Federal Census policy breaks Texas’s democracy — state lawmakers can fix it

Texas’s redistricting data was once again skewed after the 2020 Census; the state needs to take action to fix the issue for 2030.

by Aleks Kajstura, September 30, 2025

Everyone in Texas is supposed to have an equal voice in their government’s decisions, but an outdated and misguided Census Bureau policy that counts incarcerated people in the wrong place gives a few residents of the state a megaphone. It is a problem known as prison gerrymandering, and Texas lawmakers can fix it.

Texas blindly follows outdated bureaucratic federal policy

Every ten years, when the Census Bureau conducts its official tally of the nation’s population, it incorrectly counts incarcerated people as residents of prison cells rather than in their home communities. This is despite the fact that they usually are not from the prison town, have no family or social ties there, likely won’t stay there for long, and state residence law says they’re not residents there. When state officials then use that incorrect Census data in the legislative redistricting process, they inadvertently inflate the populations of those areas — in violation of constitutional principles of equal representation. This gives residents of state legislative districts that contain correctional facilities a particularly loud voice in government, allowing them to have an outsized influence on debates about immigration enforcement, property taxes, schools, gun control, and more, at the expense of nearly every other person in the state.

To ensure equal representation, states across the country have taken steps to fix this problem that the Census Bureau created. But, Texas is one of the remaining states still suffering from this “prison gerrymandering.” While the 2030 Census count is still years away, Texas needs to act now to avoid prison gerrymandering the next time it redraws its districts.

Prison gerrymandering significantly distorts Texas’s state legislative districts

In Texas, there are two state House districts that powerfully illustrate how prisons distort district populations and give some residents a louder voice in government as a result of prison gerrymandering.

In these two House of Representatives districts —districts 12 and 8 — correctional facilities account for a significant portion of the population. In District 12, for example, correctional facilities make up 10% of the population. That means that just 90 residents of that district have as much political clout as 100 residents in other districts. That imbalance in representation comes from the state choosing to redistrict based on Census numbers that don’t match the reality of where people live.

These two districts are the most prison-gerrymandered state legislative districts in Texas. Large chunks of their population are made up of prisons that contain people from other parts of the state, instead of local residents. State facilities regularly contain people who are incarcerated far from home, have no ties to the communities where the facilities are located, and are moved regularly between facilities for administrative convenience.

Similarly, immigration detention facilities also skew Texas’s district populations beyond those districts highlighted above. Of the 20 largest U.S. Immigration and Customs Enforcement (ICE) facilities in the country, eight are in the state, leaving Texas residents’ access to equal representation uniquely vulnerable to the ebb and flow of federal confinement policies. The U.S. Constitution is clear: all residents — regardless of their legal status — must be counted by the Census Bureau every ten years. The question isn’t whether they should be counted but where. Most people detained in immigration facilities in Texas spend less than two weeks in that facility, so it makes no sense to count them as if they were residents of the town where the facility happens to be located on Census Day.

Simply put, being incarcerated in a specific facility doesn’t make someone a resident of the surrounding district.

Prison gerrymandering disproportionately harms Texas’s Black residents

Prison gerrymandering reduces the political power of nearly all Texas residents by allowing a few districts with large correctional facilities to claim residents from all over the state. It particularly harms Black people and enshrines the racial inequities of mass incarceration into the state’s legislative districts.

In Texas, like across the country, mass incarceration has a disproportionate impact along racial lines. In Texas, Black residents are incarcerated at significantly higher rates and, therefore, are counted in the wrong place more often than Texas’s white residents.

Black residents make up less than 12% of the state population, but 33% of people in prisons and 28% of people in jails.

Counting incarcerated people in the wrong place adds up. Just in the two districts highlighted above, over 13,000 Black people were counted in the wrong place. This means that the Census Bureau policies are effectively silencing the voices of a large portion of the state’s Black residents.

Texas law says a prison cell is not a residence. Census Bureau policy disagrees

Not only does the Census Bureau’s redistricting data cause prison gerrymandering, it also doesn’t comply with Texas law. The state’s statute on voting residence — determining where someone is represented — is clear that being incarcerated does not make you a resident of the facility location:

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).)

In fact, just being present in any place doesn’t make you a resident there. The statute continues, explicitly requiring an intent to lose or gain residence:

(a) In this code, “residence” means domicile, that is, one’s home and fixed place of habitation to which one intends to return after any temporary absence.

…

(c) A person does not lose the person’s residence by leaving the person’s home to go to another place for temporary purposes only.

(d) A person does not acquire a residence in a place to which the person has come for temporary purposes only and without the intention of making that place the person’s home.

(Texas Annotated Code § 1.015)

Being held in a correctional institution simply does not change your residence. And most incarcerated people intend to return home. Incarcerated people don’t generally stay in the area of the prison after their release and almost always go back to the communities they came from — if not the exact address they lived at before their arrest. So, under Texas law, they aren’t residents of the facility location.

Instead of following state law, though, the Census Bureau follows its own “residence rule” to choose where to count incarcerated people — where they “live and sleep most of the time.” But it doesn’t even follow this rule properly when it comes to counting incarcerated people.

The Census Bureau counts incarcerated people at the location of the facility where they happen to be held on Census Day under the mistaken belief that that is where incarcerated people “live and sleep most of the time.” The facts, however, do not support its interpretation of its own definition of residence. It is well-established that in the modern era of mass incarceration, incarcerated people do not “live and sleep most of the time” at the facility where they are held on any given day (including Census Day). Nationally, 75% of people serve time in more than one prison facility, and 12% of people serve time in at least five facilities before returning home.

Representation in local government is also harmed by prison gerrymandering

The impact of prison gerrymandering is most clearly visible at the small scale: city and county governments. With smaller districts at the local government level, even a single facility can have a tremendous impact on the redistricting process.

For example, after the 2020 Census, the city of Lockhart included the 1,172 people counted at the state’s Lockhart Unit as if they were residents of City Council District 1. As a result, 68 people in District 1 have the same political power on the City Council as 100 people in every other district.

Recognizing the problems created by the Census Bureau’s data, most places in Texas that have significant correctional facility populations have already started taking matters into their own hands to avoid prison gerrymandering.

Of the 65 cities, counties, and school districts in Texas that contained large correctional facilities during the 2010 redistricting cycle, the Prison Policy Initiative found that 56 of them avoided prison gerrymandering,¹ while only 9 let the Census Bureau’s counts skew their residents’ representation in local government.²

Texas’ local governments are not unique; facing these absurd distortions in representation, local governments across the country are taking matters into their own hands and rejecting the Bureau’s way of counting incarcerated people,³ even when states fail to act.

In Texas, like across the country, local governments have found that adjusting redistricting data to avoid prison gerrymandering is quite easy. However, the state should provide a more efficient and complete solution for its local governments. Although it is not fair that the state has to correct for this federal issue, the state is in a better position to take on that burden than each individual locality.

Nationally, state and local governments are addressing the problem, but the Texas legislature is lagging behind

Over the course of the last few decades, over 200 local governments and a growing number of states have taken action on their own to fix this problem. Nearly half of the US population now lives in a place that corrects redistricting data they receive from the Census to avoid prison gerrymandering.

States that have ended prison gerrymandering on their own include deep “blue” states like California, “purple” states like Maine and Pennsylvania, and deep “red” states like Montana — where prison gerrymandering-reform legislation received wide bipartisan support. But Texas is falling behind and letting the state’s democracy be skewed by an outdated federal system.

Texas needs to take action now

Adjusting redistricting data to avoid prison gerrymandering is now a well-tested strategy with a proven track record. In fact, the bipartisan National Conference of State Legislatures called this effort “the fastest-growing trend in redistricting.” Texas can now confidently pass legislation to count incarcerated people at home for redistricting purposes. Other states have already been successful in these efforts, paving the way for Texas. And the state would have the benefit of refining its approach based on lessons learned by states that have gone through the process before. And it is easier than ever for states to act; even the Census Bureau is starting to acknowledge the problem and help.

2030 may seem far away, but other states have learned that the earlier that reforms are put in place, the less expensive, easier to produce, and more accurate the final redistricting data becomes. Every state has a different legislative approach to ending prison gerrymandering, but as a practical matter, this model bill, prepared by a coalition of civil rights, voting rights, and criminal justice organizations, is a great place to start. It provides clear guidance on how this data should be collected, by whom, and how it will be used for the redistricting process.

The Census Bureau is unlikely to change its policies about how to count incarcerated people in time for the 2030 Census, meaning that unless Texas acts quickly, the state will once again be driven into prison-gerrymandering their legislative districts.

Texas needs to end prison gerrymandering now.