States, the Final Frontier: How Minnesota’s State Constitution Can Serve as New Ammunition in the Fight Against Prison Gerrymandering

By Meredith Gingold. Full Text. 

“Prison gerrymandering” is the term for the United States Census Bureau’s practice of counting incarcerated individuals toward the population of the district where they are incarcerated, not the district where they resided before incarceration. Prison gerrymandering systematically transfers population and political power from urban districts to rural districts, as the majority of prisoners are from cities while prisons are disproportionately located in rural areas. While many states have proposed laws to curtail the practice, most states have not succeeded in abolishing the practice entirely. Although a federal court case challenging prison gerrymandering via the Equal Protection Clause has found some recent success, it appears that federal courthouse doors may be closing to prison gerrymandering cases of this nature due to current Fourteenth Amendment Supreme Court precedent. While additional federal claims could challenge prison gerrymandering for violating the right to vote or the Voting Rights Act, these claims are untested and uncertain. With the 2020 census wrapping up and redistricting right around the corner, it is essential that legal challengers bring forth their strongest claims. This Essay proposes that state constitutions provide another route to challenge prison gerrymandering. Oftentimes, state constitutions grant broader protections to voting rights and have more expansive Equal Protection clauses that can serve as a strong legal foundation for challenging prison gerrymandering. Additionally, some state constitutions protect prisoners’ residency status, further bolstering such claims. This Essay uses the Minnesota Constitution to explore how a potential state constitutional challenge could work. Although each state’s constitution, supreme court, and other factors vary, this serves as a starting point for state court challenges to prison gerrymandering across the United States. Reformers in Minnesota and across the country should seriously consider launching state constitution-based challenges to prison gerrymandering, given the importance of the upcoming redistricting cycle.