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Introduction
States redistrict their legislative and congressional districts once every 10 years using data from the decennial census conducted by the U.S. Census Bureau.
The bureau’s longstanding practice is to count persons incarcerated in state and federal correctional facilities as residents of the district where they are confined. By far the majority of states use the population and residence data reported in the census, as is.
A handful of states have changed their procedures for allocating incarcerated persons for redistricting purposes. In these states, when possible, they reallocate prisoners from the prison location to their residence prior to incarceration.
The rationale behind this policy is that including incarcerated persons in the population count for the district in which their facility is located alters representational proportions and, as a result, the voting power of residents. Without reallocation, the total population of prison districts will contain fewer eligible voters (because prisoners can’t vote in most states), and thus the elected representatives for those districts represent fewer voters than their colleagues in parts of the state whose districts don’t contain prisons.
Implementing reallocation for incarcerated persons often requires a significant amount of work and collaboration between agencies and authorities at the state and local level. For all affected incarcerated persons, accurate information on their residences immediately prior to their incarceration must be collected and recorded for later use by the appropriate redistricting authorities. The state’s census blocks as reported by the U.S. Census Bureau must also be updated based on this new data in order to reflect the correct populations pursuant to the state’s new apportionment procedures.
To date, eight states have passed laws modifying how incarcerated persons are counted and allocated during the redistricting process. States vary in their reallocation treatment of state and federal inmates and in their specific procedures for identifying and reporting incarcerated persons’ last known residences for redistricting purposes.
The table below provides a list of states that have passed laws modifying their redistricting procedures for incarcerated persons. It includes statute citations, the years enacted and implemented, whether the policy affect only legislative or congressional districts or both, and the specific treatment of both state and federal inmates.
| Reallocation Statutes |
Year Enacted |
Year Implemented |
Legislative, Congressional, or Both |
State Inmates |
Federal Inmates |
|
California
Cal. Elec. Code § 21003
|
2012 |
2020 |
Both |
If in-state resident prior to incarceration: counted in last known residence’s district population
If out-of-state resident prior to incarceration, or unknown: excluded from all district populations
|
Excluded from all district populations |
|
Colorado
House Bill 20-1010 (to be added to CRS § 2-2-901 and 2-2-902)
|
2020 |
2020 |
Both |
If in-state resident prior to incarceration: counted in last known residentce's district population
If out-of-state resident prior to incarceration, or unknown: the prisoners are counted for purposes of redistricting in the correctional facility.
|
Not addressed |
|
Delaware
29 Del. Code tit. 29, § 804A |
2010 |
2020 |
Legislative (only 1 congressional district) |
If in-state resident prior to incarceration: counted in last known residence’s district population
If out-of-state resident prior to incarceration, or unknown: excluded from all district populations
|
If in-state resident prior to incarceration: counted in last known residence’s district population
If out-of-state resident prior to incarceration, or unknown: excluded from all district
|
|
Maryland
MD State Gov’t Art. § 2-2A-01 (legislative)
MD Elec. Law Art. § 8-701 (congressional)
|
2010 |
2010 |
Both |
If in-state resident prior to incarceration: counted in last known residence’s district population
If out-of-state resident prior to incarceration, or unknown: excluded from all district populations
|
If in-state resident prior to incarceration: counted in last known residence’s district population
If out-of-state resident prior to incarceration, or unknown: excluded from all district populations
|
|
Nevada
Ass. Bill No. 450 (to be added to Nev. Rev. Stat. § 360)
|
2019 |
2020 |
Both |
If in-state resident prior to incarceration: counted in last known residence’s district population
If out-of-state resident prior to incarceration, or unknown: Not Addressed
|
Not Addressed |
|
New Jersey
S 758 (to be added to N.J.S.A.)
|
2020 |
2020 |
Legislative |
If in-state resident prior to incarceration: counted in last known residence's district population
If out-of-state resident prior to incarceration, or unknown: excluded from all district populations
|
If in-state resident prior to incarceration: counted in last known residence's district population
If out-of-state resident prior to incarceration, or unknown: excluded from all district populations
|
|
New York
N.Y. Legis. Law § 83-m(13)
|
2010 |
2010 |
Legislative |
If in-state resident prior to incarceration: counted in last known residence’s district population
If out-of-state resident prior to incarceration, or unknown: excluded from all district populations
|
Excluded from all district populations |
|
Virginia
VA H 1255 (to be added to Va. Code. Ann. 24.2).
|
2020 |
2020 |
Both |
|
|
|
Washington
WA S.B. 5287 (to be added to Wash. Rev. Code § 44.05)
|
2019 |
2020 |
Both |
If in-state resident prior to incarceration: counted in last known residence’s district population
If out-of-state resident prior to incarceration, or unknown: excluded from all district populations
** Also applies to incarcerated juveniles and involuntarily committed behavioral health patients **
|
Not Addressed |
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