Fixing prison-based gerrymandering after the 2010 Census: Michigan

50 State Guide, March 2010

Prison-based gerrymandering violates the constitutional principle of “One Person, One Vote.” The Supreme Court requires districts to be based on equal population in order to give each resident the same access to government. But a longstanding flaw in the Census counts incarcerated people as residents of the prison location, even though they can’t vote and aren’t a part of the surrounding community.

When legislators claim people incarcerated in their districts are legitimate constituents, they award people who live close to the prison more of a say in government than everybody else.

Impact at the state level:

  • The state’s prison population comes disproportionately from Detroit: Wayne County is home for 20.7% of the state, but 29.7% of its incarcerated people.
  • Four state senate districts drawn after the 2000 Census (districts 17, 19, 33 and 37) meet federal minimum population requirements only because they claim prisoners as constituents. Senate districts are supposed to contain about 261,528 people, but the 17th and 33rd districts each contain more than 7,000 prisoners.
  • Five house districts drawn after the 2000 Census (districts 65, 70, 92, 107 and 110) meet federal minimum population requirements only because they claim prisoners as constituents.

Impact at the local level:

  • In Michigan, nearly all counties with large prisons avoided distorting democracy by ignoring the prisoners in drawing the districts after the 2000 Census, whether the potential for distortion was very large or quite small. Statutory requirements for redistricting prevent state prison populations from skewing either county (Mich. Comp. Laws § 46.404(g)) or municipal (Mich. Comp. Laws § 117.27a (5)) democracy. These statutes provide that the district population cannot include anyone in a state institution who is not a resident of the city or county for election purposes.
  • In Lapeer, using the 2000 Census would have meant a district with 6% prisoners, but even there the county clerk told us that they excluded prisoners because the prisoners were “not really residents.”
  • Unless corrective action is taken, the new prison built in 2004 in Washtenaw County is likely to create significant prison-based gerrymandering issues after the 2010 Census because the Federal facility located in that county is not covered by the staute.

Michigan law says a prison cell is not a residence:

  • “An elector shall not be deemed to have gained or lost a residence … while confined in a jail or prison.” (Michigan Compiled Laws §168.11(2).)
  • Michigan law already requires that prison populations be excluded in city and county redistricting.

Solutions:

  • Ideally, the U.S. Census Bureau would change where it counts incarcerated people. They should be counted as residents of their home — not prison — addresses. There is no time for that in 2010, but Michigan should ask the Census Bureau for this change for 2020.
  • After the 2010 Census, the state and its local governments should, to the degree possible, count incarcerated people as residents of their home communities for redistricting purposes. Where that is not feasible, incarcerated people should be treated as providing unknown addresses instead of being used to pad the legislative districts that contain prisons.

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