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Nessel won't weigh in on how prisoners are counted during redistricting

Beth LeBlanc
The Detroit News

Michigan Attorney General Dana Nessel's office has declined a request from a Democratic state senator seeking a formal opinion on how prison populations are counted during the redistricting process. 

Nessel's office on Tuesday referred Sen. Jeff Irwin of Ann Arbor to the Michigan Independent Redistricting Commission's general counsel for questions on the policy and noted the office of the Democratic attorney general didn't weigh in on matters "that may become the subject of litigation."

"After researching and discussing the complexities and implications of the question you raise, we have determined that issuing an opinion of the Attorney General is not appropriate at this time," wrote John VanDeventer, chief legal counsel for Nessel's office.

Michigan redistricting commissioner Rebecca Szetela, left, a non-affiliated member, listens to citizens during the public comments portion of a recent redistricting meeting in East Lansing.

At issue is whether the state's nearly 38,000 prisoners recorded in the 2020 census should be counted as residents of the community hosting the prison or be counted as residents of the communities where they lived prior to incarceration. 

For redistricting purposes, Michigan has counted inmates as members of the community hosting the jail for decades. But opponents have pushed back against the policy they've dubbed "prison gerrymandering," arguing that the prison populations artificially inflate rural populations.

Inmates serving a sentence are not allowed to vote during incarceration. So communities such as Ionia, Jackson or the U.P.'s Kincehloe have potentially thousands more residents boosting their numbers but never voting.

The redistricting commission, which finished draft Senate district maps Wednesday, continues to follow U.S. Census policy, which counts the prison population based on where the prison is located, commission spokesman Edward Woods said. 

Woods argued that only the U.S. Congress or the state Legislature had the authority to change the way prison populations are counted.

Irwin disagrees and had hoped an opinion from the attorney general's office would "embolden" the commission to change the way its 13 members consider prison populations. He argued Thursday they still could change course. 

"It’s a real voting rights issue when a vote in one district counts more than a vote in another district," Irwin said. "When you allow prisons to skew the populations of these districts to the tune of thousands of people, that can have an influence on the political power of the state.”

In his Aug. 31 letter to Nessel, Irwin cited state law that prohibits the prison population from being counted in local county and municipal reapportionment procedures. He also noted a separate law that says electors cannot gain or lose a residence "while kept at any state hospital at public expense or while confined in a jail or prison."

The senator argued that, because the criminal justice system has had a disproportionate impact on people of color and in urban areas, it's likely that rural areas are profiting from the extra population while urban areas' representation is diminished. He noted that other states have decided to count prisoners as residents of their pre-incarceration communities, and the U.S. Census Bureau has provided them a tool to aid in that process.

"The practical effect of this redistribution of voting power is not random," Irwin said in his letter. "Prison gerrymandering results in less representation for people of color and greater representation for rural populations that host prisons."

Sen. Sylvia Santana, D-Detroit, and Rep. Sarah Anthony, D-Lansing, introduced legislation earlier this year that would have counted prisoners by the pre-incarceration residence, but the legislation never received a hearing.