happens every ten years. The United States conducts a census—a
systematic set of procedures we use to count the number of people
living in the country. Mandated in Article I, Section II of the U.S.
Constitution, the census was established in 1790 as the official
method for determining the actual number of people living in the U.S.
whether in residential structures, institutions or living unhoused.
framers of the Constitution wanted an accurate count because this
number would then be used to determine the number of congressional
representatives apportioned to each state. From their perspective,
this number determined how much political power each state would
battle for power among the framers was fierce. States that relied on
a plantation economy that were heavily populated with slaves. Their
representatives insisted that slaves be counted in the census, which
would give the south more congressional representation. The northern
states didn’t want the slaves counted at all. In the end, a
compromise was reached. The 3/5ths Compromise, as it was called, is
found in Article 1, Section 2, Clause 3 of the United States
Constitution, which reads:
and direct Taxes shall be apportioned among the several States which
may be included within this Union, according to their respective
Numbers, which shall be determined by adding to the whole Number of
free Persons, including those bound to Service for a Term of Years,
and excluding Indians not taxed, three fifths of all other Persons.
Census Act of 1790 mandated that everyone except untaxed Indians be
counted. It states,
marshals of the several districts of the United States shall be, and
they are hereby authorized and required to cause the number of the
inhabitants within their respective districts to be taken; omitting in
such enumeration Indians not taxed, and distinguishing free persons
including those bound to service for a term of years, from all others;
distinguishing also the sexes and colours of free persons, and the free
makes of sixteen years and upwards from those under that age;”
1868 the Fourteenth Amendment to the U.S. Constitution repealed the 3/5
Compromise thereby including 100% of all formerly enslaved people in
the census count. In 1879 a new census act mandated that Indians not
taxed (Indians living on reservations or unsettled areas) also be
included in the census. With these two changes, the census of 1880 was
the first to attempt to count everyone living in the United
the Census Bureau maintains the spirit of the objectives established
in 1879 which was to count everybody – citizens, non-citizen
legal residents, non-citizen long-term visitors and undocumented
immigrants. Americans living abroad who are not members of the armed
forces or working for the government are not included in the census.
On Tuesday, July 21, 2020, Donald Trump issued a directive to the
U.S. Census Bureau to not count undocumented immigrants in the 2020
census. This directive will likely be challenged on constitutional
grounds but if it is enforced, the political impact would be
significant especially in California, Texas and New York.
census data was originally used almost exclusively to determine
congressional representation and taxes, today, census data is also
used as the basis for determining federal funding allocations,
grants, and other forms of support to states, counties and
ten years, after the completion of the census the President is
required, by law, to report the census results to Congress. These
results may change the number of congressional seats in each state.
The governors of each state are then informed of the number of seats
his or her state is entitled. The state legislatures then redraw the
state’s congressional districts.
set the size of the House of Representatives at 435 voting members.
As of the last census, each congressional district was comprised of
roughly Seven Hundred Ten thousand people.
is what is rarely discussed – Some argue that the modern-day
Census Bureau maintains the spirit of the Census Act of 1790 even as
it applies to the 3/5th compromise.
her groundbreaking book, “The New Jim Crow: Mass Incarceration
in the Age of Colorblindness”, author and civil rights attorney
Michelle Alexander introduces her readers to a contemporary practice
she likens to the 3/5th compromise—Prison Based Gerrymandering.
those unfamiliar, the Three-Fifths Compromise was a deal struck
between the southern states and the northern states during the 1787
United States Constitutional Convention. To claim a larger population
and thereby be entitled to a greater number of congressional
representatives and more power, southern states wanted to count
slaves as if they were constituents, northern states opposed this
idea. They were at a stalemate. To strike a deal the solution they
agreed upon was to count three out of every five slaves as people.
This gave the Southern states a third more seats in Congress and a
third more electoral votes than if slaves had been ignored.
according to Alexander, most states census residence rules require
that incarcerated people be counted at their place of incarceration
as opposed to their home address. Like the slaves, the incarcerated
cannot vote in 48 states.
incarceration, a phenomenon that did not exist in 1790, has resulted in
major population shifts. The overwhelming majority of incarcerated
people in the U.S. come from urban areas while the prisons are
typically built in non-urban or rural areas.
counting practice results in a shift in population from urban center
to rural community thereby increasing the political clout of rural
communities while decreasing the political clout of urban
communities. And, all the while, the incarcerated, almost without
exception, have no say.
addressing the census residence rule and specifically prison-based
gerrymandering, the NAACP Legal Defense Fund reports:
the last several decades, the percentage of Americans incarcerated in
prisons has increased four-fold. Incarcerated persons are often held
in areas that are geographically and demographically far removed from
their home communities. For instance, although non-metropolitan
counties contain only 20% of the national population, they host 60%
of new prisons.
addition, because Latinos and African Americans are incarcerated at
three to seven times the rate of Whites, where incarcerated people
are counted has tremendous implications for how African-American and
Latino populations are reflected in the census, and, consequently,
how these communities are impacted through redistricting.
districts are based on population size. The number of people in a
geographical region determines the number of Congressional, state,
and local representatives. When prison-based gerrymandering is
employed, district lines redrawn to accommodate new census figures
result in large portions of what would have been urban populations
being reapportioned to rural counties and distorts democracy.
of this practice, urban communities, particularly urban communities
of color stand to lose the most. Census figures help determine where
government money will go to fund hospitals, school services, public
housing, social services, food stamps and other programs. As
mentioned, the census figures are also used to determine how many
seats each state has in the U.S. House of Representatives.
Prison-based gerrymandering may result in the loss of both federal
dollars and political representation for districts that are already
Gerrymandering also defies most state constitutions and statutes,
which explicitly state that incarceration does not change a
gleaned from the 2020 census will be used to help direct $1.5
trillion per year in federal funding for programs like Medicare,
Medicaid, Head Start, Title I and the National School Lunch Program.
The data is also used to help officials to determine individual and
organizational eligibility for these programs.
counting incarcerated people as residents of the towns where they are
confined, those towns stand to receive a benefit that rightfully should
go to the community the incarcerated person calls home and where they
will ultimately return.