Fixing prison-based gerrymandering after the 2010 Census: Maryland

50 State Guide, March 2010

Impact at the state level
Impact at the local level
Maryland law says a prison cell is not a residence
Pending legislation
Other solutions
Additional resources

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:

  • 18% of the population of House District 2B (near Hagerstown) consists of incarcerated people from other parts of the state. Padding this legislative district with the incarcerated people counted there by the Census in 2000, who cannot vote and are not a part of the local community, dilutes the votes of residents in other parts of the state. The state has decided, in effect, that 4 people who live next to the large prisons there should have as much representation as 5 people who live anywhere else in the state.
  • Baltimore City accounts for 12% of the state’s population, but 68% of its prisoners. The majority (83%) of the state’s prison cells are outside of the city.

Impact at the local level:

  • In Somerset County, a large prison is almost two-thirds of the population of the 1st Commission District drawn after the 2000 Census, giving each resident there nearly 3 times the influence of residents in other districts Using prison populations to enhance the weight of a vote in districts that contain prisons dilutes the votes of all other residents in the county.
  • 40% of Somerset County is African-American, but an African-American has never been elected to county office. The county settled a Voting Rights Act lawsuit in the mid-1980s and agreed to draw a majority African-American district. Unfortunately, a new large prison in the remedial district resulted in the African-American resident population being split among multiple districts. An effective African-American district could be drawn if the prison population had not been included in the Somerset population count.

Maryland law says a prison cell is not a residence:

  • In the 1994 case of Wamsley v. Wamsley, 635 A.2d 1322, the Maryland Court of Appeals held that to establish a domicile, a person must voluntarily abandon the intention to return to one’s previous community and intending to remain indefinitely in the new location.
  • The legal rules defining “domicile” is inconsistent with treating the incarcerated as residents of the community where their prison is located. As the U.S. District Court for Maryland states in Kissi v. Wilson, 2008 WL 7555488 (D. Md. 2008), “inmates usually retain the domicile they had prior to incarceration.”

Pending legislation (as of March 2010):

Other 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 Maryland should ask the Census Bureau for this change for 2020.

Additional resources:

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