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Press release/statement

Virginia Ends Mandatory Prison Gerrymandering

Governor signs HB1339, changes law that required some counties to dilute the votes of county residents who did not live adjacent to a prison

Virginia Governor Bob McDonnell on Monday signed HB 1339, which ends a state requirement that forced some local governments to engage in prison gerrymandering.The new law lifts limitations on which counties, cities and municipalities could exclude incarcerated populations for redistricting purposes. Rural counties that host prisons find that relying on the Census Bureau’s counts to draw districts can result in a single prison being the majority of a district, even though the incarcerated population is denied the right to vote. This distorts representation by giving disproportionate influence to the residents of the prison district  and diluting the votes of residents of all other districts. The problem is often called “prison gerrymandering.”

“HB1339 caps a twelve-year effort to roll back a unique provision of Virginia law that barred local governments from making adjustments to the federal Census data,” said Peter Wagner, Executive Director of Prison Policy Initiative and a national expert on prison gerrymandering.

Virginia’s law now matches that of most states.

“Most states give local governments the choice to avoid prison gerrymandering, and a few states like Colorado and Michigan actually prohibit local governments from using Census Bureau prison counts to enhance the votes of some residents to the detriment of other residents,” said Brenda Wright, Vice-President for Legal Strategies at Dēmos.

“Ideally, the Census Bureau would tabulate incarcerated people where they reside, at home, so that all districts could be drawn more fairly” said Tram Nguyen, Deputy Director of Virginia New Majority, noting that incarcerated people can’t vote in Virginia but remain legal residents of their homes while they are incarcerated.

“But Virginia has today given rural counties the option to fix an obvious flaw in the decennial Census and draw fairer districts in the future. I expect most counties will take this opportunity when they next redraw their lines,” Nguyen added.

About the Virginia law

Prior to 2001, Virginia law required local governments to redistrict based on “figures … identical to those from the actual enumeration conducted by the United States Bureau of the Census” with no flexibility provided to correct for any inequities that might cause.

In 2001, the legislature amended the law to give some counties — those whose total population was at least 12% incarcerated — the option to exclude the prison population. This change freed some counties from the impossible situation of drawing districts that were entirely incarcerated, but still required counties like Southampton to draw a district where more than half of the population is in prison. Residents of that one district received twice the influence over Southampton County affairs as residents in other districts without the prison.

Efforts to amend the law in time for the 2011 redistricting were unsuccessful, but in 2012, the legislature unanimously passed legislation to give any jurisdiction faced with drawing a district that would be 12% or more incarcerated the option to adjust the Census and remove the non-resident prison population. The newest amendment extends the choice to avoid prison gerrymandering to all counties, cities and towns that contain correctional facilities.

HB 1339, sponsored by Delegate R. Lee Ware, Jr. (R-Powhatan) passed the House unanimously on January 23, and with bipartisan support in the Senate on February 15. The bill applies only to county, city or municipal redistricting, and does not apply to funding or other uses of Census data, including state redistricting. 

National context

“My research has shown that the vast majority of counties and municipalities that host prisons reject prison gerrymandering. The majority of the exceptions are in states where state law is believed to require the absurd result of prison gerrymandering. Virginia fixed the problem with their state law. States like Minnesota, Tennessee and Wisconsin should follow Virginia’s lead,” said the Prison Policy Initiative’s Peter Wagner.

“By signing HB 1339, Governor McDonnell put Virginia in firmly in the camp of states that have rejected prison gerrymandering and helped ensure an equal voice for all citizens,”

“By signing HB 1339, Governor McDonnell put Virginia in firmly in the camp of states that have rejected prison gerrymandering and helped ensure an equal voice for all citizens,” explained Brenda Wright of Demos.  “Four states have recently passed legislation that ended prison gerrymandering for state legislative redistricting. The legislation in California and Delaware applies just to state legislative districts, but Maryland and New York both passed comprehensive legislation that applied to both state and local redistricting. Virginia has taken an important first step by freeing local governments from a state requirement at odds with the constitutional principle of ‘One Person One Vote’.”