives the votes of certain populations undue weight while obscuring the votes of other populations. Historically, the obscured votes have often been those of minority populations.

Counting prisoners in census data used to draw electoral divisions has been contested ever since the prison boom of the 1980s and 1990s, when increased prison populations started to drastically affect census data. “Because of the enormous prison population relative to the total size of Jefferson County, every four actual residents of District 3 have as much political influence in county and school elections as seven voters in the county’s other four districts.” said ACLU Florida Legal Director Nancy Abudu. Jefferson County has a total of five electoral districts responsible for electing county officials and school board members. District 3 counts the 1,157 inmates of the Jefferson Correctional Institution (JCI) as part of its population—JCI prisoners make up 43.2 percent of the district’s voting age population, according to the ACLU’s lawsuit. However, Florida law removes citizens’ right to vote upon a felony conviction, meaning that none of the inmates are allowed to vote in the county elections even though they’re considered part of the area’s population when electoral divisions are drawn. The non-incarcerated residents of District 3 therefore have greater political influence relative to the residents of Jefferson County’s other four voting districts.

In 1954, Chief Justice Earl Warren introduced the phrase “one person, one vote” in his Raynolds vs. Sims decision, writing, “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.” Warren contended that the conception of political equality from the Declaration of Independence to Lincoln’s Gettysburg Address to the Fifteenth, Seventeenth and Nineteenth Amendments can mean only one thing — one person, one vote. Congressional districts within a given state are only allowed to deviate from each other by 1 percent of the population — any further deviation would be unconstitutional — while state and local legislative districts may deviate slightly more, depending on the laws of individual states. Colorado, for example, limits deviation from the “ideal” district population to no more and no less than 5 percent. The relative populations of voting districts are regulated in order to prevent any one district from having greater voting influence than any other district. Counting prisoners in electoral districts, however, artificially inflates the voting population. Sure, there are about 3,000 voting-age adults in District 3 of Jefferson County, but 1,157 are not allowed to vote — come elections, the prisoners are phantom constituents, part of the district but absent from voting booths.

Because minorities make up almost 40 percent of America’s prison population, counting inmates as residents of the area in which they are incarcerated ultimately serves to disenfranchise the state’s minority populations. In New York, well-documented practices of prison gerrymandering historically counted majority-minority prison populations as part of majority-white, rural voting districts; this means that the prisoners’ home districts — often poor and urban — lost voting power, while rural voting districts where the prisons were housed gained artificial voting influence when their populations were increased by the incoming prisoners. The Jefferson County lawsuit also lists “unfairly diluted minority voting strength” that “created an unfair advantage for white voters” as one of the plaintiff’s complaints against the county.

Alongside “one person, one vote,” electoral systems must attempt to preserve “communities of interest” when drawing voting district lines. The minority communities of Florida have been historically disenfranchised through the creation of voting districts — five Florida counties were “covered counties” — meaning that they had to submit their voting distributions for federal clearance to ensure that the voting districts were not drawn to disenfranchise minority voters — before the coverage formula of the Voting Rights Act was struck down in 2013. About 60 percent of Jefferson County’s population is white, while approximately 70 percent of the JCI’s inmate population is black or Hispanic. Many of the inmates have been imprisoned away from their home communities — the JCI is about 40 miles east of Tallahassee, and many inmates come from the city. It’s possible that, as was the case in New York, the home communities of the prisoners suffer adversely from the population loss when incarcerated former residents are counted as current residents of their prison’s district in the state census.

The relationship between minority disenfranchisement and incarceration in Florida goes beyond prison gerrymandering. One in five black adults in Florida have been incarcerated at some point in their lives. Thus, because of Florida’s voting laws (referenced above), which prohibit current and former felons from voting even after completing their parole, one in five black adults in Florida cannot vote. The voting restrictions in Florida turn prisoners into ghost constituents permanently. It could be argued that counting former felons in any voting district is a form of artificially inflating that district’s voting influence. Still, counting felons in their home districts would better serve to represent the communities of interest that they belonged to during their civilian lives than counting them as part of the communities they have been relocated to as prisoners.