“‘If you cannot afford an attorney, one will be appointed for you.’ Unless you’re losing your children, or your home, or your healthcare . . . .”
– National Coalition for a Civil Right to Counsel
Let the case of the slaves be considered, as it is in truth, a peculiar one. Let the compromising expedient of the Constitution be mutually adopted, which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants, which regards the SLAVE as divested of two fifths of the MAN.
James Madison wrote The Federalist No. 54 defending the infamous three-fifths compromise, which allowed White southern slaveowners to aggregate political power on the backs of their Black slaves, without representing their interests in any substantive way.
Prison gerrymandering—using prison populations as part of the underlying population for redistricting—is a modern manifestation of the same concept. Prisons, and the people who are currently incarcerated within, are uniquely productive in many aspects of society. Prisoners may be paid a lower wage than a similarly employed individual outside of prison. They are almost never allowed to vote. Federally, slavery itself is not prohibited for incarcerated individuals. Prison gerrymandering similarly co-opts prisoners as a resource to be used for another party’s benefit.
This concept is particularly harmful to minority populations when amplified by a dramatic rise in incarceration rates generally, exemplified in both racial disparities in incarceration rates and racial segregation. Due to a confluence of extreme racial disparities in incarceration rates and a well-earned reputation of racial segregation, Wisconsin provides a dramatic example of this problem.
Wisconsin, like many states, has historically counted prisoners for redistricting purposes at their location of incarceration instead of the community that they originated in. This practice continues to be justified based on an incorrect interpretation of the state’s constitution, which likely violates the Fourteenth Amendment’s Equal Protection Clause. To avoid perpetuating this flawed method, the state should change how it interprets “inhabitants” for the purpose of redistricting before the 2021 redistricting cycle. Following the Supreme Court’s rejection of federal court review for political gerrymandering issues, prison gerrymandering will be a heavily litigated area of law at the state level, particularly in states like Wisconsin, where the impact is drastic.
This Note has six parts. Part II describes the concept of prison gerrymandering. Part III distinguishes incarcerated individuals from other analogous populations. Part IV describes prison gerrymandering in Wisconsin, specifically. Part V explains how Wisconsin’s interpretation of “inhabitants” is inconsistent and erroneous. Part VI suggests that litigation based on the Equal Protection Clause might be the best avenue to sue a state based on prison-oriented gerrymandering. Finally, Part VII suggests two options for Wisconsin to resolve this issue for the 2021 redistricting plan: legislative action to prohibit prison gerrymandering or executive action by the governor to veto any redistricting plans that uses prison populations to inflate districts.