About six miles from the heart of Kuna, among the sagebrush-studded hills off Pleasant Valley Road, sits a collection of steel-and-concrete buildings, many behind chain-link fences capped with barbed wire.

These six Idaho Department of Correction facilities house more than 5,600 men and women serving prison sentences.

Together, they make up over 60% percent of the state’s total prison population. And, because of the way census data is used in the drawing of legislative districts, these inmates, though they can’t cast a ballot, make up a large portion of the population in District 22.

As of the 2010 census, prisoners made up nearly 12% of District 22’s population, according to a national analysis by the Prison Policy Initiative.

What that means is a smaller group of people in District 22 — the residents who are not in prison — have as much voting power as entire populations of other districts.

The U.S. Census Bureau counts inmates as residents of the district in which the prisons are located, rather than the district they lived in before going to prison.

Because states use census data when drawing legislative districts, this practice led to boundaries that do not accurately represent the population living there; the phenomenon became known as “prison-based gerrymandering.”

The Census Bureau has faced criticism for this, and has so far stood its ground. It announced it will not change the way it counts prisoners in 2020. However, bureau officials will provide states with additional data from the 2020 census about where prisoners were living before their incarceration. That won’t be part of official census data; it will be available for states to use for purposes of redistricting.

Earlier this month, Idaho officials confirmed to the Idaho Press they will not use that additional data even if it is provided.

COUNTING PRISONERS

Every 10 years, the Census Bureau conducts a count of as many of the country’s residents as possible. Residents fill out information about where they live and how long they’ve lived there. The bureau divides living spaces into two categories — housing units and group quarters. Group quarters include institutions such as prisons, nursing homes and mental hospitals, as well as college dormitories and military barracks.

Historically, however, the bureau didn’t publish its counts of people in “group quarters” until the summer after the count, according to the Prison Policy Initiative — usually after states had used other census data to complete redistricting.

“Literally, just finding the prison populations in the redistricting data was difficult,” according to a 2018 article by Peter Wagner, of Prison Policy Initiative. “Yes, you may know where Attica prison is in upstate New York, but the prison population is often mixed with that of nearby homes in the final Census data.”

The problem was more pronounced in some states than in others. Across the country, prisons tend to be in rural districts, which means those districts receive the benefit of having a prison nearby — even though the people in those prisons are not as likely to be from the district. Often, they’re from urban centers far away.

The practice has led to criticism from across the country. On June 30, 2016, the Census Bureau published a document in the Federal Register, the official journal of the U.S. government, asking for comment on how it defines residence in its survey. It received 77,995 replies, according to a 2018 article in the Federal Register — and 77,887 of those pertained to how the bureau counted prisoners. All but 24 of those comments suggested the bureau should count prisoners as residents of their home districts, rather than as residents of the district where the prison was located.

“Almost all commenters either directly suggested, or alluded to the view, that counting prisoners at the prison inflates the political power of the area where the prison is located, and deflates the political power in the prisoners’ home communities,” according to the 2018 article. “These commenters stated that this distorts the redistricting process by allowing officials to count prisoners as ‘residents’ of the districts where they are imprisoned, even though the prisoners are not allowed to vote during the time that they are confined in that district.”

Some commenters also suggested the practice cut against the Voting Rights Act, and the concept, grounded in the U.S. Constitution, of one person to one vote.

The bureau, however, declined to change how it counts prisoners, citing the federal Census Act of 1790, which establishes the concept of “usual residence.”

According to the article, “‘usual residence’ is defined as the place where a person lives and sleeps most of the time, which is not always the same as their legal residence, voting residence, or where they prefer to be counted.”

“Therefore, counting prisoners anywhere other than the facility would be less consistent with the concept of usual residence, since the majority of people in prisons live and sleep most of the time at the prison,” according to the article.

Under that logic, the more than 650 Idaho residents imprisoned at Eagle Pass Correctional Center in Eagle Pass, Texas, will be counted as constituents in Texas and in the congressional voting districts the prison is located in geographically. Texas has a large prison population, and many cities and counties in Texas have taken steps to limit the effects of prison population on redistricting. However, as of January, neither Eagle Pass nor Maverick County — the two local bodies governing the area where the prison is located — had done so, according to Prison Policy Initiative.

‘WE HAVE NO AUTHORITY’

Even though the Census Bureau does not count people in prison as residents of their home districts, after the 2020 census, the bureau will provide states with more information about prisoners’ residences, so states can use that information in its redistricting process.

The bureau will provide information about where a person was living prior to prison. That data comes from records kept in the state, such as documents from prison, court, or a person’s arrest, Misty Slater, spokeswoman for the U.S. Census Bureau, wrote in an email to the Idaho Press. This additional data won’t be used for purposes of the census, but if state governments want to use it in redistricting, they can.

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In 2010, for instance, Maryland became the first state in the country to pass a law ensuring people in prison will be counted, for purposes of redistricting, as residents of their home district, rather than where the prison is. The state used that data about where a person was living prior to incarceration, and, for purposes of redistricting, moved that person to that district.

Delaware, New York, and California have passed laws aimed at controlling the effect of prison gerrymandering. In May, Washington and Nevada passed laws ending the practice completely.

Idaho Secretary of State Lawerence Denney told the Idaho Press in an email that state officials would not use anything other than official census data for the purposes of redistricting.

“I visited with the Attorney General’s office, and we come to the same conclusion: For reapportionment we have to use the official census numbers, even though they may give us other data, we have no authority to move any numbers around,” Denney wrote. “For us to use the data, they would have to count the prisoners where they lived before incarceration, which they don’t do.”

The 2021 Commission for Reapportionment, which will decide how to draw Idaho’s voting districts based on 2020 census data, has yet to be appointed.

IN IDAHO

Sen. Lori Den Hartog, R-Meridian, said she hasn’t heard discussion about prison location changing how the state examines redistricting. She represents District 22, and said it wouldn’t make sense to draw district lines between the prison facilities in the area simply to divide them.

The prisons are all in the Treasure Valley, she said, near Idaho’s largest population center — so it’s not as if prisoners are being shipped to the district from other areas en masse and being counted as constituents.

She pointed out roughly a third of Kuna’s population is made up of juveniles, who also don’t vote.

“We have so many kids,” she said. “Those are people we count in the census just like everybody else.”

Keith Bybee, a legislative budget analyst, who was involved in the state’s last redistricting efforts, said children under 18 years old are still counted in a district’s population.

“Districts aren’t composed of eligible voters; they’re composed of populations,” he said.

Rep. John Vander Woude, R-Nampa, and Rep. Jason Monks, R-Nampa, who also represent District 22, did not return a call or email request from the Idaho Press.

Aleks Kajstura, of the Prison Policy Initiative, said an almost 12% incarceration rate is high for a voting district.

“That’s pretty high,” she said. “It’s really high, and what’s interesting about Idaho is a majority of the prison population is counted there.”

In Idaho, many districts don’t have a prison facility within their boundaries, so District 22 is in a unique position.

The district’s population has grown at an explosive rate in the last 10 years, however, which means in the 2020 census, the prison population will likely make up less than 12%. But on July 1, 2010 — after the census had been completed for that year — the Idaho Department of Correction opened its Correctional Alternative Placement Program facility, also in District 22. As of Aug. 21, 431 people were housed there.

There has been talk in recent years of building a new prison facility to house the torrent of people entering — and reentering — Idaho’s prison system. Those discussions never got off the ground, however, and in February, Idaho Department of Correction Director Josh Tewalt did not ask the Idaho Legislature for money for a new state prison.

No firm decision was ever reached about where the hypothetical prison would have been built, and Jeff Ray, spokesman for the Idaho Department of Correction, confirmed a location was never discussed.

‘A NEW PROBLEM’

For much of the 20th century, there may not have been enough people in American prisons to skew census data in any meaningful way. Beginning in the mid-1970s, though, the number of people in prisons across the country began to skyrocket, shooting from about 100 people per 100,000 in prison in the 1970s to about 450 people in prison per 100,000 in the 2000s, according to the Prison Policy Initiative.

While that change took place over three decades, the time period only saw three censuses.

“Before mass incarceration became a problem in this country, there simply weren’t enough incarcerated people to make a difference,” Kajstura said. “… To the census, which happens every 10 years, this is a new problem.”

Tommy Simmons is the Ada County public safety reporter for the Idaho Press. Follow him on Twitter @tsimmonsipt

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