Can a Virginia county exclude out-of-state prisoners from its population count for redistricting?

Plain-English summary

Pittsylvania County Attorney Hunt asked whether the county could exclude 985 Pennsylvania inmates housed at Green Rock Correctional Center from the county's population count for its 2011 redistricting. The inmates had been transferred from Pennsylvania to serve their sentences in Virginia and were expected to remain in Pittsylvania County until 2013.

The AG concluded the county could not exclude them. The 985 inmates were less than 2% of the county's roughly 61,414 residents, well below the 12% threshold Virginia law sets for excluding inmate populations.

The federal backdrop:

• The U.S. Constitution requires a decennial census of each state's population (Art. I, § 2).
• The opinion notes that the U.S. Supreme Court has concluded the Equal Protection Clause does not require states to use total federal census figures when drawing state or local district boundaries, so under federal law a state can exclude inmate populations in drawing districts.

In other words, federal law permits Virginia to exclude inmate populations from redistricting counts. But Virginia has chosen to exercise that flexibility only in a narrow way.

The Virginia statute:

• Local election districts must be composed of contiguous and compact territory, giving representation "in proportion to the population of the district" as nearly as practicable.
• Va. Code Ann. § 24.2-304.1(C). Governing bodies must reapportion local election districts every ten years using federal census figures. A locality with a state adult correctional facility may exclude the inmate population from that facility only if the inmate population (as determined by information from the Department of Corrections) exceeds 12% of the total population of the municipality on the date of the decennial census.

Applied to Pittsylvania: 985 inmates ÷ 61,414 population is well below the 12% line. The General Assembly simply has not authorized exclusion in this scenario. The AG drew no distinction between in-state and out-of-state inmates; the 12% threshold applies the same way to both. The opinion's framing focuses on the absence of authorization, not on the merits of prison-based gerrymandering policy.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The debate over "prison gerrymandering" (counting inmates where they are incarcerated rather than where they lived before incarceration) has continued to evolve at both the state and federal level. Several states have changed their inmate-counting rules for redistricting since 2011. Anyone analyzing a current redistricting plan should look at the latest version of § 24.2-304.1, any related statutes, and any subsequent litigation.

Common questions

Why 12%?

The 12% threshold is a line the General Assembly drew. The AG opinion does not explain the policy rationale; it just enforces the statute. The likely logic: a small inmate population does not meaningfully distort representation, but a population above 12% would create districts where most "residents" cannot vote and may inflate the political weight of the actual local voters.

Does it matter that these were Pennsylvania prisoners?

The opinion does not draw a distinction. Section 24.2-304.1(C) speaks in terms of inmates housed at a state adult correctional facility, not by state of origin. Federal census enumeration counts inmates where they are physically located, regardless of legal residence.

Could Pittsylvania exclude the inmates anyway?

Under § 24.2-304.1(C), no. The "may exclude" language only triggers when the threshold is crossed. Below the threshold, the locality is bound by the federal census figures.

What if the facility's population grows past 12% between censuses?

The statute uses the inmate population "on the date of decennial census," so the relevant snapshot is fixed. Subsequent growth would be relevant for the next decennial cycle, not retroactively.

Does this affect federal congressional districts?

No. § 24.2-304.1 governs local election districts. State legislative districts and federal congressional districts are governed by separate statutes.

Background and statutory framework

The constitutional anchor:

• U.S. Const. art. I, § 2. Decennial census requirement.

The state statute:

• Virginia law requires district-elected local bodies to draw districts of contiguous, compact territory giving proportional representation.
• Va. Code Ann. § 24.2-304.1(C). Reapportionment every ten years using federal census; localities may exclude state-facility inmates only if inmate population exceeds 12% of total municipal population.

The federal backdrop (the opinion stated this without naming a case): the U.S. Supreme Court has held that the Equal Protection Clause does not require states to use total federal census figures for state or local apportionment, so a state may exclude inmate populations.

The factual record:

• Pittsylvania County total population: approximately 61,414.
• Green Rock Correctional Center inmates: 985.
• Inmate share of county population: under 2%.
• Threshold for exclusion: 12%.

Citations

• Va. Code § 2.2-505
• U.S. Const. art. I, § 2
• Va. Code Ann. § 24.2-304.1(C)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/11-011-Hunt.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

March 1, 2011

J. Vaden Hunt, Esquire
County Attorney, Pittsylvania County
P.O. Box 426
Chatham, Virginia 24531

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Mr. Hunt:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether Commonwealth of Pennsylvania ("Pennsylvania") inmates housed at Green Rock Correctional Center ("Green Rock") are required to be included in Pittsylvania County, Virginia's ("Pittsylvania County") population for the purposes of its 2011 decennial reapportionment of local electoral districts.

Response

It is my opinion that the General Assembly has not authorized local governing bodies to exclude out-of-state prisoners housed in state adult correctional facilities from the locality's population for the purposes of the decennial reapportionment if the total population of inmates housed at the state adult correctional center does not exceed twelve percent of the locality's population.

Background

You relate that all of the population of Pittsylvania County stands at approximately 61,414. You also relate that the Green Rock inmate population of 985 were included in Pittsylvania County's population figures in the 2010 Census, and this inmate population constitutes less than two percent of Pittsylvania's population. The information that you provided indicates that all of the prisoners at the Green Rock facility were transferred to Green Rock after adjudication in Pennsylvania. The information provided indicates these prisoners will remain housed in Pittsylvania County until 2013.

Applicable Law and Discussion

Article I, § 2 of the United States Constitution directs the federal government to conduct a decennial census of the population of each state. The United States Supreme Court has concluded that Equal Protection Clause does not require states to rely on total population figures from the federal census when drawing district boundaries for state or local government office holders. For example, under federal law, a state can exclude inmate populations in drawing districts for state or local districts.

Virginia law provides that, if the local governing body's members are elected by district, "the district shall be composed of contiguous and compact territory and shall be so constituted as to give, as nearly as is practicable, representation in proportion to the population of the district." Section 24.2-304.1(C) provides that governing bodies must reapportion local election districts every ten years using the decennial census population figures provided by the United States Bureau of the Census as a basis for the municipality's population. This same clause allows local governing bodies to exclude inmate populations if the locality contains a state adult correctional facility, and the inmate population of such facility, as determined by information provided by the Department of Corrections, exceeds twelve percent of the total population of the municipality on the date of decennial census.

According to the facts you present, the Green Rock inmate population was included in Pittsylvania County's population in the 2010 United States census. At 985 inmates, this accounts for less than two percent of Pittsylvania County's estimated population of 61,414. This is below the twelve percent threshold required by § 24.2-304.1(C) to allow a local governing body to exclude inmates housed in a state adult correctional facility from Pittsylvania County's population for purposes of the decennial reapportionment.

Conclusion

Accordingly, it is my opinion that the General Assembly has not authorized local governing bodies to exclude out-of-state prisoners housed in a state adult correctional facility from the locality's population for the purposes of the decennial reapportionment if the total population of inmates housed at the facility does not exceed twelve percent of the locality's population.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General