Crystal Mason’s vote didn’t count. Will her prosecution scare away others whose votes would?

In early February 2017, Crystal Mason’s probation officer asked her to come to the federal building in downtown Fort Worth. The meeting was unusual—maybe a surprise drug test, she thought—but Mason wasn’t too worried. She’d rebuilt her life after serving nearly three years in federal prison for tax fraud, finding a good job and attending night school while caring for her three children and helping to raise four nieces and nephews. When Mason arrived, the check-in felt perfunctory. Then she saw an officer waiting for her in the lobby on her way out. The officer approached her, confirmed who she was, handcuffed her arms behind her back, and told her she was going to jail for what she still considers a baffling charge: illegal voting, a second-degree felony.

Mason had tried to vote in the November 2016 election, not because of any burning interest in politics but rather at the repeated urging of her mother. Neither of them realized that Texas officials considered Mason, who was still under federal supervision for her felony tax fraud conviction, ineligible to vote because of her legal status. At her trial in state court last year, a federal official testified that Mason wasn’t warned that she couldn’t vote in Texas while on supervision because that was considered “common knowledge.”

Mason insists it was an innocent mistake, saying she’d never knowingly risk going back to prison just to vote. Last year, the Tarrant County judge on the case convicted Mason and sentenced her to 5 years in prison.

“It was overwhelming,” Mason told me last week. “I felt sick, I felt confused, all I kept saying was, ‘Please don’t let me go back to jail.’ I didn’t want to go back inside, I told myself I’d never do anything to risk that.”

Mason is now appealing the sentence, and will face the Tarrant County DA’s office at the Second Court of Appeals in Fort Worth on Tuesday.

Prosecutors say Mason knew she wasn’t allowed to vote and did it anyway. They contend, for instance, that Mason must have read and understood the boilerplate warning on the provisional ballot she signed, and yet still took one of the most high-risk, low-reward gambles imaginable.

“Making an example out of her is not actually going to make the system more secure.”

Mason’s lawyers say officials have made an example out of someone who didn’t technically do anything illegal since she didn’t actually vote; the provisional ballot she cast in November 2016 was ultimately thrown out. Among other arguments, they say Mason’s prosecution fundamentally undermines the provisional voting process, a requirement for all state voting systems after George W. Bush signed the federal Help America Vote Act in 2002. Provisional voting exists so that people aren’t automatically turned away at the polls whenever there are questions about their eligibility.

While conservative groups have praised prosecutors’ tough-on-crime approach to the case, voting rights advocates have been galvanized by Mason’s prosecution. They call her harsh punishment part of a broader campaign by Texas Republicans to scare people from voting. Activists shouted Mason’s name from the state capitol steps in Austin earlier this year during rallies against GOP-drafted proposals that would have made it easier to prosecute people like her. In May, a coalition of civil rights groups joined Mason’s legal team to help appeal the sentence. “What we’re seeing now is a dangerous trend of politicians treating people who make innocent mistakes as political pawns,” said Sophia Lakin, a staff attorney with the ACLU’s Voting Rights Project, which is now helping represent Mason.

The concern is, will prosecuting Mason ultimately frighten away others whose vote would count?

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Mason’s case follows a long and ugly history of voter suppression in Texas. The state’s past is checkered with poll taxes, racial violence, and all-white primaries. Current voter registration laws are no better; they’re so restrictive that the kind of country-wide registration drives that led to the passage of the Voting Rights Act would now be illegal here.

Voter suppression is often blamed for the perennially dismal voter turnout in Texas, which, despite seeing a marked increase in the 2018 midterms, still lags behind most of the country. Stunting turnout in minority communities, which tend to vote Democratic, could keep Texas’ fastest growing demographic groups from realizing their full political potential—just like, say, gerrymandering can curb the power of the state’s growing minority vote. Turnout in 2020 could be particularly important in Texas. After gaining ground in 2018, Democrats think they have a shot at seizing the Texas House—currently mired in one of the more bafoonish political scandals to ever hit the Legislature, thanks to its current Republican leadership—just in time for the next round of redistricting. Once reliably red districts look more and more competitive every time another Republican member of Congress announces their retirement.

For Republican officials and right-wing groups in Texas, high-profile prosecutions like Mason’s validate their ongoing crusade against illegal voting, an exceedingly rare crime, and dovetail with their broader campaign to police the vote. Last year, tea partiers flooded Abbott’s office with calls and emails warning of an army of “illegals” voting in Texas. That eventually prompted then-Secretary of State David Whitley—an Abbott appointee—to orchestrate an attempt to police county voter rolls and “identify possible non-U.S. citizens registered to vote.” But the proposal came under swift scrutiny, in part because it threatened the registrations of tens of thousands of naturalized citizens who would be legally allowed to vote.

Legal and political fallout from the botched purge helped derail Republican proposals last legislative session to add new tripwires to the voting process. The purge, which is now being investigated by a congressional oversight committee, also tanked Whitley’s confirmation. Abbott’s office didn’t respond to a request for comment about Mason’s case.

“What we’re seeing now is a dangerous trend of politicians treating people who make innocent mistakes as political pawns.”

Any cloud of confusion or fear generated by Mason’s prosecution only adds to the many barriers to the ballot box that already exist in Texas, says Myrna Pérez, director of the voting rights and elections project at the Brennan Center for Justice at New York University Law School. “Making an example out of her is not actually going to make the system more secure,” Pérez told me. “People who have a wrongful belief that they’re eligible to vote are not going to be deterred unless someone educates them.” Meanwhile, Pérez says, people who may be eligible but aren’t sure will probably stay away since the consequences of getting it wrong are so severe.

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Like Mason, others have inadvertently found themselves in the crosshairs of the Texas GOP’s war on voter fraud, which a federal judge recently characterized as an attempt to “ferret the infinitesimal needles out of the haystack of 15 million Texas voters.”

When Greg Abbott was attorney general, he prosecuted Democrats who helped seniors vote by mail and sent gun-toting deputies to raid a Houston voter registration group. In 2017, the same year Tarrant County DA Sharen Wilson prosecuted Mason for illegal voting, her office worked with current Texas Attorney General Ken Paxton to go after Rosa Ortega, a legal permanent resident and mother of four who was brought to the United States as baby, never made it past the seventh grade, and mistakenly believed she was allowed to vote. Paxton has cheered Ortega’s conviction for illegal voting and eight-year prison sentence, saying the case “shows how serious Texas is about keeping its elections secure.”

Clark Birdsall, a former prosecutor at the Dallas County DAs office who used to investigate elections-related crimes, represented Ortega at trial and argues that political rhetoric and lies about voter fraud fueled her extreme punishment. “This is right after Trump came into office, fabricating this narrative that millions of illegal voters cost him the popular vote,” Birdsall told the Observer. “It was strictly political what happened to her.”

Last year, the same state appeals court that will consider Mason’s case upheld Ortega’s sentence. She remains in prison and will likely be deported whenever she gets out; Trump has vowed to crack down on legal immigrants with felony convictions, which were already at risk for deportation before he took office.

Voting rights advocates worry such cases scare eligible voters away from the polls. In Texas, like in the vast majority of states, people convicted of a felony are stripped of their right to vote, but not forever. Under Texas law, people with felony convictions can vote again once they’ve finished the entirety of their sentence, including any period of parole or supervision. Angela Luckey, president of the NAACP chapter in Grand Prairie and a volunteer voter registrar, told me that explaining that and trying to register eligible citizens with criminal records has become particularly difficult since Mason’s case. “People are fearful, especially people who come out of prison,” she said. “Nobody wants to go back, not for voting. Even when I explain to people who are eligible [to vote], a lot of them don’t want to; they’re afraid it’s a big risk now.”

The illegal voting cases in Tarrant County have also raised questions about the power and discretion afforded to prosecutors, as well as racial disparities in the criminal justice system. As HuffPost recently reported, Mason, who is black, was one of nearly 4,000 people in Tarrant County who cast provisional ballots that were ultimately thrown out during the November 2016 election, yet she was the only one prosecuted for illegal voting. I asked Wilson, the Tarrant County DA, why Mason was singled out but her office didn’t provide a response.

“People are fearful, especially people who come out of prison. Nobody wants to go back, not for voting.”

And while Wilson worked with Paxton’s office to prosecute Ortega, Birdsall says officials in Dallas County, where Ortega once lived and voted, declined to pursue charges against her. As Ortega and Mason appeal multi-year prison sentences for mistakenly believing they could vote, a white Tarrant County justice of the peace avoided prison time last year despite pleading guilty to forging signatures to get his name on a primary ballot.

In an emailed statement, Wilson’s office told me it’s “not accurate” to compare the cases since Ortega and Mason turned down offers of probation in exchange for guilty pleas. Birdsall says Ortega rejected the plea deal because it would have meant deportation. Mason told me she turned down the offer because it would have put her back in federal prison.

The consequences for trying to vote have been severe for Mason. After conviction, she was ordered back into federal prison for nearly eight months. She missed her daughter’s prom and her son’s first football games in college. She says her mother still feels guilty for encouraging her to vote.

After her release from federal prison in May, Mason was sent to a halfway house, where she struggled to find and keep a job. Mason has since been allowed to return home with her family, but while she was staying at the halfway house, she was shocked to see that someone had dropped off a stack of voter registration cards. She warned people staying there to be careful and told them her story. “This shouldn’t happen to anybody else,” she said.

The ordeal has turned Mason, who calls herself a “political prisoner,” into an advocate for voter education and criminal justice reform. In a Facebook video she posted before surrendering to federal custody last year, Mason urged her followers to find out whether they’re eligible to vote—and, if so, to register. “We already know this is more about voter suppression, but we’re not gonna let that happen,” she said.

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