The Census Bureau’s decision to credit thousands of disenfranchised non-residents to the Census blocks with prisons creates serious problems for Wisconsin. This problem need not exist in the future, as the state can lobby the Census Bureau for change, or fix the data itself.
The U.S. Supreme Court requires states to draw new districts each decade on the basis of population, but states are not required to use the Census. The Census Bureau, which collects its data at great cost, wants states to use its data and has historically been responsive to the needs of its data users when deciding how to count the population.
The ideal place to fix the prisoner miscount is at the U.S. Census Bureau. The method of counting other special populations has changed numerous times, in each case responding to changing demographics and needs. For example, when more college students began studying far from home, the Census policy changed in order to more accurately reflect American living situations. The Census Bureau considers state and local redistricting to be the second most important use of its data and should therefore be responsive to requests for a new way of counting prisoners.
Wisconsin state and local officials should lobby the Bureau directly and endorse the recent letter sent by New York State Senator Eric Schneiderman and St. Lawrence County New York Legislator Tedra Cobb. The letter asks the Census Bureau to count prisoners as residents of addresses outside the facility, and if insufficient time remains before the 2010 Census to implement that change, that the Bureau publish a special version of the PL94-171 redistricting data file for the prison population. Such detailed block-level counts of prison populations would assist the state and its counties in identifying and removing the prison populations prior to redistricting.
While states must redistrict on the basis of actual population, the U.S. Constitution does not require states to use the federal census for its own redistricting. Wisconsin can fix the Census data by creating a special state-level census that collects the home addresses of people in prison and then adjusts the U.S. Census counts prior to redistricting. Legislation with these goals is currently pending in New York, Illinois, and Michigan, and is patterned on how Kansas adjusts the federal census counts of military and students.
Many Wisconsin cities and counties with prisons drew districts based on the Census and thus diluted the votes of residents who do not live next to the prisons. While many of these cities and counties felt obligated to use the Census when drawing the districts, they may use other sources of data or correct the Census data to remove the prison population.
Mississippi, Colorado and New Jersey require counties with prisons to remove the prison population prior to redistricting, and Virginia law encourages it. Many other counties decide to exclude the prison population prior to redistricting. In Essex County, New York, the county Board of Supervisors enacted a law that mandated excluding the prisons when apportioning its government because “the inclusion of these federal and state correctional facility inmates unfairly dilutes the votes or voting weight of persons residing in other towns within Essex County.” 23]
In Michigan, nearly all counties avoided distorting democracy by ignoring the prisoners in drawing the districts, whether the potential for distortion was very large or quite small. Gratiot County modified data to avoid creating a district that would have been 50% prisoners. In Lapeer, using the 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.”
If the U.S. Census and the state of Wisconsin fail to change how prisoners are counted in the next Census, counties and cities with prisons should remove the prison populations from their redistricting data prior to redistricting. This would ensure that each resident is given the same access to local government, regardless of whether she or he lives next to a large prison.
 In Bethel Park v. Stans, 449 F. 2d 575 (C.A. 3, 1971) the city of Philadelphia and a Pennsylvania congressman sued the Census Bureau for counting military personnel, students and prisoners at their temporary addresses instead of their home addresses, because the plaintiffs feared a loss of representation. The court stated that “Although a state is entitled to the number of representatives in the House of Representatives as determined by the federal census, it is not required to use these census figures as a basis for apportioning its own legislature.” Bethel Park v. Stans, 449 F. 2d 575, 583 (C.A. 3, 1971). Two years later, when faced with a similar issue, the Supreme Court rejected Virginia’s argument that it was compelled to use the Census Bureau’s assignment of residences to military personnel when drawing state legislative districts. Mahan v. Howell, 410 U.S. 315, 331 (1973).
 New York Senate Bill 2754 is the ideal version of this legislation as it includes a specific provision that would apply the census adjustment not only to senate and assembly districts, but to county districts as well. The bill was first introduced by Senator Schneiderman on February 25th, 2005.
 Illinois House Bill 7338 was introduced by Rep. Arthur Turner on October 22nd, 2004.
 Michigan House Bill 4395 was introduced by Reps. Lemmons, Young and Gonzales on June 19th, 2007.
 In Kansas, “Senatorial and representative districts shall be reapportioned upon the basis of the population of the state adjusted: (1) To exclude nonresident military personnel stationed within the state and nonresident students attending colleges and universities within the state; and (2) to include military personnel stationed within the state who are residents of the state and students attending colleges and universities within the state who are residents of the state in the district of their permanent residence.” KS CONST. art. 10 § 1.
 Baraga, Branch, Chippewa, Gratiot, Ionia, Jackson, Lapeer, Lenawee, Manistee, Marquette, Montcalm, and Muskegon Counties all draw county legislative districts without prisoners. Luce County last updated its districts in 1992, before the prison was built. Washtenaw and Saginaw Counties drew legislative districts that contain the prison populations.