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Texas appeals court lets controversial illegal voting conviction stand

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Crystal Mason spoke about being accused of voter fraud and her upcoming court case on on Sept. 9 2019 in Fort Worth. Leslie Boorhem-Stephenson for The Texas Tribune

A state appellate court has declined to overturn the conviction and five-year prison sentence of Crystal Mason, a Tarrant County woman who cast a provisional ballot in the 2016 election while on supervised release for a federal conviction.

A three-judge panel of the Fort Worth appeals court on Thursday affirmed a trial court’s judgment of illegal voting, a second-degree state felony. Her lawyers indicated they will seek a review of the case by the full state Second District Court of Appeals.

Mason’s case dates back to the provisional ballot she submitted for the 2016 presidential election on the advice of a poll worker. A month later, she learned that her ballot had been rejected, and a few months after that, she was arrested. Because she was on supervised release, prosecutors argued, she had knowingly violated a law the prohibits felons from voting before completing their sentences. Mason insisted she had no idea officials considered her ineligible — and would never have risked her freedom if she had.

Her vote was never counted.

Her appeal turned on narrow legal questions — did a person vote (illegally or otherwise) if her vote didn’t count? — but her cause has put Mason at the center of a battle over the vote and the safe harbor provisional ballots are intended to provide.

Created in 2002, provisional ballots are meant to allow people to record their votes even amid questions about eligibility. Tens of thousands of provisional ballots are cast in large elections, and most are rejected.

In Tarrant County, where Mason lives, nearly 4,500 provisional ballots were cast in 2016, and 3,990 were rejected — but only she faced criminal prosecution. In fact, Mason’s lawyer told a three-judge panel in North Texas last September, hers is the first known instance of an individual facing criminal charges for casting a ballot that ultimately didn’t count.

“These are difficult times for me, but I have faith that with the help of my family and God, right will prevail,” Mason said in a statement released Friday by her lawyers. “A punishment of five years in jail for doing what I thought was my civic duty, and just as I was getting my family's life together, is not simply unfair, it's a tragedy.”

Prosecutors have insisted they’re not criminalizing individuals who merely vote by mistake, and say that Mason’s case is about intent. Her conviction hinged on an affidavit she signed before casting her provisional ballot.

At her trial, the judge convicted her of voting illegally after a poll worker testified he had watched Mason read, and run her finger along, each line of an affidavit that required individuals to swear that “if a felon, I have completed all my punishment including any term of incarceration, parole, supervision, period of probation, or I have been pardoned.” Mason said she did not read that side of the paper.

Mason was still under supervised release for a federal conviction. She was indicted in 2011 for helping clients at her tax preparation business falsify expenses and claim improper exemptions to lower their tax bills.

Her lawyers argue that the law is murky. Texas law allows convicted felons to vote once they’ve completed their “sentence,” including any “parole or supervision.” But it’s not clear that federal “supervised release” lines up with “supervision” under that law, Mason’s lawyers argue.

The three-judge panel did not see any ambiguity. "The fact that she did not know she was legally ineligible to vote was irrelevant to her prosecution," Justice Wade Birdwell wrote in the court's opinion. "The State needed only to prove that she voted while knowing of the existence of the condition that made her ineligible."

“The decision to prosecute is, in most cases, beyond this court’s capacity to review,” the opinion said. "Likewise, ours is not to question an unambiguous statute’s wisdom but rather to apply it as written.”