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In 2018, Crystal Mason was convicted of illegally voting in the 2016 election and sentenced to five years in prison. Mason had completed a custodial sentence for tax fraud, but was ineligible to vote under Texas law because she was still on supervised federal probation.
The provisional ballot she cast was never counted, and Mason, whose case was championed by the ACLU and the Texas Civil Rights Project, has consistently maintained that she did not know that she was casting an illegal ballot. Nevertheless prosecutors argued that the state’s newly enacted voting statute only required her to know that she was on probation, and thus there was no need to prove that she knowingly broke the law.
Both the trial court and the appellate court agreed, but yesterday the Texas Court of Criminal Appeals reversed the conviction, holding that the lower courts had incorrectly interpreted the statute’s scienter requirement.
The ruling rests both on changes to Texas’s voting law and on a precedent involving former Republican House Majority Leader Tom DeLay — because history rhymes, and karma never misses.
DeLay, nicknamed “The Bug Man” because he’d been an exterminator before entering politics, rode the Republican wave to power alongside Newt Gingrich in 1994. He resigned from congress in 2006 after a grand jury indicted him on campaign finance and money laundering charges in relation to the Jack Abramoff lobbying scandal. Later his conviction was overturned because the state had failed to establish that DeLay knowingly violated campaign finance law.
Yesterday the state’s highest criminal court ruled that the lower courts had erred in their finding that the DeLay precedent did not apply to Mason’s case.
In Delay, we interpreted the phrase “knowingly make a political contribution in violation of this chapter” to mean that an actor must knowingly make a political contribution while also knowing that the contribution violates the Election Code. 465 S.W.3d at 250. Doing the same in this case yields a result in which the phrase “knows the person is not eligible to vote” means that Appellant was guilty if she knew she was ineligible to vote in addition to knowing that she had not completed her sentence.
Furthermore, thanks in part to the massive backlash from Mason’s original conviction, the Texas legislature amended the statute to make it clear that they were not trying to send people to jail for accidental misunderstanding of the law. As amended, the bill now says that a person “may not be convicted solely upon the fact that the person signed a provisional ballot affidavit under Section 63.011 unless corroborated by other evidence that the person knowingly committed the offense.” The amendment includes a savings clause which would retroactively apply to Mason, whose conviction was not final as of its passage.
And, in case there was any doubt that the legislature was signaling hard to the court that it never intended to punish Mason, the Republican sponsor of the bill referred to her by name when he was debating the amendment.
“Obviously, the courts are about to decide what it is, but my interpretation of current law is you have to have a mens rea element,” said Representative Dustin Burrows. “As we said, this is not a strict liability-type of issue. So I believe this resolution actually conforms with what the current law is today, and the Cain amendment was no different, which is why this body has adopted it several times.”
Which is a fairly unambiguous statement of legislative intent.
The court did not uphold Mason’s arguments that she didn’t “vote” because her provisional ballot was rejected and that the Texas law violates the federal Help America Vote Act. But her case will go back to the appellate court for reconsideration in light of the reinterpreted mens rea requirement.
“My life has been upended for what was, at worst, an innocent misunderstanding of casting a provisional ballot that was never even counted,” she said yesterday. “I have been called to this fight for voting rights and will continue to serve my community.”
Guess Tom DeLay was good for something after all.
Mason v. Texas [Holding via ACLU of Texas]
Elizabeth Dye lives in Baltimore where she writes about law and politics.
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