Brett Blank is a law student and a law clerk at the Prison Policy Initiative.
There once was a time when in the state of New Hampshire, wealth bought votes. It wasn't illicit or even unusual. In fact it was the law of the state. The amount of power each Senate district had was directly proportional to its taxes paid. This method of redistricting was struck down in Reynolds v. Sims less than 45 years ago.
New Hampshire was not alone. Other states had fundamentally unfair apportionment schemes. For example, Alabama gave every county the same number of state senators. As a result, sparsely populated Lowndes County had the same number of state senators as densely populated Jefferson County. This too was struck down by Reynolds v. Sims.
In that case, the Court declared its now-famous "one person, one vote" principle, holding that the Constitution prohibits redistricting plans giving voters in one area power beyond their numbers. The Court explicitly held that "legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests."
In other words, apportionment plans must be based on population and where voters reside should not affect the power of their vote. As a result, an industry or other economic interest can only exert political influence in proportion to the number of people that support it. The Reynolds case intended to permanently the settle the question of whether other interests besides population can be the basis of representative democracy.
Except it didn't.
The Census Bureau counts people in prison where their bodies are located on census day, not where they come from and where they will return, on average, 34 months later. Forty-eight states bar prisoners from voting, and most states have constitutional clauses or election law statutes which explicitly declare that prisoner remains legal residents of their home addresses. When states draw districts based on the Census Bureau's padded counts of prison locales, they give those districts extra representation just because the prison industry has a facility there.
Where prisoners are counted matters not only in big-prison states like Texas, it matters everywhere. New Hampshire has one of the lowest incarceration rates in the nation, yet relying on the prisoner miscount to draw districts creates a serious vote dilution problem. Of the 12,594 people in the district containing the New Hampshire State Prison, 11 percent are incarcerated. As a result, every group of 89 residents in this prison district has the same political power as 100 residents elsewhere in the state.
When the Reynolds Court required legislatures to apportion political power on the basis of population they could not have foreseen that a glitch in Census Bureau methodology would later undermine their groundbreaking decision. Prisons are the only industry that has its raw material counted in the decennial census. For example, tourists are counted at their home addresses, and Detroit receives no additional boost from the automobile industry's unsold inventory.
The intent of Reynolds was to ensure that industries could not exert political influence. To do so, the Court crafted a rule stating that political power must be distributed equally on the basis of population. The Court could not have foreseen that two million people associated with one particular industry would be counted at the wrong location.
To fulfill the promise of representative democracy embodied in Reynolds, the Census Bureau and the state legislatures should develop a plan to count prisoners properly. There is no excuse that people who are easy to count by virtue of their confinement should present such difficulty.