When a Texas appeals court reversed itself last week and acquitted Crystal Mason, a mother of three, in a voting fraud case, it ended almost a decade in which Ms. Mason lived in fear of being torn away from her family and imprisoned.
In 2018, she was sentenced to a five-year prison term for illegally casting a provisional ballot in the 2016 election.
While the prosecution of Ms. Mason may have failed, it still could have broader consequences in chilling people’s willingness to exercise their right to vote. Few would want to vote if it means going through what Ms. Mason did. As such, the reversal in her case cannot undo much of the damage that irresponsible Texas prosecutors wrought.
As the federal circuit court of appeals that oversees Texas recognized decades ago, “short of physical violence,” nothing has “a more chilling effect” on voting than “baseless arrests and prosecutions.” Unfortunately, that may be the point of bringing cases like Ms. Mason’s, as they suggest apparent racial disparities at work in voting-fraud prosecutions.
In November 2016, Ms. Mason went to vote in the presidential election. She was on the fence about voting, but her mother convinced her: “If you can vote, go vote, you have to have your voice heard,” Ms. Mason recalled her saying.
But when she arrived at her precinct, she was surprised to learn that her name wasn’t on the rolls, so she cast a provisional ballot. In return for trying to do her civic duty, Texas prosecutors tried to put her in prison.
When Ms. Mason voted, she was on federal supervised release, which is like a term of probation that federal criminal defendants serve after leaving prison. Those on release must obey certain court-ordered conditions but are otherwise free to live their life as they see fit. Under Texas law, such individuals are ineligible to vote, which Ms. Mason did not know. Prosecutors charged her anyway, convicting her on a theory that they did not have to prove that she knew she was ineligible; they just had to prove that she was ineligible.
An appellate court agreed with prosecutors’ theory and upheld her conviction, while noting: “The evidence does not show that she voted for any fraudulent purpose.”
Texas’ highest criminal court ruled that the state’s voter fraud statute requires proof that a defendant knew she was ineligible and sent the case back to the lower appellate court, where Ms. Mason’s conviction was overturned.
Last year, I represented a bipartisan group of former state attorneys general, U.S. attorneys and Justice Department officials who argued as amici curiae in Ms. Mason’s appeal that “if eligible voters believe that a mistake about their eligibility could lead to prosecution and conviction, they will understandably think twice before voting.”
Other unjust voter fraud cases, like a number of those after the creation of an election police unit by Gov. Ron DeSantis of Florida, unleashed havoc in those defendants’ lives, even though a large proportion of the cases were dismissed. And anecdotal evidence indicates that the chilling effect of these Florida cases is very real, not theoretical. As a voting rights attorney with the NAACP Legal Defense Fund recounted, “We’ve heard stories about voters who are eligible to vote but have a criminal conviction in their past, and they are now scared to register and vote.”
To avoid such misguided prosecutions, prosecutors need to adopt the maxim that when a potentially criminal act has a close relationship to a constitutional right, only cases with robust evidence of criminal intent should be prosecuted.
Prosecutorial restraint is especially critical in the context of former felons who impermissibly try to cast a ballot, like Ms. Mason. As a Brennan Center report explains: “The laws concerning eligibility vary from state to state and can be confusing: Different voters are disenfranchised for different convictions for different lengths of time.”
The same report even provides survey data showing that election officials often do not know the correct law in their state for felon re-enfranchisement. Commenting on Ms. Mason’s case in 2021, a Republican legislator in Texas said, “I would not have known that being on supervised release would have made you ineligible” to vote.
Notably, felon-disenfranchisement laws do not affect racial groups equally. A 2022 report from the Sentencing Project shows that “one in 19 African Americans of voting age is disenfranchised, a rate 3.5 times that of non-African Americans,” with more than 1 in 10 being disenfranchised in seven, mostly Southern states. So when prosecutions under these laws chill votes, it is Black votes that they are disproportionately chilling. Indeed, approximately two-thirds of those rounded up in the first wave of Governor DeSantis’s election unit’s arrests were Black.
Sentencing can add another layer to the racial aspect, which should be no surprise, given the disproportionately harsher sentences that Black defendants generally endure. Facing similar charges, Ms. Mason and well-heeled white offenders received strikingly divergent sentences — a five-year prison sentence for her, a slap on the wrist for them. In Ms. Mason’s home county, for example, a justice of the peace who falsified names to get on a primary ballot was sentenced to probation. In Georgia, a state Republican official just last week received a $5,000 fine for illegally voting nine times.
The problem with prosecuting marginal voter fraud cases goes beyond its chilling concerns. If the goal is truly to ensure that only eligible voters vote, it is actually an ineffective tool in a state’s arsenal. Texas, for instance, has numerous safeguards in place that are designed to permit only lawful votes to be counted. In the context of felons improperly voting, these safeguards exist at the local, state and federal levels. Indeed, in Ms. Mason’s case, such safeguards worked: The provisional vote that almost cost her five years of her life was never counted.
It is injustice for all those who do not vote because reckless prosecutors in cases like Ms. Mason’s intimidated them. As Ms. Mason’s own case demonstrates, courts cannot stop these injustices from happening; only ethical prosecutors with a firm commitment to safeguarding constitutional rights can do that.
Gregory Nolan is a senior counsel at Brown White & Osborn and a former federal prosecutor and counsel at States United Democracy Center. This article originally appeared in The New York Times.