This continues to be an appalling travesty.
When Crystal Mason got out of federal prison, she said, she “got out running.”
By Nov. 8, 2016, when she’d been out for months but was still on supervised release, she was working full-time at Santander Bank in downtown Dallas and enrolled in night classes at Ogle Beauty School, trying, she said, to show her children that a “bump in the road doesn’t determine your future.”
On Election Day, there was yet another thing to do: After work, she drove through the rain to her polling place in the southern end of Tarrant County, expecting to vote for the first female president.
When she got there, she was surprised to learn that her name wasn’t on the roll. On the advice of a poll worker, she cast a provisional ballot instead. She didn’t make it to her night class.
A month later, she learned that her ballot had been rejected, and a few months after that, she was arrested. Because she was on supervised release, prosecutors argued, she had knowingly violated a law preventing felons from voting before completing their sentences. Mason insisted she had no idea officials considered her ineligible — and would never have risked her freedom if she had.
For “illegally voting,” she was sentenced to five years in prison. Now, as her lawyers attempt to persuade a Fort Worth appeals court to overturn that sentence, the question is whether she voted at all.
Created in 2002, provisional ballots were intended to serve as an electoral safe harbor, allowing a person to record her vote even amid questions about her eligibility. In 2016, more than 66,000 provisional ballots were cast in Texas, and the vast majority of those were rejected, most of them because they were cast by individuals who weren’t registered to vote, according to data compiled by the U.S. Election Assistance Commission. In Tarrant County, where Mason lives, nearly 4,500 provisional ballots were cast that year, and 3,990 were rejected — but she was the only one who faced criminal prosecution.
In fact, Mason’s lawyer told a three-judge panel in North Texas last Tuesday, hers is the first known instance of an individual facing criminal charges for casting a ballot that ultimately didn’t count.
Her case, now pending before an all-Republican appeals panel, is about not just her freedom, but about the role and risks of the provisional ballot itself.
Prosecutors insist that they are not criminalizing individuals who merely vote by mistake. Despite those assurances, voting rights advocates fear the case could foster enough doubt among low-information voters that they’ll be discouraged from heading to the polls — or even clear a path for prosecutors to criminally pursue other provisional ballot-casters.
“There are a lot of people who have questions about whether they can vote or where they can vote,” said Andre Segura, legal director of the American Civil Liberties Union of Texas. “You want all of those people to feel comfortable going in and submitting a provisional ballot.”
Tarrant County prosecutors have brushed off concerns the Mason case could lead to voter suppression. “The fact that this case is so unique should emphasize why this case should in no way have a ‘chilling effect’ on anyone except people who knowingly vote illegally,” Jordan said.
But during the 2019 legislative session, some Republican lawmakers pushed to erase Mason’s legal defense for future defendants by making it easier to prosecute people who cast ballots without realizing they’re ineligible.
Currently, to commit a crime, voters must know they are ineligible; under the proposed law, they would commit a crime just by voting while knowing about the circumstances that made them ineligible. In other words, Mason would have been illegally voting because she was aware of her past felony conviction — even if she was not aware her “supervised release” status made her ineligible.
The fact that Mason’s provisional ballot wasn’t actually counted would have also been ruled out as a legal defense under the proposed changes to state law. That legislation ultimately failed in the House amid major opposition from Democrats.
See here for some background. The appellate hearing was last week, and it drew national coverage. There are three legal justifications given by the ACLU on behalf of Crystal Mason why her attempt to vote was not illegal, but even if you think those arguments are insufficient, there’s still no possible justice in a five year prison sentence for this. I mean, there’s plenty of other crimes that are punished far, far less. This is about scaring certain people so they don’t feel confident about voting. This is why reversing the tide of voter suppression laws has to be a priority for the next Democratic Legislature. Further reading about the case from the ACLU is here and here, and the Observer has more.