Hello Fight to Vote readers,
Texas Republicans passed a sweeping elections bill on Tuesday, a measure that imposes substantial new restrictions on access to the ballot in the state.
The bill targets Harris county, home of the heavily Democratic Houston, and outlaws many of the processes officials used to expand voting access there, prohibiting 24-hour and drive-thru voting. It also prohibits election officials from sending mail-in ballot applications to voters and gives poll watchers more authority at the polls. (You can read our full coverage of the measure here and here.)
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While there’s rightfully been a lot of focus on what was included in the bill, I want to focus on something consequential that ultimately got left out.
There was a little-noticed bipartisan provision in the bill that would have offered additional protections to people who mistakenly vote when they are ineligible to do so. It was inserted into the bill after two high-profile cases of Black Texans being prosecuted on this basis. One was Crystal Mason, who was sentenced to five years in prison for voting in the 2016 election while still on federal supervised release for a felony. The second was Hervis Rogers, a Houston man, who was charged with illegally voting while on parole for a 1995 felony conviction. Rogers initially made national headlines last year after waiting seven hours in line to cast his ballot. Both Mason and Rogers were unfairly prosecuted, critics say, and are being hit with severe punishments as prosecutors try to make an example of them.
In the Texas house, Democrats and Republicans negotiated a provision to make sure that people like Mason and Rogers wouldn’t be prosecuted for merely making a mistake. The amendment said someone illegally voted only if they are both aware of the circumstance that makes them ineligible to vote and that those circumstances made them ineligible to cast a ballot. The measure would have applied retroactively to both Mason and Rogers, both of whom say they had no idea they were ineligible to vote.
It was a clear response to Mason’s case. Even though federal officials testified they never told Mason she could not vote, the Texas court of appeals said last year that didn’t matter. Whether Mason knew she could vote, the court wrote, was “legally irrelevant” to her prosecution. All that mattered, the court said, was whether she knew she was on supervised release. Texas law already says it is a crime only if someone “knowingly” votes illegally, and the provision was meant to clarify that after the decision from the court of appeals, said Thomas Buser-Clancy, an attorney with the Texas chapter of the ACLU, which is helping represent Mason and Rogers.
In a bill that has been the subject of such nasty partisan fighting, the measure struck me as a quiet example of good negotiating and good policy. Despite the vast difference in opinion, Democrats and Republicans in the legislature seemed to be agreeing on a basic principle: people shouldn’t face criminal charges for mistakes.
But Republicans stripped the provision from the bill during final negotiations. State senator Bryan Hughes, a Republican who objected to the measure, was vague in his explanation of why.
“A number of people in the building, in the house and the senate, staff members, members of the legislature, folks from outside the building, saw the language and said ‘this language goes further, it does more than was intended,’” he said. “A lot of people got nervous about unintended consequences, so rather than try and tweak it, the decision was made, so we can get a good bill passed, to remove the amendment completely.”
Despite dropping the provision from the bill, Republicans did leave in one provision that could benefit Mason, whose case is currently pending at Texas’s highest criminal court. A key piece of the case that prosecutors made against Mason was that she did in fact know she was ineligible to vote, because she signed an affidavit on a provisional ballot envelope affirming she was eligible. The affidavit contains a warning saying that you are eligible to vote only if you have completed a felony sentence entirely. The fact that Mason appeared to have read and ultimately signed the affidavit, prosecutors argue, is evidence she “knowingly” voted illegally. (Mason has always maintained she never read the affidavit.)
The final Texas bill includes a retroactive provision that says someone can’t be convicted of illegally voting based solely on the fact that they signed a provisional ballot affidavit. (Rogers, who voted with a regular ballot, is unaffected by the measure.) The law also includes a new requirement for judges to inform anyone convicted of a felony of their ineligibility to vote.
Mason did not respond to a request for comment. But while her case is being appealed, she has been increasingly engaged in working to protect voting rights. In August, she traveled to Washington to rally with Texas Democrats who left the state as part of an effort to block the voting bills.
“We need to understand the power of our vote understand why it is so important to vote. Think about everyone that’s fighting to insure we vote,” she tweeted.
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