Texas may pass harsher penalty for illicit voting
A Texas Senate committee Monday advanced a bill that would raise the criminal penalty for illegal voting, less than two years after lawmakers lowered it from a felony to a misdemeanor.
At the first hearing on the bill Monday, the committee heard testimony from about a dozen Texans who were split on the issue.
The severity of the crime was changed from a second-degree felony to a Class A misdemeanor in 2021 as part of the highly contentious, Republican priority elections bill that stiffened Texas’ voting rules.
The provision lightening criminal penalties for illegal voting, however, flew under the radar until Hearst Newspapers reported on it, days after Republican Gov. Greg Abbott signed the bill into law.
Weeks later, Abbott called on Texas lawmakers to reverse the change to the criminal penalties.
Texas House Speaker Dade Phelan, who is a founding member of the bipartisan House Criminal Justice Reform Caucus, resisted. He said in a statement at the time that the provision was part of the Legislature’s “holistic approach to advancing election integrity” that struck “the appropriate balance between ballot access and accountability.”
This year, switching the penalty back to a felony is one of Lt. Gov. Dan Patrick’s top priorities.
Critics of the bill Monday stressed a higher penalty could be devastating for a person who makes an innocent mistake — and in particular for Texans of color who are disproportionately prosecuted for voter fraud. That could cause a chilling effect, they said, on their desire to vote.
“If we look at the extreme nature of a seconddegree felony, that is just outrageous,” said Gary Bledsoe, president of the Texas NAACP. “We have state jail felonies, we have third-degree felonies, but they jumped all the way to second-degree felony. And I think that’s revealing. … The punishment doesn’t fit the crime.”
“The main basis for our system of justice is to
be a deterrent … but here, that doesn’t exist because you don’t know you’re in violation of the law, but you get hit with a second-degree felony anyway.”
The bill’s author, Sen. Bryan Hughes, could not be reached for comment, but in his statement of intent, he wrote: “Illegal voting has been a felony for almost 50 years, and S.B. 2 returns this offense to a second degree felony. These offenses are serious and should be treated as such.”
Hughes had also authored the 2021 elections bill, which was rewritten after conflicting versions were passed in the House and Senate.
Harsher penalties
The consequences in Texas for the two charges are drastically different: The proposed new charge of a second-degree felony is punishable by between two and 20 years in jail and/or a fine up to $10,000 — whereas the current charge, a Class A misdemeanor, is punishable by up to a year in jail and/or a fine up to $4,000.
An attempt to vote illegally would also be a state jail felony, which could land a person in jail for between about six months and two years and saddle them with a fine of up to $10,000.
SB 2 would also remove the requirement that a person have criminal intent to cast an illegal vote.
Currently, a person commits the offense if they knowingly or intentionally vote or attempt to vote in an election in which they know they’re not eligible. The new bill would make it an offense to vote if a person knows of a “particular circumstance” that makes them ineligible, even if they aren’t aware there’s a law disqualifying them.
Hughes explained that change to committee members Monday.
“Ignorance of the law is not a defense,” he said. “If I break into your house and take your stuff, if I know that I’m breaking into your house and taking your stuff, I don’t have to know that’s burglary under the penal code. If I do that, and I know that’s what I’m doing, I am liable for the crime. That’s the same thing we’re talking about here.”
Bob Green, chair of the Travis County Republican Party’s election integrity committee, said the punishment should match the crime for illegal voting.
Democratic Sen. Judith Zaffirini asked if he was aware that a second-degree felony is a more severe penalty than the one associated with making a terroristic threat.
“I think there would be judicial discretion in the case of something like that, but I don’t feel that the penalty is too severe,” Green said. “It involves election integrity, and if you don’t have it, everybody is going to suffer.”
But Democratic state Sen. José Menéndez said the bill could have unintended consequences for people who want to do right by the law but get it wrong on accident.
Two recent cases
“It’s much more than just changing the penalty and just saying, ‘Oh, we’re going back,’ ” Menéndez said. Further, by no longer requiring criminal intent, “you’re actually able to prosecute someone for a felony for a simple mistake,” he said.
The bill, which passed out of committee Monday on a 7-3 party-line vote, stems from one of the most high-profile illegal voting cases in Texas involving Crystal Mason, a Black woman from Fort Worth who is facing five years in state prison for illegally casting a provisional ballot. Mason’s ballot was never counted, and she has said she did not know she was ineligible to vote.
The Fort Worth appellate court, in affirming Mason’s conviction, had argued the state only needed to prove she voted while knowing the condition that made her ineligible: that she was on federal supervised release from prison at the time.
The case is again before that court after the state’s highest criminal court rejected its arguments, finding the lower court had wrongly assumed Mason’s lack of awareness of her ineligibility under the law was “irrelevant to her prosecution” and wrongly interpreted the law to “criminalize the good faith submission of provisional ballots where individuals turn out to be incorrect.”
Jonathan White, former chief of the attorney general’s election fraud section, testified before the committee Monday that the requirement that a person know they’re violating the law when they vote illegally makes it very difficult to prosecute unless a person confesses, which rarely happens.
Another similar case was that of Hervis Rogers, a Black man from Houston who was charged with illegal voting after he had made national headlines for his six-hour wait in line during the 2020 primary election.
Like Mason, Rogers had maintained he did not know he was ineligible.
Rogers’ case was dismissed in late 2021 after the state’s highest criminal appellate court ruled that the attorney general lacks unilateral authority to prosecute election crimes.