Montana State Prison (MSP), located in the Deer Lodge valley, houses nearly 1,600 male inmates in a secure, 68-acre compound. Credit: Montana Department of Corrections

A proposal making its way through the Senate seeks to change how incarcerated Montanans are counted for the purposes of redistricting, ending the practice of “prison gerrymandering.” 

Senate Bill 77, sponsored by Sen. Shane Morigeau, D-Missoula, stems from language passed unanimously last year by the bipartisan Montana Districting and Apportionment Commission, the body tasked with drawing new U.S. House and legislative districts for the state every 10 years. 

The core of the bill requires the Montana Department of Corrections to note the last known address and other demographic data of inmates upon their intake into state prison facilities. The Districting and Apportionment Commission will then use that data during the decennial redistricting process, allocating incarcerated people to the communities they’re from rather than counting them as residents of the prisons that hold them.

“It’s critical for the work the commission does, especially as they’re drawing legislative lines as they’re doing right now,” Morigeau told the Senate State Administration Committee Wednesday. 

The proposal would help address the phenomenon of “prison gerrymandering,” supporters say. As it undergoes its decennial count of Americans, the U.S. Census Bureau’s standing policy is to count people where they lay their head at night. That means that people incarcerated in prisons are counted as residents of the places where those prisons are located, rather than of their home communities. 

But when it comes to drawing electoral districts, the practice creates a situation in which the population of districts with prisons — and thus, the political representation those districts receive — is inflated, while the population of districts where incarcerated people are from is deflated. In the American criminal legal system, where prisons are often located in predominantly white rural areas, but inmates — who generally can’t vote while incarcerated — are often from more diverse urban areas, the practice disproportionately affects communities with large non-white populations. 

As an example: One oft-cited study of the practice in Pennsylvania found that if incarcerated people were assigned to their last known home address, the city of Philadelphia would gain at least one majority-minority urban legislative district. 

In Montana, addressing prison gerrymandering is especially important for Native American communities, said Patrick Yawakie, testifying on behalf of the Blackfeet Nation. Native Americans — already an undercounted group in the U.S. census — represent about 6% of Montana’s population, he said, but about 20% of the state’s prisoners. 

“You can take action to ensure that at least the disparity does not harm Native American representation,” Yawakie said. 

Reflecting the true homes of incarcerated people for the purposes of redistricting is a simple matter of the constitutional principle of one person, one vote, he added. 

Between 2,500 and 3,500 people are incarcerated in state facilities at any given time, Montana Department of Corrections Deputy Director Cynthia Wolken told the committee. 

The department has already begun collecting last-known-address data at the behest of the current Districting and Apportionment Commission, Republican Commissioner Dan Stusek told the committee. However, MDC was able to give the commission address data for only about half of its inmates. These addresses are reflected in the legislative lines the commission drew last year. 

The bill says that incarcerated people whose last known address is not known or is not in Montana shall be removed from the count of the geographic unit that includes the prison and reallocated to “a state unit not tied to a specific geography,” as is done with military and federal government personnel stationed overseas. 

“There are certainly folks in the corrections system that do not have last known addresses,” Stusek said. “We’re not going to put folks willy-nilly in some random area.”

Under the proposal, the state will also request address data from federal correctional facilities in Montana, though there’s no way to mandate federal compliance. The bill would not impact local facilities like county jails. 

“At the end of the day, what the commission is trying to accomplish is getting that data as close as they can to being accurate, so when they’re drawing those district lines they’re accounting for people at their last known address,” Morigeau said during the hearing. 

The bill has yet to receive a vote.

The Senate State Administration Committee also heard testimony Wednesday on another Morigeau bill brought at the request of the Districting and Apportionment Commission. 

Senate Bill 86 would cap the number of electors in each precinct at 2,000.

“Right now what we’re seeing in Montana is really the wild west when we look at precinct sizes,” Morigeau said. “The commission encountered a wide range of precinct populations, which made the creation of districts with approximately equal populations much more difficult.” 

The bill encountered some pushback from county clerks and recorders who supported the idea but worried that 2,000 is too restrictive a maximum, especially in urban counties, instead advocating for a limit of 3,000 electors. 

“Just to give you an idea, if we were to do this with our current precinct layout, only 5 of our 32 precincts would qualify to be under 2,000,” Gallatin County Clerk and Recorder Eric Semerad testified. 

The bill has also yet to receive a vote in committee.

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