Prisoners Don't Vote, but They Sometimes Count

Texas prison inmates can’t vote, so most counties ignore them. But they can change the value of your votes for Congress and the state Legislature.

In Anderson County — and in Bee, Karnes or Walker counties — a significant part of the population is in prison. State prisoners in each of those places account for at least 19 percent of the total county population. Each Texas county has four county commissioners, elected from districts of equal size.

Inmates can’t vote, so counties can ignore the prison populations when they draw those districts. For redistricting purposes at the county level, the prisoners simply don’t exist.

The state, on the other hand, counts them, adding to the populations of districts that have large prisons. Because rural legislators like Reps. Jose Aliseda, Byron Cook, Tim Kleinschmidt and John Otto, all Republicans, have prisons in their districts, they each have big populations of ineligible voters — criminals who aren’t included in county maps, who can’t vote, and who don’t really have a stake in local affairs.

And maybe they shouldn’t: The prisoners don’t come from those counties. They tend to come from the state’s populous counties, like Harris and Dallas. And in Harris County’s case, not counting them as residents means one less state representative in the local delegation.

As far as state elections are concerned, Houston criminals are counted as Houston residents unless they’re in prison — even though they’ll be returned to their home county upon release.

Other states — like New York and Maryland — have relatively new laws that require prisoners to be counted where they lived before prison. Texas uses a kind of bed check, counting them where they sleep.

It’s a math problem — with consequences. To draw legislative districts, the state divides the population by the number of House seats, 150, and draws maps with districts of approximately equal size. Harris County, without its criminals, has enough people for 24 districts. If the 29,798 Houstonians currently incarcerated throughout the state were included in the count, the county would have enough people to justify the 25 districts it currently has. On the new maps recently approved by the Republican-dominated Legislature, lawmakers drew Reps. Scott Hochberg and Hubert Vo, both Democrats, into the same district, knowing only one can survive the election year. The additional seat could rescue both men.

Of course, we’re talking about felons — not voters. But the state’s political redistricting maps are drawn from overall populations, not from voter populations. And the prison thing skews the results. Rep. Harold V. Dutton Jr., D-Houston, said the counting method cheated Harris County out of a House seat. He sued — his was one of several claims made against the new political maps — saying that the prison padding makes it easier to get elected in those rural districts, since the politicians don’t have to win over as many people to be elected. “That’s not fair,” he said.

Dutton thinks the practice violates the “one person, one vote” standard in federal law, and said the Legislature approved the new maps because the victims were Democrats. (It’s worth pointing out that 10 years ago the House voted on a map with only 24 seats in Harris County and that Dutton voted for it; the 25-seat plan was drawn by the Legislative Redistricting Board, which added a Republican seat.)

David Richards, a lawyer representing Dutton and others in the federal redistricting case, said that changing where prisoners were counted would require changes in the state House map and “would undo the entire congressional map,” which requires each of the state’s 36 districts to be approximately the same size.

Federal judges in Texas ruled against them this month, though they can still appeal. According to the Texas Constitution, the federal census sets the numbers for state maps, and the census counts prisoners in their cells.

As a practical matter, the challenge would require an overhaul of the state House and Congressional maps and some significant nips and tucks to the state Senate map.

Instead, the courts dodged the question. Prisoners, when they count at all, will count as prisoners.

[Editor's note: An earlier version of this story included Virginia in the list of states requiring prisoners to be counted at their homes and not in their prisons; their law allows some counties to exclude prisoners from their counts.]