Fixing prison-based gerrymandering after the 2010 Census: Texas

50 State Guide, March 2010

Prison-based gerrymandering violates the constitutional principle of "One Person, One Vote." The Supreme Court requires districts to be based on equal population in order to give each resident the same access to government. But a longstanding flaw in the Census counts incarcerated people as residents of the prison location, even though they can’t vote and aren’t a part of the surrounding community.

When legislators claim people incarcerated in their districts are legitimate constituents, they award people who live close to the prison more of a say in government than everybody else.

Impact at the state level:

  • In two districts, (District 13 near Walker County and District 8 near Anderson County) almost 12% of each district’s 2000 Census population is incarcerated. Effectively each group of 88 actual residents in these two districts is given as much political clout as 100 people elsewhere in Texas.
  • Crediting all of Texas’ incarcerated people to a few locations enhances the political clout of the people who live near prisons, while diluting voting power of all other Texans.

Impact at the local level:

  • Anderson, Bee, Brazos, Childress, Concho, Coryell, Dawson, Grimes, Karnes, Madison, Mitchell, Pecos, Walker, and Wood Counties excluded the prison populations when drawing County Commissioner precincts after the 2000 Census, thereby avoiding giving extra representation to the precinct that contain the prisons at the expense of all other county precincts. In Concho County, removing the prison population avoided drawing a precinct that was entirely incarcerated prisoners.
  • Willacy County drew a Commissioners Court precinct that was 20% incarcerated, giving some residents more influence than others. The expansion of the detention facility in the county during the 2000s will make this problem even larger after the 2010 Census.
  • More research needs to be done, especially in the following counties: Bowie, Brazoria, Dickens, Duval, Falls, Fannin, Freestone, Frio, Garza, Gray, Hale, Hartley, Houston, Howard, Jack, Jefferson, Jones, La Salle, Limestone, Live Oak, Polk, Potter, Reeves, Rusk, Scurry, Stephens, Swisher, Terry, and Tyler as these counties contain large prisons relative to their actual population. Unless the prison populations were removed from the redistricting base after the Census, they will have one or more districts that are significantly padded with non-resident prison populations. See the Democracy Toolkit for a suggested research methodology.

Texas law says a prison cell is not a residence:

  • “‘[R]esidence’ means domicile, that is, one's home and fixed place of habitation to which one intends to return after any temporary absence.... A person who is an inmate in a penal institution… does not, while an inmate, acquire residence at the place where the institution is located.” (Texas Annotated Code §1.015(e).)

Solutions:

  • Ideally, the U.S. Census Bureau would change where it counts incarcerated people. They should be counted as residents of their home — not prison — addresses. There is no time for that in 2010, but Texas should ask the Census Bureau for this change for 2020.
  • After the 2010 Census, the state and its local governments should, to the degree possible, count incarcerated people as residents of their home communities for redistricting purposes. Where that is not feasible, incarcerated people should be treated as providing unknown addresses instead of being used to pad the legislative districts that contain prisons.

Additional resources:

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