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awarded the extra seat, since North Carolina had only 107.40 Alternatively, if all residents
living overseas were excluded for purposes of reapportionment, Utah, with just 3,545
residents working abroad as federal employees, still would have been awarded the seat,
given that North Carolina had 18,360 residents in that category.
While in this instance the effect on the overall equality and level of representation in the
United States is quite small, the extra seat would have increased Utah’s modest influence
in the House by 25 percent and its impact on presidential elections by about 18 percent.
Furthermore, to the extent that the interests of the 4.1 million non–federally employed
American citizens currently residing abroad are different from those who are counted in
the census, not counting them distorts the substantive representativeness of American
democracy to some degree.41
A related concern is the Census Bureau practice of counting prison inmates where they are
incarcerated rather than in the inmate’s previous place of residence. A disproportionate
number of state prisons are located in sparsely populated areas, while the two million
inmates they house are predominately from densely populated cities in other electoral
districts. Because inmates are not permitted to vote (in all but two states), the ballots cast
by citizens of rural districts with large prison populations are effectively given more weight
than those of voters in other districts. Fifteen percent of Montana’s 85th state House
district, for instance, are incarcerated. One county in Louisiana, a second in Florida, and a
third in Texas get more than 30 percent of their population totals from prisons.42
In New York, 91 percent of the state’s prisons are located upstate, but 66 percent of the
inmates are from New York City.43 The seven New York State Senate districts with the
largest prison populations are rural upstate districts represented by conservative senators,
who vote quite differently than those from the city. This pro-rural bias is further
exacerbated by the fact that New York City is systematically underrepresented in the
Senate, with each of the 29 districts in its five boroughs containing between 1.69 percent
and 4.83 percent more individuals than average. If the state’s prison population were
excluded, each of the seven rural upstate districts noted above would have between 5.8
and 6.8 percent fewer people than the average district, and all seven of the districts in the
Democratic-dominated borough of Queens would have 4.1 percent more people than
average. That would raise the deviation between the most and least populous districts
beyond the 10 percent limit set by the Supreme Court. It should be noted that in the New
York State Assembly, the lower house of the legislature, the situation is somewhat
reversed. New York City is overrepresented by just under one percent; if the prison
population is omitted, this bias drops to one-half of one percent.

The Electoral College

Another institution that affects the representative character of American government is the
presidential Electoral College, adopted in 1789 as part of the grand federal bargain that is
the U.S. Constitution. The number of electors in each state is equivalent to the number of
representatives a state has in both the Senate and the House of Representatives. As a
result, the states with smaller populations receive added weight, and the 10 largest states
have 35 fewer electors than they would if the nation’s 538 electoral votes were distributed
purely on the basis of population; California alone has 10 fewer electoral votes than it

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