Redistricting of state and congressional legislative districts happens every decade following the census. But once those maps are drawn and implemented, there are still ongoing court cases and state legislation that affect redistricting. Just in recent weeks, the U.S. Supreme Court ruled on two significant redistricting cases. For this podcast, the guest is Ben Williams from NCSL, an expert on redistricting who discussed some of the interesting developments around the topic, including efforts in some states to reallocate inmate data. He talked about the recent legal developments and also about the efforts in 13 states to reallocate inmate data, for purposes of redistricting, from where people are incarcerated to where they lived before going to prison. Williams explained the pro and con arguments for such legislation. He also talked about what you can expect in the next several years around redistricting before the next census, and what attendees at the NCSL Legislative Summit in Indianapolis in August can expect from NCSL’s Elections and redistricting team. This is a fast-moving policy area and just since this recording was finished, two more states have approved policies. As of today 15 states have adopted the policy—13 for the 2020 cycle and two more, Illinois and Maine, for the 2030 cycle.
Redistricting of state and congressional legislative districts happens every decade following the census. But once those maps are drawn and implemented, there are still ongoing court cases and state legislation that affect redistricting. Just in recent weeks, the U.S. Supreme Court ruled on two significant redistricting cases.
For this podcast, the guest is Ben Williams from NCSL, an expert on redistricting who discussed some of the interesting developments around the topic, including efforts in some states to reallocate inmate data.
He talked about the recent legal developments and also about the efforts in 13 states to reallocate inmate data, for purposes of redistricting, from where people are incarcerated to where they lived before going to prison. Williams explained the pro and con arguments for such legislation. He also talked about what you can expect in the next several years around redistricting before the next census, and what attendees at the NCSL Legislative Summit in Indianapolis in August can expect from NCSL’s Elections and redistricting team.
This is a fast-moving policy area and just since this recording was finished, two more states have approved policies. As of today 15 states have adopted the policy—13 for the 2020 cycle and two more, Illinois and Maine, for the 2030 cycle.
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Ed: Hello and welcome to “Our American States,” a podcast from the National Conference of State Legislatures. This podcast is all about legislatures, the people in them, the policies, process, and politics that shape them. I’m your host, Ed Smith.
BW: All 50 states have officially finished their initial redistricting for the 2020 census. We are now moving into the litigation phase which will last all decade long.
Ed: That was Ben Williams from NCSL, an expert on redistricting who sat down with me to highlight some of the interesting developments around the topic including efforts in some states to reallocate inmate data. Redistricting of state and congressional legislative districts happens every decade following the census. But once those maps are drawn and implemented, there are still ongoing court cases and state legislation that affect redistricting. Just in recent weeks, the U.S. Supreme Court ruled on some significant redistricting cases. Ben talked about the recent legal developments and also about the efforts of 13 states to reallocate inmate data for purposes of redistricting from where people are incarcerated to where they lived before going to prison. He explained the pro and con arguments for such legislation. Ben also talked about what you can expect in the next several years around redistricting before the next census.
Here is our discussion.
Ben, welcome back to the podcast.
BW: Thanks for having me Ed. Great to be here again.
Ed: Well Ben, we’ve talked about redistricting on this podcast a few times before and I’m always surprised how much I learn from you. I think I know a little bit about the topic, but you have a deep wealth of knowledge and it’s always fun for me to talk about this. Last time you pointed out that redistricting is something that is being tweaked in legislatures and by the courts throughout the decade. The effort around redistricting doesn’t stop once the maps are drawn for that decade. Before we get into our main topic today and we are going to talk about how inmates are handled for redistricting purposes which I’m very curious about. Can you give us a general overview of where things stand now in 2023. Are all the maps for the decade drawn or are there more court challenges ahead?
BW: Sure. So, all 50 states have officially finished their initial redistricting for the 2020 census. So that has concluded. The last state to finish was Montana. They certified their legislative maps in February of 2023. So, we’ve just come out of that phase. As you know, Ed, we are now moving into the litigation phase, which will last all decade long and inevitably there will be some states that will have to redraw their legislative or their congressional maps because they were struck down by a court for whatever reason. And there are currently challenges ongoing in both federal and state courts on these lines. I can give you a couple of examples. So, in state courts, one of the common things that we see are issues that we would consider traditional redistricting principles. So, if you think about compactness. Is a district a compact shape or does it have tendrils spindling out. I’m sure you’ve seen pictures with, like the audience has seen pictures of a district that looks elongated or unusual. So, we see challenges on that frequently and sometimes we see challenges on communities of interest, which is a criteria in about half the states. Alaska had to redraw some of its legislative districts because the state’s Supreme Court found that they didn’t preserve all of the communities of interest that the Constitution required.
And then we also have litigation on the federal level so we have most commonly and I think most of the audience would be familiar with this is the Voting Rights Act, particularly Section 2 of the Voting Rights Act, which says that a majority minority district should be drawn in areas where a minority group is politically cohesive and is in some area and they are unable to elect a candidate of their choice because of polarizations and how people vote by race. We just had a case at the U.S. Supreme Court shortly before this was recorded called Allen v Milligan and that case dealt with the legitimacy of the Voting Rights Act as it stands. It was upheld fully. And so, I think that not only will the current cases be resolved most likely in favor of plaintiffs given that holding, but there might have been some cases that people are holding off on filing because they wanted to see how this case was ultimately handled. And now that they’ve seen it’s a ruling in favor of the plaintiffs in Alabama in this case, we might see more Voting Rights Acts cases being filed in courts. So, we could be getting busier rather than less busy going into the next year or two.
Ed: Well, that case certainly is one that probably anybody who follows the news is aware of. It’s sort of the redistricting issue that pops up into general understanding, but let’s talk now about a topic that is not so clearly in the general public’s understanding. And that has to do with the allocation of prisoners or inmates for the purpose of redistricting. Give us the background on how it’s been handled and why there is so much attention to this now.
BW: As you know in redistricting, there are these issues that are really quiet and they do not take up a lot of the public consciousness and then they suddenly become a trend and you can’t always predict when something will become a trend and when it doesn’t. So, in the 2010 redistricting cycle, only two states did was known as inmate data reallocation, which is changing where people who are incarcerated in prisons are counted for purposes of redistricting. Those two states were New York and Maryland. So, two out of 50 not a huge trend. A few more states started adopting it in the mid 2010s and then over half a dozen states adopted the policy between 2018 and 2020. So, it was a big pile on at the very end of the decade. There’s a couple of different things that this is addressing. So, when you think about this policy, I think it’s important to think of three intersections. The first intersection is the Census Bureau’s definition of residence. So, all 50 states use data from the U.S. Census to redraw their legislative and their congressional districts. And I’m sure all of the listeners are familiar. They filled out the census form in the past. You know you get it in a letter and then this time you probably filled it out on a website. In the past, you might have filled out a postcard and mailed it back into the Census Bureau. Some people might have gotten a knock on their door from someone asking them to tell how many people lived in a particular house.
That is known as the Census Bureau’s residence rule. So, Ed, let’s say that you had a vacation home in Arizona that you might go to during the winter, but you live most of the time in Colorado. The Census Bureau for purposes of your residence would say where you eat or sleep regularly is where you actually reside so even if you are spending 4 out of 12 months in Arizona, you are a resident of your house in Colorado for purposes of the Census. And that’s just the Censuses definition of residence. The second of these three intersections is where states build prisons and where inmates commonly come from. So, most states build their prisons where land is cheaper, which would be in a rural area. And most inmates just by definition of demographics come from areas that are more highly populated. And those tend to be cities. Those also tend to be areas that have a greater percentage of their population of being people of color, minorities. The third intersection is felon disenfranchisement, which is the policy in 48 of the 50 states that someone who has been convicted of a felony and is currently serving their sentence in a prison is not permitted to vote. So, their right to vote is taken away for a little bit of time. The two states that don’t do this are Maine and Vermont. And so, you combine all three of those things. A person is considered to be a resident of where they are living most of the time. If you are incarcerated, that is definitely in your prison. The prison is probably out in a rural part of the state not necessarily in the urban area where that person is statistically on average more likely to be from. And the third is that they are not allowed to vote.
So, if you think about a district that includes a prison in a rural area because districts are made out of total population and not voting eligible population, there could be scenarios where you would have a district where a significant percentage of the people who are the constituents in that district are inmates who are incarcerated not choosing to be there and have no ability to have a say in the outcome of the elections that they are ostensibly represented in. And so, some states see that as a policy problem that they need to address and other states do not. And it’s very clear that there’s a distinction here because this is still fewer than half the states that have adopted this policy. And so that is the essential makeup of why states have chosen to adopt a policy where they go into the redistricting datasets that they get from the Census Bureau. They find these people who are incarcerated and they quote unquote move them from their address in the data file to some other place whether that be where they lived prior to being incarcerated. Whether they are removed from the count entirely to undue those population disparities that you can get in rural areas around prisons.
(TM): 09:45
Ed: Well, certainly we had that situation here in Colorado. We have a couple of communities that actually have a very sizable population of both state and federal inmates. That, of course, leads to the notion that states all have a little bit different approach to this and pretty much every other policy matter. There’s no one size fits all. We know that. So how does that work out here? How do the policies differ among states if you were to put them into sort of buckets?
BW: So, the states that have adopted this policy and there are 13 of them as of 2023 when we are recording this. Of those states, the key differentiators are whether or not the policy applies to state and federal inmates or just state inmates. There is a distinction there between the states that have done so. How people without a last known address are treated. So, if you think about it, we were just talking in the previous question about how that last known address is where people are typically moved to. If you lived in Fort Collins, Colorado, and then you were incarcerated and you were placed in a prison down in the southeast part of the state near Oklahoma, you would be moved quote unquote back to Fort Collins. But let’s say you didn’t have a last known address. Maybe you were homeless or transient or maybe you’ve been incarcerated for so long that that last known address doesn’t exist anymore. States have different ways of handling those situations where there’s no place to move someone to. Some states just leave them at the prison then. They just say okay you are just going to stay a resident of the prison. Other states remove those people from the count entirely. So that’s another differentiating factor.
The third one is and this is just of a normative question which is how do you treat someone who is going to be in prison at minimum more than 10 more years. And so, if you think about it, one of the arguments that advocates of adopting these policies often make is that the vast majority of people who are incarcerated are only in for a few years. They will be back at their last known address for a majority of the decade and so there is something of a normative advantage to having someone reallocated. But if someone is going to be at the facility for at least 10 years or more guaranteed because of the length of their sentence and there is no amount of good time that they can earn under the state’s time earned policy to get under 10 years, should that person just be left at the facility then because they are a resident of there and they are not coming back. There are a handful of states that make a differentiation based on sentence length. It’s not the majority of them. It’s only a handful but that is another area where we see some distinctions in how these policies are adopted.
Ed: Thanks Ben. I’ll be right back with the rest of our discussion after this short break.
(TM): 12:30
I’m back with Ben Williams from NCSL talking about redistricting. Ben, can you break down the arguments for those who advocate for these sorts of changes and those who oppose them? Does it break down cleanly?
BW: So, there are lots of different arguments that are made by advocates and opponents. Ah you often hear the advocates claims and you don’t always hear the opponents claims and debates. From what I have heard from interviews that we conducted as part of this report, I can tell you that the advocates typically make a normative argument about political representation and that the people who live around prisons have a disproportionately strong vote because it just takes fewer votes to win an election than not. That is the core essence of the normative argument.
And then on the opponent’s side, opponents of this policy are people who advocate for status quo, tend to say that these are people who have committed crimes against the public. These are public crimes against society. And through the democratic process, people have elected representatives that set prison sentences for people to serve their time and pay their debts to society and we shouldn’t be making special exceptions to increase their political power. And so that is a flavor of the argument for not adopting this.
Ed: Kind of as a corollary to that, does this breakdown along party lines?
BW: So, the differences in between the ways the states implement policies do not breakdown along policy lines. By and large, this is a policy that has been adopted by states with Democratic majorities in their state legislature and Democratic governors. There are a couple of exceptions to that, but by far if you looked at the map of the states that adopted it, it is Democratically controlled states.
Ed: Now, you wrote a report for NCSL summarizing states experiences implementing these inmate data reallocation policies in 2020 redistricting cycle. You guys have an awful lot of things you can write reports about. And I wondered why it was that this issue was important for you to focus on and what were the key takeaways listeners might be interested in.
BW: So, Ed, for the legislators and legislative staff who are listening to this podcast, one of the things that a lot of NCSL staff including I and the other members of the elections and redistricting team like to focus on is any topic that we get a lot of questions on because if we are getting a lot of questions on it from our members, it usually means that it is a topic that we should dedicate more resources to to get clearer and better information to policymakers. And so, this was a question that we got over and over and over again from staff that were implementing this policy for the very first time. As I mentioned, there were 13 states that adopted it to implement in 2020. There were two in 2010, which meant there were 11 states that and most of them were adopting this in the last few years before the redistricting cycle that had to suddenly get this policy enacted and they didn’t have a lot of information on how to do it because so few states had done it a decade ago.
At NCSL, we had some information, but it was not nearly as fulsome as this report is. And so, one of the things that we set out to do as the redistricting cycle was winding down was, we need to capture the institutional knowledge that has been gained by the people who were doing this for the first time in this cycle. Because as you know, NCSL doesn’t advocate for or against a policy being adopted, but what we do is we try to provide the best information about that policy so that legislatures have that information when they choose whether to vote for or against it on the floor if a bill on this topic comes up in their chamber. And so, we wanted to capture all of that information and publish it in a way that would be useful. And so, what we did was we traveled to every single state that had staff in it that had adopted one of these policies and we sat down with them. We did interviews that typically lasted well over an hour per staffer. We just wanted to capture every single thought they had about the implementation of the policy itself. What worked. What didn’t. What recommendations did they have to change it in the future.
Now, Ed, as you know, there are a lot of people in redistricting that are hesitant to talk on the record about what necessarily happened in their states. That is just the nature of the topic and the subject matter. So, we guaranteed anonymity to every staffer that participated in this process and we did not talk to the legislators who were enacting it. We only talked to the staff that were implementing it. And we there are two variances of that staff. One of them are staff with the Department of Corrections that were responsible for gathering the data on their own inmate populations that were submitted to the Census Bureau and submitted to the state as part of implementing this policy. And the other were the redistricting staff who received that data and then put it into practice. And so, in the end, we talked to over 40 staff over those 13 states.
(TM): 18:46
Ed: NCSL’s Summit, of course, is coming up in August in Indianapolis. Are you taking this report there? Are you going to be talking about this and other redistricting issues.
BW: So yes, we are. So redistricting is not as hot in 2023 as it was in 2018 or 2019 when it was impending. But we will be talking about redistricting and we will be talking about this report. So, our program, the Elections and Redistricting Program, has content on all three days of the Summit, which is the 14th, the 15th and the 16th of August in Indianapolis. We have a pre-conference on the 12th on elections and election administration. The public is more than welcome to come. That does not require a Summit registration to attend. We also have a post-conference on redistricting on the 17th, Thursday, and we will be discussing this report as well as some other topics about data in redistricting and we are ending. I’m very excited about this. We are ending with two experts in data and policy on the Democratic and Republican side who are going to prognosticate what redistricting is going to look like in 2030 and beyond. So, we are having a future perspective panel on that post-conference so I encourage anyone who finds this to be interesting to please attend because I think that’s going to be really insightful.
Ed: I want to ask you if you can fill listeners in on what other developments you think will come up, maybe not in 2030, but maybe in the next few years as we get closer toward that point that we will do another census.
BW: So, I think the most important thing for people to take away about redistricting between now and 2030 is that when we look back at the end of a decade when redistricting is about to start and we look back at what the law is about redistricting, it is different when people drew the lines to when final judgement of how constitutional or in compliance their lines were are and the year ending in 9. And so, in the 2010’s, states thought they had to comply with Section 5 of the Voting Rights Act and that racial gerrymandering was not a doctrine that would be readily enforced. Both of those things turned out to be not true by the time we got to 2019. In the 2000s there were similar changes. In the 1990s there were similar changes. So, what I will posit with high confidence is that by the time we get to 2029, what is valid law in the United States on redistricting will be different than it is right now. And so, this is a topic area that you can never put in the back, you know, put it in the sock drawer and just think oh I’ll think about that in five years. I don’t need to focus on that right now. I’ve got bigger fish to fry. This is a big fish and you should be frying it right now. I think the most important things to come are going to be at the U.S. Supreme Court related to the Voting Rights Act and racial gerrymandering and the permissibility of using race in redistricting. That’s going to be something that will continue to be litigated in the years to come. I also think that we are going to see more states possibly adopt redistricting commissions. This is a trend that we’ve seen increasingly relatively steadily across the decades. I don’t see any reason why that would stop now.
Ed: Well great Ben. Thank you for bringing us up to date on that and I would encourage people to go to the Summit and to check out these redistricting sessions. Thanks very much.
BW: Thank you Ed.
(TM): 22:03
Ed: I’ve been talking with Ben Williams from NCSL about redistricting developments and especially efforts to pass legislation affecting how inmate data is allocated for redistricting purposes. Thanks for listening.
You can check out all the podcasts from the National Conference of State Legislatures by searching for NCSL podcasts wherever you get your podcasts. Tim Storey, NCSL’s CEO, hosts “Legislatures: The Inside Storey” where he focuses on leadership and legislatures. The “Our American States” podcast dives into some of the most challenging public policy issues facing legislators. On “Across the Aisle” host Kelley Griffin tells stories of bipartisanship. Also check out our special series “Building Democracy” on the history of legislatures.