Dale Ho has posted this draft on SSRN (Stanford Law and Policy Review).  Here is the abstract:

“One person, one vote,” is enshrined in Fourteenth Amendment jurisprudence as a bedrock principle of political equality, requiring that election districts be composed of the same number of residents so that all individuals are represented equally in the political process. And yet, during the 2000 redistricting cycle, this fundamental principle was violated by many state and local redistricting plans by “prison-based gerrymandering,” a practice whereby state and local governments count incarcerated persons as residents of the areas where they are held. This practice distorts our democratic process by artificially inflating the population count—and thus, the political influence—of the election districts where prisons and jails are located.

CAPTIVE CONSTITUENTS argues that this phenomenon is not only unfair, it also exposes states and localities to liability in the current redistricting cycle. Because people of color are overrepresented in the incarcerated population, which is overwhelmingly held in rural, predominantly white areas, prison-based gerrymandering dilutes minority voting strength and transfers political power from urban communities of color to predominantly white areas, raising substantial concerns under both the Fourteenth Amendment and Section 2 of the federal Voting Rights Act.

Although some have argued that incarcerated individuals are properly counted where they are held, prisoners are not residents of those communities, as nearly every state has a constitutional or statutory provision stating that a person does not gain or lose residence by virtue of incarceration. This rule comports with common sense: incarcerated individuals are not “constituents” of the places where they are confined. Tellingly, in the two states where incarcerated individuals can vote without limitation (Maine and Vermont), they do so by absentee ballot in their home communities, not in the prison districts.

Last year, New York, Delaware, and Maryland passed legislation to reject prison-based gerrymandering. Other states should enact similar legislation and take advantage of the Census Bureau’s recent decision to release data on incarcerated populations that can be utilized during this redistricting cycle. For state and local governments, doing so would not only reaffirm principles of political equality, it would also eliminate a potential source of liability in the always-contentious redistricting process.