III. Legislative and Other Reforms
Four states have recently passed legislation that will count incarcerated people at their homes for redistricting purposes. Maryland and New York passed legislation effective for the 2010 round of redistricting. Delaware passed similar legislation although the state subsequently postponed implementation until 2020. Similarly, California passed a bill that will take effect in 2020.
The New York legislation applies to state legislative, county, and municipal governmental redistricting. The Maryland legislation is similar, but also applies to Congressional redistricting. The Delaware legislation applies only to state legislative districting. The 2008 amendments to the California Constitution transfer redistricting authority to the Citizens Redistricting Commission, so the California law asks the Citizens Redistricting Commission to deem each incarcerated person as residing at his or her last known place of residence, rather than at the institution of his or her incarceration when drawing future districts, and then mandates that the Department of Corrections and Rehabilitation provide the necessary data to the Citizens Redistricting Commission.
As discussed above, the greatest impact of prison-based gerrymandering is on county and municipal governments where a single prison population can easily make up the majority of a local government district. More than 100 counties and municipalities independently chose to reject the Census Bureau's prison miscount after the 2000 Census and drew districts without including the prison populations. In addition, in several states, including Michigan, Colorado, and New Jersey, exclusion of incarcerated populations is mandatory according to state statutes, and in Mississippi the Attorney General instructs counties to exclude the prison populations when redistricting:
[I]nmates under the jurisdiction of the Mississippi Department of Corrections as well as inmates of local jurisdictions in local jails . . . are not deemed residents of that county or locality, as incarceration cannot be viewed as a voluntary abandonment of residency in one locale in favor of residency in the facility or jail. . . . Such inmates should not be used . . . for redistricting purposes by virtue of their temporary presence in a detention facility or jail in the county, unless their actual place of residence is also in the county.