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Bill Would Count Prisoners Differently in Redistricting

Resuscitating the 2011 redistricting battle, two lawmakers have filed bills requiring the state to count prisoners at their last home address rather than where they are incarcerated. They say it cheats urban districts out of representatives.

By Maurice Chammah, The Marshall Project
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Although inmates in Texas prisons are not able to vote, a long battle has been waged over whether they should count as residents for the purpose of redistricting.

State Rep. Eric Johnson, D-Dallas, filed a bill Thursday, HB 684, that would change the way prison inmates are counted when the state creates representative districts. State Rep. Harold Dutton, D-Houston, filed a similar bill, HB 329. He has been filing versions of the bill since 2001.

Both want to ensure that prison inmates are counted for the purposes of redistricting at their last residential address, as opposed to the prisons where they are incarcerated. The current method of counting prisoners where they are incarcerated, they said, cheats urban areas from which many prisoners hail out of representation, while unfairly favoring rural regions where prisons are located.

“It’s an inaccurate reflection of the population of the state,” Johnson said.

In 2011, the U.S. Census Bureau began identifying the locations of prisons and their populations, giving states the choice to count prisoners in the populations where the prisons sit. “Current Census residency rules ignore the reality of prison life,” wrote Census Bureau Director Kenneth Prewitt in a 2004 article for the New York University School of Law. “Incarcerated people have virtually no contact with the community surrounding the prison.”

Most Texas prisoners hail from urban counties, but they are incarcerated in rural areas. A handful of rural legislators, including state Reps. Byron Cook, Tim Kleinschmidt and John Otto all come from districts with large prisons and thus large populations of residents who can’t vote. Otto and Cook did not return phone calls requesting comment. Kleinschmidt declined to comment.

Dutton has said in the past that the current counting method cheats Harris County, where he is from, of a seat in the House, since so many prison inmates are from Houston. The method violates the "one person, one vote” standard in federal law, he has argued. According to current statistics from The Texas Tribune's Prison Inmates database, 26,758 prison inmates are from Harris County. Dallas County, where Johnson lives, has 17,609 inmates.

In the wake of the redistricting battle of 2011, Dutton sued the state over the issue, saying that the way Texas had counted prisoners did not square with the U.S. Constitution. Federal judges ruled against him.

Similar laws have been passed in New York and Maryland. Delaware and California will begin counting prisoners in their home districts after the 2020 census.

In the past, the House Research Organization has suggested an alternate solution to the issue: not counting prisoners at all.

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