Updated August 4, 2021 at 7:42 AM ET
In Texas, there are currently two high-profile cases of residents facing prison time for alleged illegal voting.
The state's Republicans, in their stalled election overhaul, include a provision that could help keep people out of such trouble. But the Texas legislation — like measures in other states — also would create a number of new crimes related to voting.
Some Democratic critics say that by crafting more ways for Texas voters to unknowingly break the law, Republicans are trying to create the appearance of widespread voter fraud.
Crystal Mason and Hervis Rogers
One of the high-profile cases is that of Crystal Mason in Tarrant County. Several years ago, Mason was released from prison after a conviction for tax evasion. Shortly after, a big election rolled around and she decided she should vote.
Alison Grinter Allen, Mason's attorney, says that at the time, Mason had no idea she couldn't vote because she was on supervised release and technically hadn't finished her sentence yet.
"When she was released from federal prison, she was never told that she would be ineligible to vote for any period of time," Allen says.
She says Mason wasn't on the voter rolls, so she voted on a provisional ballot. And that ballot was eventually not counted because she wasn't eligible to vote. So Allen says everything worked as it should have — apart from the arrest.
"And the idea that she was committing fraud never occurred to her, because she voted in her own name, with her own license, she only voted once, she had no attachment to any particular candidate. She wasn't a part of any campaign," Allen says. "It just wasn't a major event in her life. So she was absolutely shocked when she was arrested."
A very similar thing happened to Hervis Rogers, who got national attention last year for waiting a grueling six hours to vote in Houston during the presidential primary.
Rogers had been released from prison at the time, but his sentence also wasn't technically over when he voted. He has said he had no idea he wasn't eligible to vote.
State Rep. John Bucy, a Democrat from Austin, has been pushing for measures that would prevent these kinds of situations. Specifically, a provision would require courts to tell people being released how their felony conviction will impact their right to vote in Texas. Another would make it clear to prosecutors that people can't get in trouble if they didn't know they weren't eligible to vote.
"All we are trying to do with this language is very much clean up the language so there is no misinterpretation by any [district attorney] who wants to try to make a name for themselves," he says, "which is what happened in Crystal Mason's case."
Texas bill would create new voting crimes
Some of Bucy's proposed measures are now part of a sweeping voting bill Republicans in Texas are trying to enact. Senate Bill 1, which passed in the Texas Senate, is currently at a standstill, though.
That's because Bucy and more than 50 of his Democratic colleagues in the Texas House are in Washington, D.C., denying Republicans a quorum. This is an effort to specifically block the voting legislation from passing in Texas.
Bucy says he is concerned that despite his provisions, the bill would actually create a slew of new ways to criminally penalize voters when they make mistakes.
"There are increased crimes and penalties throughout this bill just for participating in the process, and there is not explanation as to why," he says.
One example is a provision that would create new requirements for people who are assisting voters. Among other things, they would have to take an oath swearing they didn't encourage or coerce a voter into choosing them to help. They'd also have to swear they won't influence the voter's decisions in any way.
Thomas Buser Clancy with the ACLU of Texas says the legislation would make it a state jail felony if they violate that oath.
"But there is no requirement that that violation be knowing or with an intent to deceive," he says. "So, all of a sudden, you have a situation where people are just trying to help their neighbor, their mom or dad, or even their community members, are going to be staring down a state jail felony if they make innocent mistakes."
The bill also contains new rules and penalties for people who help someone voting by mail. Republicans say this is an effort to curb "ballot harvesting" in Texas, which is when third parties collect and turn in ballots for others. Republicans have said this practice often leads to fraud.
"How much fraud is OK?"
State Sen. Bryan Hughes, the sponsor of SB 1, says he has seen examples of this type of fraud in his own backyard, which is why he is pushing for stricter rules.
"This bill makes it easier to vote and harder to cheat," he said during a recent press conference. "Is there voter fraud? Of course there is. That is why I have a county commissioner in my district under indictment, out on bail, for mail ballot fraud. This is happening all over the state."
Studies have shown that voter fraud is exceptionally rare. State election officials in Texas have also told lawmakers that elections in the state are secure.
But Hughes and others say even anecdotal evidence of voter fraud is enough of a reason to make changes to the state's election code.
"We don't know how pervasive it is," he says, "But how much fraud is OK? Well, none is OK."
Most prosecutions target people of color, report says
Bucy, the Austin Democrat, says he thinks there's another reason Republicans want more alleged voter fraud cases on the books.
"When people make honest mistakes, it will result in more crimes, which will then bring the appearance of more voter fraud happening," he says, "which will play into Donald Trump's big lie to try to create this fraud and fear around why we need to continue to restrict people's access to the ballot box."
Voting groups are also worried that further criminalizing voting in Texas will disproportionately affect communities of color. Mason and Rogers, for example, are both Black.
According to a study from the ACLU of Texas published in March, more than 70% of voter prosecutions conducted by the Texas attorney general's Election Integrity Unity have targeted Black and Latino voters.
This is part of why Democrats are blocking this GOP voting bill, even though it could prevent what happened to Rogers and Mason from happening to others.
Allen, Mason's lawyer, says she thinks the problem is ultimately bigger than what happened to Mason and Rogers.
"What we need is to keep the criminal law away from voting issues," she says. "Unless someone is voting more than one time, unless someone is staging a coordinated campaign to affect elections, I really don't think that the criminal law should apply to individuals who make errors."
Copyright 2021 KUT 90.5
