GOP voting law gives some a break
Penalty for mistakenly casting ballot now a misdemeanor
The Republican priority voting reforms and restrictions signed into law last week added a number of new election-related offenses and raised criminal penalties for others others, all of which were hotly debated this summer.
But one major provision got little attention.
The bill lowered the criminal offense for illegal voting from a second-degree felony to a Class A misdemeanor, the latter punishable by up to a year in jail.
It also made a slight change to require that a person charged with illegal voting must have done so either “knowingly,” as the law currently states, or “intentionally.” The provisions could impact ongoing cases that inflamed debate over the bill, including that of Crystal Mason, a Black Fort Worth woman who is facing five years in state prison for illegally casting a provisional ballot — that was never counted — despite her saying she did not know she was ineligible to vote.
In another high-profile case that could be affected, Roger Hervis, a Black man from Houston this year was charged with illegal voting after he had made national headlines for his six-hour wait in line during the 2020 primary election.
The ACLU, whose lawyers among others on the legal team represent both Mason and Rogers, could not be reached for comment.
The illegal voting offense accounts for nearly half of the Texas Attorney General Office’s pending voter fraud cases, about 20, though most are related to one alleged illegal voting scheme in a mayoral election in Edinburgh in 2017. The office also did not respond to a request for comment.
The changes originated from an amendment by state Rep. Steve Allison, R-san Antonio, on the House floor in late August. Allison was not available for an in
terview, but his chief of staff Rocky Gage said Allison wanted to ensure people who accidentally vote illegally don’t face charges. The amendment wasn’t crafted specifically with Mason’s case in mind, Gage said, but rather to address the general issue.
“The main reason for filing this — Rep. Allison, he and other members thought it was important to establish that ‘intent’ piece,” Gage said. “There’s a lot of talk — (state Rep.) Diego Bernal, for instance, was saying, ‘If I help my grandmother, and I don’t know (it’s illegal), now I’m in trouble.’ So we thought to address those concerns — it’s necessary to address those concerns.
“I think members understood that was important,” Gage said.
Texas House Speaker Dade Phelan, who is a founding member of the bipartisan House Criminal Justice Reform Caucus, said the provision was part of the Legislature’s “holistic approach to advancing election integrity” that struck “the appropriate balance between ballot access and accountability.”
Lowering the penalty will protect voters who make innocent mistakes and help the state’s lawyers stay focused on the few true bad actors, said C. Robert Heath, an election lawyer who served under Democratic Texas Attorney General John Hill in the 70s.
“Laws are more easily enforced when they’re more reasonable,” Heath said. “Most people who vote illegally, and I don’t think there are very many of them, do it because they’re confused or don’t understand the law.”
Regardless of the punishment, Heath said there’s a reason voter fraud cases are so uncommon.
“Whether it’s a misdemeanor or felony, it’s a high risk, low reward,” he said. “If you’re going to change the outcome, it’s a very unusual situation, and one vote’s not going to do it. You’re going to need a lot of votes.”
Still, there are some Republicans who say any lightening of punishments in the election code is a mistake. Among them is Andrew Eller, an election judge of 25 years in Bell County, who advocated for higher penalties for judges who refuse poll watchers.
“My thoughts are stiffer penalties are always the best when it comes to illegal voting,” Eller said in an interview Friday. “When one person casts an illegal ballot, they’re taking away
someone else’s legal ballot. If you’re knowingly doing that, it should be a higher standard.”
Chuck Devore, vice president of national initiatives at the right-leaning Texas Public Policy Foundation, said that while the organization didn’t take a stance on this provision
specifically, it did support another part of Senate Bill 1 that requires the courts to inform felons of their voting eligibility upon conviction. Mason was on supervised release and Hervis was on parole when they tried to cast ballots.
“It’s not a shock to me because I don’t think many
people, frankly, want to see these very rare instances prosecuted,” Devore said, referring to cases involving honest mistakes.
Devore pointed to data from the attorney general’s office that shows that just four cases over 16 years involved a voter who was ineligible casting a ballot.
“The impression was that members of both parties weren’t really enthusiastic about these sorts of punishments,” he said.
One of the main priorities of Republicans was a section creating a criminal penalty for vote harvesting, the act of illegally coercing people to vote a certain way in exchange for compensation or some other benefit, which is now a third-degree felony.
Devore added that viewed in combination with that provision, the lowering of the “illegal voting” offense makes sense.
“You want to go after the people who actually organize these schemes, rather than the people who were brought in as, in many cases, ‘dupes’ to participate,” Devore said. “I’m not particularly concerned about 20 people who get roped into one of these schemes and they each get 10 bucks.”