Texas prisoners, including death row inmates, may be able to vote under little-known elections law

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Many state prison inmates in Texas, including people on death row, are eligible to vote — and may not even know it.

Under a little-known section of state elections law, felons who are actively appealing their convictions can legally cast a ballot, even if they’re currently behind bars.

There are 134,000 people incarcerated in state prisons, including 175 on death row. It's unclear how many of them may be eligible to vote. State officials do not track this data.

Surprised you didn’t know this? You’re not alone.

The Texas Newsroom interviewed defense attorneys, criminal law experts, voting rights advocates and formerly incarcerated people. Most did not know it was even possible for someone in state prison to vote. No one knew of someone who’d voted under this provision.

Jennifer Toon is the project director at Lioness Justice Impacted Women’s Alliance, a nonprofit for current and formerly incarcerated women. She thinks state prisoners would definitely take advantage of their right to vote if it were more accessible.

“Nobody's asking to do this because they have no idea that they can,” she said.

The deadline to be registered is Oct. 7. The last day to request a mail-in ballot is Oct. 25. Election Day is Nov. 5.

A spokesperson with the Texas Secretary of State, which helps administer elections, warned every case is unique and said incarcerated people should check with a lawyer before trying to cast a ballot.

Why can state prisoners in Texas vote?

Most people incarcerated in county jails can vote, and some do. That’s because they are usually being detained before trial and, therefore, haven’t been convicted. Felons who are out of prison can also vote, once they’ve completed their probation or parole.

Then there are felons who are fighting their convictions. State law says they, too, can vote, even if they are currently in prison — with caveats.

The Department of Criminal Justice’s offender orientation handbook says an inmate must be a U.S. citizen and resident of Texas who is at least 18 years old and cannot have been found “mentally incompetent” by a judge to register to vote from prison.

They also cannot have been “finally convicted” of a felony.

Asked to define this, prisons department spokesperson Amanda Hernandez said that “a conviction on appeal is not considered a final felony conviction.”

The Secretary of State’s spokesperson said this might be a bit more complicated.

“While a felony conviction on appeal may not be considered a final conviction, the terms could differ from case to case and an individual with questions should consult their lawyer about their particular case,” Alicia Phillips Pierce told The Texas Newsroom.

According to criminal law experts, a conviction isn’t considered final until the defendant has exhausted their direct appeals and the court issues an official order called the “mandate.” In practice, here’s how they said it would work:

John Doe is convicted of a felony and sent to prison. If he wants to appeal, he must do so within 30 days. If the appeals court upholds his conviction, John can appeal again to the state’s top criminal court. If he loses there, and John has no constitutional arguments for the U.S. Supreme Court, the mandate is issued and he is considered finally convicted.

This is when John would lose his right to vote. Depending on how busy the local court system is, this entire process may be over in a matter of months.

If John Doe is sentenced to death, his conviction is automatically appealed to the state’s top court. If he loses, and the U.S. Supreme Court also upholds his conviction, the mandate is issued. John can keep fighting, but he would lose his right to vote at this point.

Exhausting direct appeals in death penalty cases can take years.

Convicted felons who never appealed, or who appealed and lost, are not eligible to vote. People on death row whose convictions have been upheld by the U.S. Supreme Court also wouldn’t be able to legally cast a ballot, experts said.

Some states handle voting differently, said Bob Libal, senior organizer with criminal justice nonprofit the Sentencing Project. People convicted of felonies in Maine, Vermont and Washington, D.C., never lose their voting rights, even while incarcerated, he said.

How many state prisoners in Texas can vote?

So, how many people are eligible to vote inside Texas prisons? And is anyone actually exercising this right? The Texas Newsroom couldn’t find anyone who knew the answers.

Libal, with the Sentencing Project, estimates there are 455,000 people in Texas who are either currently incarcerated on a felony conviction or who are on felony parole or probation. It’s unclear how many of them are in direct appeals.

Pierce, with the Secretary of State’s Office, said eligible voters in prison should register in the county they lived in before they were locked up, not where they are currently incarcerated, and would vote by mail.

Nearly 50,000 of the state’s current prison population were charged in one of four counties — Harris, Dallas, Bexar and Tarrant.

People voting from prison in Harris County, which includes Houston, would request their mail ballot just like any other local voters who are not present in the county for the election, county election officials said. On their mail ballot application, the incarcerated person would check the box noting they are “confined in jail or involuntary civil commitment” as their reason for voting by mail and under “mail my ballot to,” they would give the prison’s address.

Tiffany Seward with the Travis County Tax Office, which handles voter registration, said she did not know if there were any state prisoners signed up to vote in the county that includes Austin. A local advocacy nonprofit that registers people at the county jail said it did not work with state prison inmates.

Why aren’t state prisoners in Texas voting?

The main reason incarcerated people may not be voting is probably because they don’t know they can, according to lawyers and voting rights experts. Fear is another roadblock to voting.

“This is utterly news to me,” said Gretchen Sween, an attorney who represents clients on death row. “It never even occurred to me any of them had the right to vote, and it should be investigated.”

Charles Press, a professor at the University of Texas at Austin School of Law, said many formerly incarcerated people have the misperception that they can never vote again if they’ve been in prison.

Then, there’s the fear of making a mistake and winding up back in trouble.

“I think people are scared to vote if they have a felony conviction because they're not quite sure what will happen,” said Press, who leads the university’s law clinic that works to exonerate people who have been wrongfully convicted.

This is what happened to Crystal Mason, a North Texas woman who filled out a provisional ballot when she was on supervised release on a federal charge. While her vote was not counted, Mason was convicted of voting illegally and sentenced to five years. Her conviction was overturned earlier this year because she said she was unaware that she could not vote, but local prosecutors are still pursuing her.

Last month, the state’s top criminal court agreed to review Mason’s acquittal.

Logistical issues also may keep people incarcerated in a state prison from voting.

Voting by mail can also be tricky, even for people on the outside. Someone voting from prison may need to factor additional time before the deadline. And if an inmate eligible to vote loses their appeal before Election Day, they could be accused of attempting to vote illegally if they don’t rectify the situation.

Incarcerated people with questions about how to vote should reach out via mail to the voter registrar in the county where they lived before prison were incarcerated or the Elections Division of the Secretary of State’s Office, the prisons department spokesperson said.

Even with these complications, lawyers and prisoner rights advocates do think incarcerated people would vote if they knew they were eligible.

“I don't think people realize that people inside of prisons can, and often are, politically engaged and care about voting,” Press said. “I can think of a couple of clients who are now out who probably would have, had they known.”

Disclosure: Texas Secretary of State and University of Texas at Austin have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.