“The Texas Court of Criminal Appeals has agreed to review the illegal voting conviction of Crystal Mason, a Tarrant County woman facing a five-year prison sentence for casting a provisional ballot in the 2016 election while she was on supervised release for a federal conviction,” the Texas Tribune reported on Wednesday, March 31, 2021, adding the case “could test the extent to which provisional ballots provide a safe harbor for voters amid questions about their eligibility.” Read story here.
Indeed.
But first of all, the facts of the case — Mason (photo, right) is black, voted provisionally “on the advice of a poll worker,” and her vote was never counted — make it look as though she’s being persecuted because of her race, whether or not that’s true.
Five years in prison for illegal voting, even intentionally, would be a draconian punishment in any case, and arguably in violation of the Eighth Amendment ban on “cruel and unusual” punishments. It seems very disproportionate to the severity of the crime, especially for a vote that wasn’t counted. Some criminals get less time than that for armed robbery.
It’s also wildly disproportionate to the actual sentence imposed on a Wisconsin white voter who deliberately voted multiple times in multiple contests. That man, a 50-year-old owner of an insurance agency, pleaded no-contest (which has the same effect as a guilty plea) to 6 counts of voting fraud; he got 6 months in jail, followed by 6 months of work-release, plus 5 years of probation and a $5,000 fine. (Read story here.)
But it’s highly questionable whether casting a provisional ballot can even be a crime. As the Tribune article mentions, a provisional ballot is supposed to be a “safe harbor” for possibly ineligible voters. According to Wikipedia (here), the Help America Vote Act (HAVA), enacted in 2020, “requires voters identified as ineligible (such as voters not found on the registered list), but who believe themselves to be eligible, to be able to cast a provisional ballot. After the election, the appropriate State or local election entity will determine if the voter was eligible.”
Thus, it sure looks like casting a provisional ballot, whether eligible to vote or not, is a right under federal law. In any case, that law puts the burden of responsibility for determining eligibility on election officials, not the voter. This being so, it’s hard to see how anyone can be convicted of a crime for casting a provisional ballot, but especially one that was processed properly, a determination of ineligibility was made, and the vote wasn’t counted. That fact, all the more, makes it appear that Mason is being persecuted by zealots who are hell-bent on restricting access to the ballot box, especially for people of color.
If the Texas courts don’t throw out this conviction, the federal courts should, because Mason’s legal right to cast a provisional ballot regardless of her eligibility is being violated by the State of Texas, its prosecutors, and its judges.