Local governments across the country have struggled with whether prisoners ought to be included in political redistricting. The debate has intensified in Mississippi, where county governments are racing to redraw districts to meet qualifying deadlines.

With the recent release of fresh 2010 U.S. Census data, local officials are realizing inmate counts will have significant impact on who gets elected.

The census counts all prisoners — regardless of their originating home towns — as living in the district where their correctional institution is located, but a 2002 Mississippi attorney general’s opinion instructs counties to exclude such individuals for the purposes of redistricting.

In Mississippi, prisons are concentrated in the Delta counties, an area with a significant black population. It is unclear whether most counties are following the state attorney general’s instructions to exclude inmates in redistricting or the census’ policy of including them in the count, but such decisions impact whether counties are in compliance with the 1965 Voting Rights Act.

And that opens the door for possible challenges of redistricting plans, which require approval of the U.S. Justice Department.

For now, the Justice Department is declining to comment on the issue.

Mike Sayer, of the black civic group Southern Echo, said counting prisoners in such districts concentrates black voting power, possibly a violation of the Voting Rights Act, by creating what his group calls a “phantom” majority-minority district.

“When a large prison population is included in a district it can create the illusion of a majority-minority district,” said Sayer. “If most of those who are incarcerated are minorities and unable to vote then you may have a majority-minority district on paper, but perhaps not in reality.”

Candidates for county-level positions, such as board of supervisors and justice court judge, in most counties face a March 1 deadline to qualify. Carroll Rhodes, a lawyer in Hazlehurst, said 77 counties in Mississippi have experienced the population shifts necessary to require them to redraw the lines.

Prisoners in Mississippi are counted for legislative districting, and state lawmakers say Mississippi would risk losing federal dollars by excluding the prison population from those calculations.

But the real potential for voting strength distortion, some say, occurs on the county level where districts are smaller.

“It’s really the smaller levels of government where the impact is larger,” said Peter Wagner of the Prison Policy Initiative, which advocates for the Census Bureau to count prisoners in their home district, rather than the district containing the correctional facility.

“For the most part the counties that include prison populations don’t know that prisoners are in the data,” said Wagner. “They don’t notice or they don’t know that it’s legally possible or technically possible to fix this.”

Rep. Thomas Reynolds, D-Water Valley, who chairs the House Elections Committee, said that including prison populations in county redistricting tallies actually helps to preserve voting strength in those districts.

This argument provides the basis for criticism of “prison-based gerrymandering” in the Northeastern United States, where the problem tends to inflate the population of the largely white communities where the prisons are located, at the expense of the low-income city neighborhoods where many of the inmates originate.

In Mississippi counties such as Leflore and Sunflower that have prisons as well as a significant black population, Rhodes said the problem is more complicated.

He said that drawing a district that includes a large number of nonvoting black prisoners could artificially inflate the black population, creating a phantom minority-majority district while actually “cracking” the voting black population, or dividing them into separate districts, thus diluting their real voting strength. Rhodes said that such action would appear to comply with the Voting Rights Act on paper, but in reality would put counties at risk for a lawsuit.

“They could be taken to court for excluding (prisoners) in redistricting plans, but if they include them they have to draw them in such a way that they don’t include them in a marginal minority district,” he said.

Sayer said that a number of county residents and supervisors have contacted his group to ask how to treat prisoners when redrawing the lines.

“I don’t know that anyone is particularly clear about the consequences if they chose to defy the norm, which is to include the prison population, and draw plans without counting the prison population,” Sayer said. “Would the Justice Department pre-clear such a plan?”

Joyce Chiles, the board attorney for Leflore County, which has a federal prison, said her county did not include prisoners in the local redistricting plan.

“I believe, the information that we received, it was not counted,” she said.

David Wade, the senior planner with the Central Mississippi Planning & Development District, said the Department of Justice generally leaves it up to local decision-makers.

“In keeping with the spirit of the one-person-one-vote criteria, which is a Department of Justice criteria, I would think you would not want to count that population, considering most convicted felons can’t vote,” he said.

Wagner said he contacted all Mississippi counties with prisons in January to notify them of the 2002 state attorney general opinion asking them to exclude prisoners from their redistricting process, but failed to send a letter to Adams County, which is reportedly uncertain whether it will exclude the population of inmates at the Adams County Correctional Facility.

The roughly 2,000 inmates at the Corrections Corporation of America prison were counted in the recent census. Board of Supervisors Attorney Bobby Cox did not return a request for comment on whether the county will exclude the inmates when redrawing local districts.