ICYMI: Prison gerrymandering could impact Indian Country voters

Six months ago, lawmakers and policy experts in Montana were contemplating a legislative proposal for the forthcoming session to end what’s known as prison gerrymandering — a political consequence of a longstanding U.S. Census Bureau practice that counts incarcerated people as residents of the prison or jails that confine them, rather than of the places where they lived before getting locked up.

The timing was apt: 2020 was a census year, and as such, a state panel tasked with drawing congressional and legislative districts in part based on population figures from the census was set to begin its decennial task in the summer. The proposal, as described in the Missoulian, would have directed Montana’s Districting and Apportionment Commission to follow existing state statute that says an individual’s residence doesn’t change while they’re “kept involuntarily at any public institution.”

This was and is of special import to indigenous people in Montana, who make up a disproportionate share of the prison population, have historically been undercounted in the census Census and struggle as is for better political representation at the local, state and federal levels. Since people imprisoned in Montana and most other states can’t vote — and since, for the most part, people in prison are not permanent residents of the surrounding area — residents of the district get extra political power, while those in the carceral system are isolated from political decision-making in their home towns, which see their population-derived political power diluted.

But in the breakneck first session of a new governor and new political agenda in Helena, the bill didn’t get off the ground. Some argued that the legislature’s power over the state redistricting commission was limited — though this didn’t stop a bill passed later in the session directing the Districting and Apportionment Commission to consider certain mandatory criteria for drawing maps, said Keaton Sunchild, political director with the Billings-based Western Native Voice.

“I think they just kind of pick and choose,” said Sunchild. “For some people, the thought of having accurate districts in Indian Country poses a threat to their re-election.’ 

Now, a half-year and a legislative session later, Montana is not among the 11 states to have addressed prison gerrymandering through legislation — Connecticut became the most recent just weeks ago.

But the issue is as, if not more important, now than ever: collecting census data in rural areas like tribal reservations already is difficult, and the pandemic has only heightened fears about a dramatic undercount of indigenous people in Montana and other states. This, compounded with the ongoing Census practice of counting incarcerated people as residents of their prisons, could seriously dilute tribal political representation in Montana, advocates warn.

“We expect a major undercount of Native people,” Dawn Gray, general counsel for the Blackfeet Nation, told the Districting and Apportionment Commission in May. “It is crucial that this commission take action to mitigate this undercount by fairly counting all Montana residents based on their homes.”

That the issue is a priority for Montana’s tribes was clear at the commission’s first meeting. And it’s a fix that has bipartisan support. Chris Shipp, a member of the state GOP’s Redistricting Committee from Yellowstone County, said Thursday that the committee strongly supports reallocation of prisoners to their last home address.

But even with the years-long redistricting process — the commission doesn’t need to submit legislative maps until 2022 — reallocating people incarcerated in Montana’s prisons and other secure facilities poses a time-consuming and costly data collection challenge, as the prison system keeps inconsistent data on the last known addresses of its charges .

“I’m not sure we’ll be able to get that information for the congressional districts, and I don’t know if even we’ll be able to get it (in time) for the legislative districts,” said Maylinn Smith, a tribal law expert and civil prosecutor for the Confederated Salish and Kootenai Tribes who was appointed by the state Supreme Court to chair the state’s redistricting panel. 

A long history

The Census has counted incarcerated people as residents of their prisons since the first survey in 1790. But the political quandary of prison gerrymandering didn’t come to the fore until one-person-one-vote litigation in the 1960s gave rise to the modern redistricting system and mass incarceration ballooned in the 1980s, said Ginger Jackson-Gleich, policy counsel at the Prison Policy Initiative.

Whether you’re awaiting trial, only imprisoned for a few months, or stuck for years, so long as you’re on the inside on the day of the count, the Census treats you the same: a presumed permanent resident of a prison town, Jackson-Gleich said.

This is because the Census counts people at the residence that they “live and sleep most of the time,”  but doesn’t reflect the reality that not everyone incarcerated spends more than half a year living and sleeping in prison or jail. It also seems out of alignment with the Census’ practice of counting boarding school students and military personnel deployed — though not stationed — overseas at their home addresses.

“The Census Bureau has historically counted boarding school students at their parental home, and will continue doing so because of the students’ age and dependency on their parents, and the likelihood that they will return to their parents’ residence when they are not attending their boarding school,” the agency said in a response to comments on a 2018 rulemaking on procedures for the next count.

Applying the opposite philosophy for people detained in prisons and jails “gives disproportionate political power to residents of districts that hold prisons and jails, and reduces the political power of the communities where the incarcerated people formerly lived,” Jacqueline De Léon, a staff attorney with the Native American Rights Fund and an enrolled member of the Isleta Pueblo, told the redistricting commission in May. “The incarcerated people are typically not able to vote while they are imprisoned, meaning that other residents of a district where a 1,000-person prison is located might be one of six thousand voters, instead of one of seven thousand.”

These prison districts are generally whiter and more rural than a state’s general population. In most states, however, the people in prisons come from more urban and diverse areas. This creates an incongruence of political interests, especially if a large number of people in a prison come from the same place or background, and a shift in political geography.

Take a recent study in Philadelphia, for example, published in 2019 in the Du Bois Review. It used counterfactual analysis to estimate that if incarcerated people in Pennsylvania were assigned to their last home address, the city of Philadelphia could gain at least one additional majority-minority state legislative district.

“You see that transfer of power from urban to rural power generally,” said Jackson-Gleich. “Often it’s a transfer of power from more diverse communities to white communities.”

A separate can of worms

Montana, like many other states, disproportionately imprisons Black people at a rate of 3,601 per 100,000 in 2010 according to a Prison Policy Initiative analysis of Census data. But without a large, concentrated Black population, the effects of prison gerrymandering in the state are most acute among indigenous communities.

“In the same way that Black communities are often disproportionately imprisoned, Native Americans communities are also — in Montana and in a lot of other states, although Montana’s rates are particularly shocking,” said Chloe Cotton, a Berkeley Law Foundation Public Interest fellow at the Native American Rights Fund.

According to the state Department of Corrections’ 2021 biennial report, around 2,750 people in secure facilities in the state are indigenous. That works out to 18 percent, even as Native Americans only make up about 7 percent of the state’s population as a whole.

“On its own, that statistic is troubling for Native Americans in Montana,” said Shelly Fyant, chairwoman of the Confederated Salish and Kootenani Tribes and council-member for the Arlee district. “While viewed in the context of what this commission is undertaking, it’s clear that there’s no community in Montana more impacted by prison gerrymandering than Native Americans, and no Native American community is more impacted than the CSKT.

“Unlike other reservations, since the early 1960s, Federal Public Law 280 has vested felony criminal jurisdiction on the Flathead Reservation with the state of Montana,” Fyant continued in her May testimony to the DAC. “The result is a significantly higher number of Native American prisoners coming from the Flathead reservation.”

De Léon estimated that around 1,200 Native Americans in Montana are imprisoned and counted away from their home districts.

That’s 1,200 people who might not have representatives with the same shared experience and awareness, said Sunchild.

“How these lines are drawn are gonna be the singular most important thing to how legislation is handled toward Indian Country,” he said. “When you’re drawing lines in a way where candidates don’t have to take into consideration the culture, the hardships — it sends the wrong message to Indian Country.”

Montana’s large number of legislative districts — 150 — for its small population means that the redistricting process is especially sensitive to phenomena like prison gerrymandering. The Prison Policy Initiative estimated in 2010 that as many as four districts established after the 2000 cycle wouldn’t meet constitutional population deviation requirements if the prison population weren’t counted. 

The classic example of this in the state is the district now known as HD-78, which contains parts of Deer Lodge and Powell Counties and more secure facilities than any other district, including the state prison in Deer Lodge. For decades, districts drawn around this region have benefitted from the sizable prison population.

After 2000, then-House District 85 had an incarcerated population of 15 percent — higher than any other state legislative district in the country at that time — while the state prison comprised almost 20 percent of Powell County’s population as a whole. A whopping 81 percent of the district’s Native American residents were incarcerated.

As of the 2010 census, that number had dropped somewhat, but was still significant: more than half of HD-78’s indigenous population is in prison, Jackson-Gleich said. That cycle, around 17 percent of Powell County was imprisoned, meaning that 83 voters in the county had the same political power as 100 voters in a non-prison county, she added.

The district’s current representative in the house is Rep. Greg Frazer, a Republican from Deer Lodge who’s worked as a corrections officer and mental health technician at the state prison.

He said the concept of prison gerrymandering was new to him as he began his legislative tenure this year, but that he’s since done some research and spoken to people in the prison about it.

“All of the inmates I spoke to said they would rather be represented by the person in the district they’re currently living in,” he said.

The policies he pushes are influenced by his experience working in the prison, and he said he has “good intentions” to represent even those who can’t vote for him. And as far as disparate political power, Frazer said he doesn’t see that coming into play in Helena as much as people might think.

“In the end, my vote still carries the same exact weight as the person who sits to my left or right,” he said.

Appetite for change

Montana’s redistricting process has a long history of litigation related to Native American representation, and prison gerrymandering is just one small part of a major priority for the tribes this redistricting cycle.

“Native Americans in Montana face a number of barriers  — redistricting is one part of it, but it’s kind of a base part,” said Cotton.

This cycle shows promise for being one where the commission might address prison gerrymandering specifically. After its first meeting, the Districting and Apportionment Commission asked its staff to find out what it could about address data in the prison system, and the results weren’t exactly promising.

“The cost is quite pricey to try and gather that data because right now DOC is not collecting that data as far as where they’re originating from,” said Smith on June 10. “Once we’re getting that, to reallocate them to their residency before incarceration would be about one-third of our budget.”

Some prisons make note of the last known address as part of the intake process, but not all. And federal prisons, albeit a small slice of the prison population, are extremely reluctant to share any such data, Jackson-Gleich said.

“Every state’s that’s gone through this — there’s a missing street address, zip code is wrong, someone is homeless,” she said.

Rachel Weiss, a research analyst for the DAC, said Thursday that less than half of those in DOC housing units as of April 1 had residential addresses listed in the department’s system.

Smith said it’s less about the budget and more about time and data quality, especially given a limited number of vendors who could do the data work necessary to match incarcerated people with their last addresses.

“The real issue that I see is the reliability of the data that we get,” she said. “But I do think we need to be teeing this up for next round.”