While the attention of the nation's election law community recently was focused on whether the U.S. Supreme Court would adjudicate claims of unconstitutional "partisan gerrymandering"—the drawing of legislative district lines to favor one political party at the expense of fair democratic representation—Connecticut was wrestling with a different form of improper election practice, prison gerrymandering.

Prison gerrymandering poses the question: Should inmates in Connecticut prisons be counted for legislative redistricting purposes in the "prison district" in which their prison is located or in the "home district" in which they permanently reside?

The answer to this question will have an important political impact on the 2021 state redistricting plan because in Connecticut there are 16,000 residents locked up in state and federal prisons. Under the 2011 state redistricting plan, the average resident population for each state House district was approximately 23,000.

The U.S. Supreme Court determined last June in Rucho v. Common Cause that "partisan gerrymandering" is a non-justiciable political question under the U.S. Constitution, but it did not close the federal courthouse door to complaints against other anti-democratic types of gerrymanders, such as claims of "racial gerrymanders" or the failure to respect the "one person/one vote" mandate of the 14th Amendment.

Thus, in September 2019, the Second Circuit Court of Appeals upheld the justiciability of the 2018 complaint filed by the NAACP's Connecticut Conference in federal court alleging Connecticut's 2011 redistricting plan violates the "one person, one vote" mandate of the Fourteenth Amendment by counting incarcerated persons in their "prison district" [NAACP v. Merrill]. In our view, the appellate court properly rejected the state's claims that it was shielded by Eleventh Amendment immunity from suit and that the NAACP lawsuit presented a non-justiciable political question.

We believe the constitutional claims raised by the plaintiff NAACP showcase a disturbing anti-democratic practice in Connecticut that needs to be corrected either by preemptive legislative action that changes the allocation method of counting inmates for redistricting purposes or by an adjudication in favor of the plaintiffs.

The basic anti-democratic flaw of "prison gerrymandering" is that the practice artificially inflates the political representation of the mostly rural districts in which prisons are located while artificially deflating the representational power of the more urban districts in which most of the state's prisoners reside.

This undemocratic impact is compounded by the fact of severe racial and ethnic disparities in Connecticut's inmate population. As of the last federal census, whites constituted 71% of the state's population but accounted for only 31% of the inmate population; Blacks constituted only 10% of the population but constituted 41% of the inmate population; and Hispanics constituted only 13% of the population but 29% of inmates.

Thus, "prison gerrymandering" has the double effect of overinflating the representational voting power not just of rural over urban districts but also predominately white over minority-populated districts. By counting inmates for redistricting purposes where they permanently reside rather than where they are incarcerated, the state could reverse this practice that now denies artificially the "one person-one vote" legislative representation of urban communities.

Although we are pleased the Second Circuit has enabled the NAACP's lawsuit to proceed, the urgency of correcting this population allocation flaw prior to the upcoming 2020 Census and 2021 redistricting calls out for a legislative solution. The states of New York and Maryland changed their laws to require use of "home district" rather than "prison district" addresses for their 2011 redistricting. California, Delaware, Nevada and Washington State's revised laws will apply to the 2020 census.

Ironically Connecticut Secretary of the State Denise Merrill, one of the named defendants in the NAACP lawsuit, supports legislation ending "prison gerrymandering."

Adopting a legislative solution would also enable state lawmakers to craft a fix that eliminates political as well as legal problems. For example, a rural legislator who represents a prison district complained at a legislative hearing last year that while she supported the democratic principle she nonetheless opposed the bill ending prison gerrymandering because it might lead to her town losing education funding that is allocated on a per capita basis resulting from the consequential loss of inmate population.

It befuddles us why a town should be receiving per pupil educational aid for inmates who don't attend public schools or use other municipal services, but the legislature (unlike a court) could enact a "hold harmless" or other funding solution that gives the democracy reform a chance to succeed on its merits.

While there are other election law reforms needed that will impact the criminal justice system in Connecticut—for example, joining other states that grant the right to vote to felons who are no longer incarcerated on probation or parole—we call as a matter of high priority for the elimination of the practice of "prison gerrymandering" in time to enact a fairer and more democratic 2021 legislative redistricting plan.