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A Fort Worth woman jailed for casting a provisional ballot in the 2016 presidential election while on supervised release for a federal conviction is asking the Texas Court of Criminal Appeals to overturn her conviction on illegal voting charges, according to legal documents filed Monday.
Crystal Mason said she cast her ballot — which, like most provisional ballots, was ultimately not counted — on the advice of a poll worker. Mason told the court during her trial and appeals that she did not realize she was ineligible to vote under Texas law, which required her to first complete her sentence on a federal tax fraud conviction.
The request for review by the state’s highest criminal court was filed by Mason’s attorneys as well as the American Civil Liberties Union of Texas, the national ACLU and the Texas Civil Rights Project.
“Crystal Mason never wanted to be a voting rights advocate,” said Alison Grinter, criminal defense attorney for Mason, in a statement released by ACLU Texas. “She never wanted to be on the news or have her name become a rallying point in a politically divisive battle. Hers is a textbook case for why provisional ballots were created and why they must not be criminalized. Crystal’s fight is a fight for every Texan.”
Her legal team argues that Mason did not intend to vote illegally and that the provisional ballot is specifically for voters with questions about ineligibility.
They also point out that her vote was never counted and that an appellate court should not have upheld her conviction earlier this year after acknowledging that she was unclear on the law, a decision they say conflicts with the Federal Help America Vote Act.
“Like her, thousands of voters cast provisional ballots during every federal election,” said Emma Hilbert, attorney for the Texas Civil Rights Project. “Criminalizing those actions jeopardizes our democratic values and risks silencing the voices of voters across this state and nation.”
Provisional ballots, created in 2002, are cast at polling places when the voter’s eligibility is in question. Most are not counted, and tens of thousands are cast in major elections by voters who believe they are eligible and who sign an affidavit claiming eligibility — a requirement for a provisional vote.
The votes are then reviewed after the election and voters are notified within 30 days whether their votes counted. Most are rejected on the grounds that, like Mason, the voter was ineligible.
Mason was arrested a few months after learning that her ballot was not counted. Prosecutors argued that she knew she was violating the law prohibiting felons from voting before completing their sentences, while Mason said she did not read that portion of the affidavit before signing it.
For “illegally voting,” she was sentenced to five years in prison. The conviction landed her back in federal prison for months, and she was released into a halfway house in May of this year.
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 March, a state appellate court upheld her conviction and five-year prison sentence.
Texas lawmakers are working on changing the law to protect voters like Mason, filing bills for the upcoming session that would allow felons to vote while they are still serving their sentences — as long as they are not still incarcerated.
If passed, the two bills, authored by Rep. Senfronia Thompson, D-Houston, and Rep. Carl Sherman Sr., D-DeSoto, would mark the first time since 1997 that Texas broadened voting rights of convicted felons, according to Rice University’s Kinder Institute of Urban Research.
A similar bill never made it out of committee during the 2019 legislative session. A 1997 law signed by then-Gov. George W. Bush eliminated the two-year waiting period for felons to be able to vote after completing their sentences.
“I’m more energized than ever before, and I refuse to be afraid,” Mason said in the ACLU statement. “I thought I was performing my civic duty and followed the election process by filling out a provisional ballot. By trying to criminalize my actions, Texas has shown me the power of my voice. I will use my voice to educate and empower others who are fighting for their right to vote.”
This story was originally published by the Texas Tribune.
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