Prison gerrymandering: What is it? Why does it matter? And should Colorado address it?

The practice shifts political power to the predominantly white, rural, conservative areas where many of the state's prisons are located

Officers check on inmates at the Fremont Correctional Facility in Cañon City on July 19, 2019. There are some 1,600 people held there. They are counted as Fremont County residents even though they hail from all across the state. (Photo by John Herrick)

Colorado voters last year made it clear that they want to see the state’s legislative and Congressional districts drawn so that no one party has an unfair advantage.

With the overwhelming passage of two ballot amendments, the process of redrawing the political boundaries will change next year in an attempt to ensure that kind of thumb-on-the-scales redistricting, known as partisan gerrymandering, doesn’t happen. 

But the debate also surfaced a more obscure type of gerrymandering, which has some lawmakers and others asking: Should the state’s inmates, who are mostly concentrated in prisons in a few rural districts, still be counted as residents of those districts when the boundaries are redrawn?

“Every district sends people to prison, but not every district has a prison,” said state Rep. Kerry Tipper, a Lakewood Democrat. “When you have folks that are being counted in the area they’re being incarcerated in, how is it fair to bloat numbers for purposes of redistricting, when these people can’t vote?”

Redistricting happens every 10 years, following the Census. As in other states, Colorado’s districts are redrawn, as needed, to distribute population equitably: state House districts average about 80,000 people, state Senate districts average about 150,000 and Congressional districts average north of 700,000.

There are some 21,000 state prisoners in Colorado, a small fraction of the state’s nearly 6 million people. But they’re clustered together in just a handful of spots — Pueblo, Denver, the northeastern plains and Cañon City. So in some districts, prisoners account for a notable percentage of the population. 

For example, almost 6% of Salida Republican Rep. James Wilson’s constituents are prisoners. Most of them came from somewhere outside the district.

Counting disenfranchised inmates where they’re locked up shifts a little extra voting power to the predominantly rural, white, conservative areas where the state’s nearly two dozen prisons are located. This shift also takes power away from the more urban, liberal and racially diverse areas from which most prisoners hail. It’s not that individual politicians get any more voting power through the shift, but rather that when that power is allocated via redistricting, places with prisons are weighed more heavily than they would be if inmates were counted by their last known residence. 

There is almost no chance Colorado will give prisoners the right to vote in the near future. Lawyers and lawmakers believe that could only happen through a vote of the people — but there’s little evidence the legislature has interest in referring such a measure, nor that any citizen group is yet organized enough to collect the many thousands of petition signatures needed to put the question on the ballot.

Given that, Tipper is considering bringing a bill next year to require that, for the purposes of redistricting, Colorado count prisoners in their places of last listed residence. 

This would redistribute the state’s prison population — up to 94% of which hails from Colorado, according to the Department of Corrections — and, Tipper argues, make the state’s legislative maps a little fairer. 

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She notes that the average DOC stay is a little under three years, and most prisoners will return to their home communities upon release. But redistricting only happens every decade.

“An individual can’t vote while they’re in the custody of DOC, but they can vote as soon as they’re paroled or out of custody. So you have someone with a stay of three years and they’re counted for 10. That’s not fair either.”

Tipper is working with the group Colorado Common Cause on the potential prison gerrymandering bill, and there’s some early support from her fellow Democrats. But this small coalition doesn’t want to make it a partisan issue, and is hoping to sell some Republicans on the plan.

In 2002, the legislature passed a Republican-led bill to require that county commissioner districts discount prisoners. County districts, like those for the state House, state Senate and state Congressional maps, must have roughly equal populations represented. Tipper said GOP support for that bill gives her hope for a bipartisan bill next year.

State Sen. Jerry Sonnenberg, an eastern plains Republican with four prisons in his district and just shy of 4,000 inmates, isn’t sold.

“When you have a prison in the community, it affects the entire community,” Sonnenberg said. “So when you count population during the Census, it’s important to count (prisoners) in the community they actually are in now. 

“To have them counted somewhere else, I think, will do an injustice to the communities that actually holds those prisons.”

He acknowledged the imperfection of a system that counts people who stay in prison for less than three years on average in the places they were locked up. But, he said, people move around all the time, and imperfections are inevitably baked into any redistricting process.

“It is indeed a snapshot in time,” he said.

Some who support a bill to end prison gerrymandering in Colorado note that the practice could corrupt lawmakers. They could be motivated to vote for expanding or relocating prisons as a way to shift bits of political power from one area to another. 

Two of the prisons in Sonnenberg’s district currently sit vacant. He said there have been recent “conversations” about opening one or both of the facilities, which are located in Hudson and Burlington. A Denver civil rights attorney recently found that the Hudson prison might be particularly close to reopening, potentially as an immigrant detention center. ICE confirmed it has toured the facility but would not comment. 

If either or both prisons reopen, the eastern plains will get a little more power when it comes time to redraw districts. 

“If you’re a representative from any district in the state,” said Common Cause’s Patrick Potyondy, “you might have an interest in bringing a prison to your district because, one, it will bring jobs, and then also there’s that secondary possibility that if it’s a larger prison, it’ll bring 1,000 or 2,000 individuals who you’ll quote-unquote ‘represent’ — but not actually, because they can’t vote. It’ll skew power away from other districts in the state.”

Both Sonnenberg and state Rep. Rod Pelton, a Cheyenne Wells Republican with two prisons in his district, brushed off the idea that their judgment could be clouded on this matter.

Only five states (California, Washington, Nevada, Maryland and Delaware) have ended prison gerrymandering, but there are plenty more considering it. Colorado, like the rest of them, would likely need to take action in 2020 in order to guarantee the bill would be enacted ahead of upcoming map redraws.

Tipper acknowledged the urgency, saying “it’s an appropriate time to look at it.” 

But, she added: “We want to pass good legislation, so the timeline I’m less worried about. I want to make sure it’s reflective of Colorado values, has good buy-in and hopefully is not a partisan issue.”

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  1. The Democrats were all up in arms when it came to the citizenship question on the census so we are curious what the difference is in counting these prisoners where they are and counting illegals who also cant vote? (as well as other non citizens)

    Both these prisoners and non ciitzens who become US citizens will get the right to vote / the right to vote back so dont see what the difference is. There are districts in this state who have alot less citizens then other districts so its alot easier to run in.

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