Many state prison inmates in Texas, including people on death row, are eligible to vote 鈥� 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鈥檙e 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鈥檛 know this? You鈥檙e 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鈥檇 voted under this provision.
Jennifer Toon is the project director at , 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.
鈥淣obody's asking to do this because they have no idea that they can,鈥� she said.
The deadline to be registered is Oct. 7. . 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 , and some do. That鈥檚 because they are usually being detained before trial and, therefore, haven鈥檛 been convicted. Felons who are out of prison can also vote, once they鈥檝e .
Then there are felons who are fighting their convictions. State law says they, too, can vote, even if they are currently in prison 鈥� with caveats.
The Department of Criminal Justice鈥檚 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 鈥渕entally incompetent鈥� by a judge to register to vote from prison.
They also cannot have been 鈥渇inally convicted鈥� of a felony.
Asked to define this, prisons department spokesperson Amanda Hernandez said that 鈥渁 conviction on appeal is not considered a final felony conviction.鈥�
The Secretary of State鈥檚 spokesperson said this might be a bit more complicated.
鈥淲hile 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,鈥� Alicia Phillips Pierce told The Texas Newsroom.
According to criminal law experts, a conviction isn鈥檛 considered final until the defendant has exhausted their direct appeals and the court issues an official order called the 鈥渕andate.鈥� In practice, here鈥檚 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鈥檚 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鈥檚 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鈥檛 be able to legally cast a ballot, experts said.
Some states handle voting differently, said Bob Libal, senior organizer with criminal justice nonprofit the . 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鈥檛 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鈥檚 unclear how many of them are in direct appeals.
Pierce, with the Secretary of State鈥檚 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 .
Nearly 50,000 of the state鈥檚 current prison population were charged in one of four counties 鈥� 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 鈥渃onfined in jail or involuntary civil commitment鈥� as their reason for voting by mail and under 鈥渕ail my ballot to,鈥� they would give the prison鈥檚 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鈥檛 state prisoners in Texas voting?
The main reason incarcerated people may not be voting is probably because they don鈥檛 know they can, according to lawyers and voting rights experts. Fear is another roadblock to voting.
鈥淭his is utterly news to me,鈥� said Gretchen Sween, an attorney who represents clients on death row. 鈥淚t never even occurred to me any of them had the right to vote, and it should be investigated.鈥�
, 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鈥檝e been in prison.
Then, there鈥檚 the fear of making a mistake and winding up back in trouble.
鈥淚 think people are scared to vote if they have a felony conviction because they're not quite sure what will happen,鈥� said Press, who leads the university鈥檚 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鈥檚 top criminal court .
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鈥檛 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鈥檚 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.
鈥淚 don't think people realize that people inside of prisons can, and often are, politically engaged and care about voting,鈥� Press said. 鈥淚 can think of a couple of clients who are now out who probably would have, had they known.鈥�
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