Mason’s attorneys are arguing that she cast a provisional ballot, which federal law permits, and that if the state starts to criminalize this, it will undercut the entire system. They called Mason’s prosecution “a threat to democracy.”
In November 2016, 43-year-old Mason was piecing her life back together: She had recently completed a multiyear sentence for tax fraud and, though still on federal supervised release, had landed a new job, saved her home from foreclosure, and was in school and caring for her children and her brother’s.
When Mason arrived at her polling place and learned that her name wasn’t on the list of eligible voters, she accepted a volunteer election worker’s suggestion that Mason cast a provisional ballot.
Texas law says that a person can be prosecuted for illegal voting if he or she “votes or attempts to vote in an election in which the person knows the person is not eligible to vote.” It also bars convicted felons from voting if they are on probation, parole or “supervision.”
Mason has insisted that she did not know of any restriction on her eligibility to vote and that no one, including her probation officer, had told her. Despite her protests, a Tarrant County judge convicted Mason of the second-degree felony last year.
Mason’s legal team, led by attorney Thomas Buser-Clancy of the Texas American Civil Liberties Union, appealed.
On Tuesday, a three-judge panel heard the three-prong oral arguments:
(1) Mason did not vote in the 2016 election because her provisional ballot was never counted.
(2) The prosecution failed to prove that Mason knew she was ineligible to vote.
(3) The conditions of her release from federal prison did not amount to “supervision” under Texas law, meaning Mason would have been eligible to vote.
At the heart of Mason’s appeal is the state’s provisional-voting process, which is mandated under federal law by the Help America Vote Act, signed into law by President George W. Bush in 2002. It says that if there’s ambiguity about a person’s ability to vote, or his or her name is not on the list of eligible voters, he or she may submit a provisional ballot. The vote is counted only if the state determines that person was, in fact, eligible to vote.
In Mason’s case, Tarrant County administrators determined that her federal supervised-release status made her ineligible to vote. They did not count her provisional ballot.
“That should have been the end of the story for Crystal,” Buser-Clancy told The Washington Post on Wednesday. Instead, he said, the state misapplied the illegal-voting statute to prosecute her.
Prosecutions like Mason’s are extremely rare; the ACLU is not aware of another Texas case of a person being prosecuted based on a rejected provisional ballot.
According to HuffPost, more than 12,000 people have cast provisional ballots in Tarrant County since 2014. Officials have rejected about 11,000 of them, yet Mason is the only known prosecution for illegal voting.
Under Texas law, convicted felons cannot vote if they are on “supervision.”
However, the Texas election code does not define “supervision,” and the Texas penal code mentions “supervision” as periods in which an individual is subject to oversight as a trade-off to incarceration. According to court documents, Mason, who was on federal supervised release, had no such trade-off.
Before casting a provisional ballot in November 2016, “she served the entirety of her sentence,” Buser-Clancy told The Post.
As The Post previously reported, in-person voter fraud is considered extremely rare. In 2016, the U.S. Court of Appeals for the 5th Circuit, in a ruling rejecting the state’s stringent voter ID law, found only two convictions for in-person voter fraud out of 20 million ballots cast in the years before the law’s 2011 passage.
Conservative groups lauded the Tarrant County District Attorney’s Office for pursuing the case against Mason, the Texas Observer reported.
On Tuesday, the judges asked questions focused on the purpose of the Help America Vote Act, whether a rejected provisional ballot should constitute a vote and whether Mason knew she was considered ineligible when she cast that ballot.
A decision is expected in the next few months, though it’s unclear which way the court will rule.
“The judges were interested in the case and in the arguments we were making, and were asking questions to both sides about those arguments,” Buser-Clancy said.
If the appeals court declines to overturn Mason’s conviction, the ACLU plans to petition the next highest court, the Court of Criminal Appeals, to review the case.