Tarrant illegal voting case that has drawn national attention argued before appeals court

Four years ago, Crystal Mason sat in a Tarrant County courtroom, surrounded by family members and supporters, as attorneys and justices argued about whether she committed voter fraud.

On Tuesday, she found herself back in the same room in the Court of Appeals for the Second District of Texas. Once again, she and dozens of other observers in the gallery listened to complex legal arguments surrounding a single provisional ballot that Mason cast. Mason, who is from Rendon, cast the ballot in the 2016 election — provisional ballots are meant to allow a person to cast a potential vote, with its eligibility to be counted to be determined later, even if their name does not appear on the list of registered voters.

The ballot was not counted, and Mason said she was unaware she was not allowed to vote. But in March 2018, Mason was convicted of illegal voting and sentenced to five years in prison. In May 2019, the American Civil Liberties Union of Texas, the ACLU Voting Rights Project, and the Texas Civil Rights Project joined Mason’s legal team, and in July 2019, Mason was released from prison. The case made its way up to the Texas Court of Criminal Appeals, which ordered the Second Court of Appeals to revisit the case.

The subsequent legal battle has drawn national attention and bipartisan support from leaders who say Mason’s case is an example of how voter fraud claims are used to suppress voters.

“Ms. Mason and her family have been burdened by this for far too long,” Savannah Kumar, ACLU of Texas attorney, said in a statement about Tuesday’s hearing. “We believe that what is right will ultimately prevail and the court system should overturn this unwarranted conviction, as we explained once again in court today.”

In May 2022, Mason said in a statement that her life “has been upended for what was, at worst, an innocent misunderstanding of casting a provisional ballot that was never even counted. I have been called to this fight for voting rights and will continue to serve my community.”

Appeals hearing

In March 2020, three justices on the Court of Appeals for the Second District of Texas denied Mason’s appeal, although the court agreed she did not know she was ineligible to vote.

But in May 2022, the Court of Criminal Appeals found that the Second District Court of Appeals had erred. In a brief, the Court of Criminal Appeals said the court failed to require proof that Mason actually knew it was a crime for her to vote while on supervised release.

That proof was the subject of Tuesday’s arguments before the same three justices who issued the 2020 opinion: Justices J. Wade Birdwell, Dabney Bassel and Elizabeth Kerr.

Sophia Lakin, an ACLU attorney on Mason’s legal team, began her legal arguments at about 1:30 p.m. Tuesday. She said the state has failed to prove that Mason knew she was not allowed to vote, and her glancing at a section in the provisional ballot that addresses voter eligibility is not proof that she read it. Even if she did read it, she may not have understood the implications.

In the provisional ballot Mason filled out in 2016 (in which she was assisted by a poll worker), she signed an affidavit that included a small passage essentially saying the voter acknowledges they are not currently on probation.

The state has argued, and continued to argue Tuesday, that her signature is evidence that she knew she was not eligible to vote.

In a notable exchange Tuesday, Justice Birdwell asked the state’s attorney where in the provisional ballot does it say the voter is disqualified from voting if they are on probation or federally supervised release.

The state’s attorney was silent for several seconds.

“I’ll help you out,” Birdwell said. “It doesn’t... There is nothing in this that tells her the consequence of her eligibility to vote.”

Mason’s attorneys also argue that an election law passed in 2021 supports the reversal of Mason’s conviction. The law, Senate Bill 1, says a person accused of illegal voting cannot be convicted based solely on the fact that they signed the provisional ballot affidavit and voted; the bill says there must be additional, corroborating evidence that the person knew they could not cast a ballot and did so anyway.

In its brief, the Court of Criminal Appeals wrote that it agrees with the state that changing the state law alone doesn’t decriminalize Mason’s conduct, but said it also agrees with Mason’s attorneys that “actual knowledge of one’s ineligibility is an element of the offense of illegal voting.”

The state’s attorney pointed out that Mason would have received a notice in the mail that she was not eligible to vote while on supervised release. Kerr asked if there was evidence that Mason read it, and the attorney said no, but that is not required under the law.

‘A campaign of voter suppression’

Mason’s case, said Barbara Arnwine, president and founder of the Transformative Justice Coalition, has been used to “bludgeon Black voters” and “further a campaign of voter suppression.”

Arnwine and Daryl Jones, a former prosecutor and member of the Transformative Justice Coalition, have been involved with Mason’s case “almost since the beginning” and flew from Washington D.C. to Texas to attend Tuesday’s hearing. They said Mason’s case exemplifies voter suppression tactics, especially against Black voters, and has a chilling effect on other potential voters.

Millions of people who have the right to vote do not do so, they said, because they have a former conviction and are not certain of their rights or afraid of repercussions.

In February, a bipartisan group of former state and federal prosecutors, led by the States United Democracy Center, filed an amicus brief urging the Second Court of Appeals in Fort Worth to reverse Mason’s conviction. Sarah Saldaña – a States United advisory board member and former U.S. attorney for the Northern District of Texas, was one of those who signed the brief.

“The provisional system worked in Crystal Mason’s case, and Ms. Mason’s penalty should have been not having her voted counted — which is what happened,” Saldaña said in a statement. “This is a misuse of prosecutorial power that could have a chilling effect on minority voters’ participation in elections.”

Saldaña and Matt Orwig, another former U.S. Attorney in Texas, wrote in a column published in the Star-Telegram that “Mason’s prison sentence is far harsher than other cases involving flagrant violation of Texas election laws.”

For example, in 2018, Justice of the Peace Russ Casey, who pleaded guilty to turning in fake signatures to get on the ballot for re-election, received probation. In Harris County, two women admitted they cast a ballot in another person’s name in 2016. They were sentenced to one day in prison each.

“As former U.S. attorneys who served in Texas — one in a Republican administration, one in a Democratic administration — we believe that the freedom to vote, faith in our elections and a fair justice system are not partisan issues,” they wrote. “They are pillars of our democracy. Texas’ Second Court of Appeals in Fort Worth can strengthen these principles later this month when it examines Mason’s case.”