New Mexico made great strides this year toward building a more equitable electoral process when Gov. Michelle Lujan Grisham signed the Redistricting Act into law, empowering a bipartisan Citizens Redistricting Committee to propose fair electoral maps for the state. In passing the act, New Mexico joins a handful of other states that grant all power, or advisory power, to independent and bipartisan redistricting committees to ensure that maps fairly distribute representational strength.

Today, that committee is uniquely positioned to begin dismantling prison-based malapportionment — a process more commonly known as “prison gerrymandering.” The opportunity to do so will not arise again for another decade, when the U.S. Census Bureau releases its 2030 decennial census data and the next redistricting cycle begins.

What is prison gerrymandering?

Prison gerrymandering is the process by which individuals who are incarcerated are counted as “residents” not of the places where they grew up, but of districts housing incarceration facilities. But according to the Department of Justice’s findings in 2018, the average time served by people who are incarcerated in state facilities was 2.6 years. Redistricting takes place once every 10 years, meaning that people who are incarcerated are counted as residents of their prison facilities long after they are released.

As ACLU Voting Rights Project Senior Staff Attorney Julie Ebenstein explains in her recent law review article, people who are incarcerated cannot in any meaningful sense be described as “residents” of the areas where prisons are located:

“First, prisoners are not in prison by choice. Second, due to the severe and purposeful isolation of prisons, prisoners lack economic, social, or civic ties to the communities just beyond the prison walls. Third, due to disparities in the criminal justice system and political dimensions to prison locations, the demographic incongruity between the prison population and the surrounding community is stark.”

In an era of mass incarceration, where people are counted has a profound effect on our democracy — with downstream ramifications for under-counted communities. In the 1980s and 1990s, with the rise of the “war on drugs” and policies that criminalized poverty, prison populations grew by 134 percent in a single decade. In 30 years, that population has grown by 500 percent. Today, there are 2.3 million people incarcerated at facilities across the nation — many of whom have been permanently disenfranchised. In parallel, incarceration facilities were largely constructed in rural areas, ensuring a steady flow of captive constituents to those wards and districts. Representatives of those communities, in turn, don’t see themselves as accountable to their non-voting, incarcerated constituents.

In short, prison gerrymandering ensures that the bodies of mostly BIPOC in detention are used to bolster the voting strength of the largely white, rural districts where incarceration facilities are located — an average of 100 miles away from the homes of people who are incarcerated — and seals that distribution of power for a decade. This process touches the lives of millions by diluting the voting strength of communities that people who are incarcerated call home, leading many scholars to liken prison gerrymandering to the Three-Fifths Compromise.

What can be done to end prison gerrymandering?

The simplest way to end prison gerrymandering would be for the Census Bureau to count people at their pre-incarceration addresses. In 2013, the ACLU and Common Cause signed a coalition letter to the Census Bureau urging it to stop counting people in detention as residents of their incarceration facilities’ districts. We were far from the only ones: In 2016, 77,863 out of 77,887 comments to the Census Bureau argued that incarcerated peoples’ residence should be defined as their pre-incarceration addresses. The Census Bureau declined but met activists part of the way: Now, states that wish to “‘move’ their prisoner population back to the prisoners’ pre-incarceration addresses for redistricting and other purposes” may send the bureau a data file “indicating where each prisoner was incarcerated on Census Day, as well as their pre-incarceration address.” The Census Bureau will then review the submitted file and provide a data product that states can use to construct alternative tabulations for mapping and other purposes.

The Census Bureau will release its data — including group quarters data — to the states in August, spurring a new round of redistricting. New Mexico must work with the Census Bureau and with the state Department of Corrections to aggregate the pre-incarceration addresses that the agency already collects to enable the Citizens Redistricting Committee to rightfully reallocate people in facilities back to their homes and distribute power back to those communities. No state or federal law prevents committee members from doing so.

Indeed, the bureau is publishing this data to make it easier to adjust for incarcerated populations during redistricting. The New Mexico Redistricting Act provides only that the committee use “the most recent federal decennial census data” and “other reliable sources of demographic data as determined by majority vote of the committee.” If data on pre-incarceration addresses cannot be retrieved in time, we urge the newly empowered committee to divide incarcerated populations among multiple wards and districts to mitigate prison gerrymandering’s vote dilutive effects.

While it is too late this legislative season to propose and pass a bill ending prison gerrymandering, the New Mexico legislature can and should do so in the future. It can look to other states as examples. In May, Connecticut became the 11th state to end prison gerrymandering. Earlier this year, our colleagues in Illinois collaborated with dedicated activists and legislators to help the state end its prison gerrymandering practice. Today, more than 35 percent of the country’s residents live in an area that has formally rejected prison-based gerrymandering.

The stakes could not be higher. In New Mexico, Native Americans are incarcerated at nearly twice the rate as non-Hispanic white individuals. Black and Latinx residents of the state are similarly targeted. In the city of Grants in 2010, the last time the Census was published, one correctional facility accounted for about 25 percent of a city council district; in Cibola County, 22 percent of people counted as residents of a county commission in district 4 were incarcerated.

Prison gerrymandering creates unequal representation and allows electoral maps to be drawn that underrepresent communities of color and historically marginalized populations. Only when incarcerated people are rightfully seen as residents of the places where they lived, grew up, and almost always return to upon release will our maps reflect our communities’ constitutionally enshrined right to be fairly represented.

To learn more about prison gerrymandering, please visit our partner’s website.

Before coming out as transgender, I always saw Pride as an over-the-top and insanely fun celebration of humanity’s best quality: love. 

Though in the years since being ‘out,’ my appreciation for everything Pride month represents has widened and deepened substantially. Pride is protest, yes. But, Pride is also a story about our interconnected struggle for liberation. It’s a story about how those who came before us struggled to live authentically and securely. Additionally, it’s the story about how, even today, we are still struggling to live free and equal in the United States.

In retelling the story of Pride, it has become more and more popular to reference the Stonewall riots as the major event of LGBTQ+ liberation. But Stonewall was not the beginning of the LGBTQ+ struggle in America. Far from it, in fact. It was simply one inflection point amongst many. 

In 1924, Henry Gerber founded the Society for Human Rights, the first recognized gay rights organization in the United States. The U.S. Supreme Court gave the LGBTQ+ community their first win at the court in 1958, ruling that pro-LGBTQ+ writing could not be banned. The 60s saw countless riots across the country in protest of police harassment of LGBTQ+ people, the most notable of which happened after trans women of color led a six-day uprising in response to the police raid on the Stonewall Inn in Greenwich Village.

In all of these moments and countless others, the fight for equity and equality has never been about a singular moment or person. Throughout history, we’ve been here seeking to survive and thrive and, unfortunately, we’re still fighting many of the same battles today.

While the balance of power is shifting away from LGBTQ+ hate, there are still active groups both here in New Mexico and across the country who continue to reach to the past where hate against LGBTQ+ people was both normal and legal. Their goal is simple: to make it harder for us to live proudly while retaining the right to discriminate and deny accommodations, health care, and services to LGBTQ+ people. 

The United States Supreme Court today ruled in favor of a Philadelphia Catholic foster care agency that refused to work with same-sex couples. Though the ruling was based on specific language in the contract and does not recognize a license to discriminate based on religious beliefs, the decision is nonetheless disappointing and disheartening. In states across the country, over the last year, there has been a tidal wave of anti-trans laws introduced -- more than in the previous 10 years combined.

Unfortunately, New Mexico isn’t immune to attempts at undermining LGBTQ+ dignity and rights. This past legislative session, lawmakers introduced a bill aimed at banning trans girls from school sports. Another bill aimed to make it legal to use  religion as an excuse to discriminate against LGBTQ+ people in healthcare. While both legislative efforts failed spectacularly, they underscore how we must remain on guard as those who desire to discriminate against queer people are continuing to launch political attacks here at home.

In April, we learned the Alamogordo Public Schools Board of Education was considering a resolution that would ban trans girls from participating in school sports. This week, we received news that this effort is moving forward. In response, the ACLU of New Mexico is marshaling every resource we have available to fight this transphobic attack on children.

Other horrendous incidents -- including the repeated misgendering of a trans woman at a local store in Albuquerque and vandalism of a crosswalk meant to celebrate our community --  highlight just how much work there is still left to be done to change hearts and minds. 

Trans people in particular have a higher rate of joblessness as well as a higher likelihood to be unhoused. Despite advancements in New Mexico on trans people being able to obtain accurate IDs, we are still waiting on the Biden administration to act to make it easier to get accurate federal IDs. 

We’ve seen a lot of major victories over the past decade, but New Mexico and the United States still have a long road ahead to ensure all of us are equal, safe, and free. The NM Entiende coalition, along with allied organizations like the Transgender Resource Center of New Mexico and Equality New Mexico, are fighting every day to ensure LGBTQ+ people can live safely without shame or stigma within our communities. Though our fight isn’t finished, I have a lot of optimism that together, we will continue the legacy of those who came before us advancing our rights, and ensuring the next generation can live even more authentically than we can.  

I am confident that love will win, but I also know that the legacy of Pride means that it’s on all of us to ensure that this future becomes reality.