“The G.O.P.’s war on voting has human casualties. Here’s one.
Whenever you hear Republican rants about widespread voter fraud supposedly undermining Americans’ faith in the integrity of their elections, remember the story of Crystal Mason.
Ms. Mason, a 46-year-old grandmother from the Fort Worth area, has been in the news on and off since 2016, when Texas prosecutors decided she was a vote fraudster so dangerous that justice demanded she be sentenced to five years behind bars.
Her offense? Visiting her local precinct on Election Day that year and casting a provisional ballot for president. Ms. Mason was not eligible to vote at the time because she was on supervised release after serving a prison term for federal tax fraud. Texas, like many states, bars those with criminal records from voting until they have finished all terms of a sentence.
Ms. Mason, who had only recently returned home to her three children and had gone to the polls that day at the urging of her mother, said she did not realize she wasn’t allowed to cast a ballot. When poll workers couldn’t find her name on the rolls, they assumed it was a clerical error and suggested she fill out the provisional ballot.
Provisional ballots are a useful way to deal with questions about a voter’s eligibility that can’t be resolved at the polling place. Since 2002, Congress has required that states offer them as part of the Help America Vote Act, a law passed in the aftermath of the 2000 election debacle, when millions of ballots were disqualified. Ms. Mason’s ballot was rejected as soon as a search of the database determined that she was ineligible. In other words, the system worked as it was intended to.
Tarrant County prosecutors went after her for illegal voting anyway. They said she should have known she was not allowed to vote. The state had sent her a letter telling her so in 2012, shortly after she had been sentenced in the tax-fraud case. The letter was delivered to her home, even though she had already begun serving her sentence. “They sent it to the one place they knew she was not going to be,” said Alison Grinter, Ms. Mason’s lawyer.
The prosecutors also pointed out that when she cast her ballot in 2016, she signed an affidavit stating that she had completed all terms of her sentence. Ms. Mason said she had not read the fine print; she was focused on writing down her address in exactly the form it appeared on her driver’s license. She was convicted after a one-day trial and sentenced to five years behind bars for casting a ballot that was never counted.
“It’s a surreal experience to be in a courtroom for these trials,” said Christopher Uggen, a professor of law and sociology at the University of Minnesota who has studied the impact of felon disenfranchisement for decades, and has testified as an expert in prosecutions of people charged with illegal voting. “You’ve got the judges, you’ve got the lawyers. You’ve got somebody who often is a model probationer called in, and what’s at issue is whether they voted. I have this overriding sense of, gosh, don’t we have other crimes to prosecute? It really should be a consensus issue in a democracy that we don’t incarcerate people for voting.”
Mr. Uggen said that there is a stronger case for criminal punishment of certain election-law offenses, like campaign-finance violations or sabotaging voting machines, that can do more widespread damage to our election system. But in his own work he has found that the people who get punished are more likely to fit Ms. Mason’s description: female, low-level offenders who are doing relatively well in the community. “These are not typically folks who represent some great threat to public safety,” he said.
You wouldn’t get that sense from how Ms. Mason has been treated. After her voting conviction, a federal judge found she had violated the terms of her supervised release, and sentenced her to 10 extra months behind bars. That punishment, which she began serving in December 2018, earned her no credit toward her five-year state sentence.
Ms. Mason has continued to fight her case, but so far she has lost at every step. In March 2020, a three-judge panel on a state appellate court rejected her challenge to her sentence. The court reasoned that she broke the law simply by trying to vote while knowing she was on supervised release. It didn’t matter whether she knew that Texas prohibits voting by people in that circumstance.
This appears to be a clear misapplication of Texas election law, which criminalizes voting only by people who actually know they are not eligible, not those who, like Ms. Mason, mistakenly believe that they are. It’s as though Ms. Mason had asked a police officer what the local speed limit was, and he responded: “Beats me. Why don’t you start driving and see if we pull you over?”
Last week, the Texas Court of Criminal Appeals, the state’s highest court for criminal cases, agreed to rule on Ms. Mason’s appeal. It’s her last chance to avoid prison for voting. Tossing her conviction would bring a small measure of justice to a woman whose punishment should have been limited to, at most, not being able to cast a ballot.
But it wouldn’t give her back the last four years of fear and uncertainty she has endured for no good reason. Ms. Mason’s first grandchild was born a few months ago, another reminder of how much she would miss if she were to lose the appeal and end up back behind bars. “This is very overwhelming, waking up every day knowing that prison is on the line, trying to maintain a smile on your face in front of your kids and you don’t know the outcome,” Ms. Mason told The Times in an interview. “Your future is in someone else’s hands because of a simple error.”
Identifying errors like these is the whole point of offering provisional ballots: The crazy quilt of voting rules and regulations that Americans face from state to state can trip up even the best-informed voters, and honest mistakes are common. By prosecuting Ms. Mason, just one of more than 44,000 Texans whose provisional ballot in 2016 was found to be ineligible, the state is saying that you attempt to participate in democracy at your own risk.
That risk is almost always higher for people of color. Texas’ attorney general, Ken Paxton, likes to brag about the 155 people his office has successfully prosecuted for election fraud in the last 16 years — an average of fewer than 10 per year. What he doesn’t say out loud is what The Houston Chronicle found in an analysis of the cases he has prosecuted: almost three-quarters involved Black or Latino defendants, and nearly half involved women of color, like Ms. Mason.
At this point you might be wondering why Ms. Mason was ineligible to vote in the first place. She had been released from prison, after all, and was trying to work her way back into society. As more states are coming to understand, there is no good argument for denying the vote to people with a criminal record, and that’s before you consider the practice’s explicitly racist roots. There is even a strong case to be made for letting those in prison vote, as Maine, Vermont and most Western European countries do. And yet today, more than five million Americans, including Ms. Mason, are unable to vote because of a criminal conviction. That has a far greater impact on state and national elections than any voter fraud that has ever been uncovered.
Given the disproportionate number of Black and brown people caught up in the criminal justice system, it’s not hard to see a connection between cases like Ms. Mason's and the broader Republican war on voting, which so often targets people who look like her. The nation’s tolerance of prosecutions for the act of casting a ballot reveals a complacency about the right to vote, Mr. Uggen said, and a troubling degree of comfort with voting restrictions generally. “There’s a slippery slope: If you start exempting individuals from the franchise, it’s easy to exempt other individuals by defining them outside the citizenry,” he said. “What is shocking to me is that people view this as acceptable in a political system that calls itself a democracy.”