The Yale Law Journal

March 2021

Prison Malapportionment: Forging a New Path for State Courts

Election Law

abstract. With the 2021 redistricting cycle coming in the wake of the 2020 census, the time is ripe for reformers to tackle prison malapportionment. Prison malapportionment occurs when incarcerated individuals are counted as residents of the jurisdictions where they are incarcerated—rather than where their pre-incarceration homes are located—for purposes of redistricting. This practice thus shifts representational power from the home communities of incarcerated people to the towns where they are imprisoned. Because prisons are largely located in rural towns and communities of color are disproportionately incarcerated, prison malapportionment also results in substantial racially disparate effects. The practice offends the fundamental principle of equal representation and inflicts tangible harm upon incarcerated individuals and the communities they call home.Current scholarship addressing prison malapportionment, however, fails to engage comprehensively with state-law claims. In this Comment, I argue that state law provides a remedy for prison malapportionment that has, until now, gone largely unappreciated.By leveraging states’ statutory provisions defining residency and constitutional equal-population provisions, state-court prison-malapportionment litigation can provide a viable path forward even as federal avenues continue to develop.

author. Yale Law School, J.D. 2020. I am deeply grateful to Douglas Spencer for his guidance and feedback. My heartfelt thanks to my clinical team members and supervisors for inspiring this project. I am indebted to Alex Boudreau and the Yale Law Journal editors, particularly Timur Akman-Duffy, for their assistance and careful edits. Finally, thanks to Briana Clark, Anas Al-Sabbagh, and Willie Abrams for their constant support. All errors and omissions are my own.


“The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law—for without it, the full realization of our liberties cannot be guaranteed.”

- William J. Brennan, Jr.1

Just weeks after the Supreme Court in Rucho closed the federal courthouse doors to partisan-gerrymandering claims,2 the North Carolina state courts rose to the occasion. In a 357-page opinion, a North Carolina court did what the Supreme Court could not, invalidating the state’s legislative maps on illegal partisan-gerrymandering grounds.3 This determination rested on the North Carolina State Constitution, reflecting a new judicial federalism,4 and may encourage partisan-gerrymandering reformers to turn to the state courts after the 2020 census and 2021 redistricting cycle. As this litigation surges in state courts, the time is ripe for states to tackle other pressing redistricting issues, including prison malapportionment—commonly known as “prison gerrymandering.”5

For purposes of redistricting, most states count incarcerated individuals as residents of the jurisdictions where they are incarcerated, rather than where their pre-incarceration homes are located. Since political districts are drawn based on population, districts with prisons—rather than the home districts of incarcerated individuals—benefit from the population bump. This practice thus shifts representational power from the home communities of incarcerated people to the towns where they are imprisoned. The final result is a malapportioned map with artificially inflated representation for prison districts.

The effects of prison malapportionment are especially pronounced in this era of mass incarceration.6 To accommodate the modern explosive growth in prison populations, thousands of prisons were built. Between 1990 and 2005, on average, a new prison was constructed in America every ten days.7 And this boom was geographically skewed. During the peak years of prison building between 1992 and 1994, nearly sixty percent of new prisons were built in rural areas despite the fact that such rural towns accounted for only twenty percent of the population.8 As a result, many rural counties in America experienced a shift from population loss in the 1980s to population gain in the 1990s.9 This growth in population in rural prison towns is largely the result of relocated incarcerated populations, which disproportionately consisted of Black and Latinx people from urban communities.10

Thus, this period led to a shift in political power around the country: power was systematically transferred from racial minorities and urban centers to predominantly white, rural prison towns. For example, after the 2000 census, incarcerated individuals made up one-third of the population in one district in Jones County, Iowa.11 In Clay County, Kentucky, individuals incarcerated in two correctional institutions accounted for nearly half of the population in one district.12 And in Georgia, nine state house districts derived over five percent of their population from individuals in prisons.13

Many academics and practitioners have argued that this practice constitutes a violation of the Federal Equal Protection Clause’s one-person, one-vote principle. These malapportionment challenges are just budding in federal courts, where they have been met with mixed success. The first state-court challenge to the practice was also recently filed,14 and similar challenges will likely be brought as state courts become increasingly central to the vindication of electoral rights, especially in the wake of Rucho.

But despite the promise of state courts, current scholarship addressing prison malapportionment fails to comprehensively engage with state-law claims.15 In this Comment, I argue that state constitutions and statutes provide a remedy for prison malapportionment that has, until now, gone largely unappreciated. Specifically, laws in forty-six states stipulate that residency is determined by the intent of the individual.Because incarceration involves the involuntary removal from one’s home, state law generally presumes that one’s pre-incarceration address fixes residency unless an individual affirmatively attests otherwise. This simple fact has enormous implications for prison malapportionment, and reformers should leverage these state-residency laws in addition to the common state-constitutional requirement that legislative districts are to be of equal populations.

This Comment thus proposes a path forward for challenging prison malapportionment in state courts. Part I considers the concept of prison malapportionment, its legal and analytical entailments, and the effects of the practice. Part II explains federal-law theories that have been used in litigation to date. Part III then evaluates the possibility of challenging prison malapportionment under state law. These state-law claims make use of statutory provisions defining residency and constitutional equal-population provisions and suggest that state-court prison-malapportionment litigation is one viable path forward.