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Hervis Rogers was so intent on casting a ballot in last year’s presidential primary that he waited six hours to vote, catching the attention of a CNN news crew when he became the last person to do so at his Houston polling place.
Rogers, now 62, debated leaving, he told CNN’s Ed Lavandera as he exited a polling center at Texas Southern University after midnight on March 4. “But I said to myself, ‘Nah. Don’t do that.’ It was set up for me to walk away, but I said, ‘No, I’m not going to do that.’ ”
More than a year later, Rogers was arrested on charges that he voted in last year’s Democratic primary while on parole. Under Texas law, it is illegal for a felon to “knowingly” vote while still serving a sentence, including parole. Doing so is a second-degree felony, punishable with a minimum of two years and a maximum of 20 years in prison. In at least 20 states, Rogers’s alleged vote would not be a crime.
Texas Attorney General Ken Paxton, who ordered the arrest, defended the charges on social media Friday night, tweeting, “Hervis is a felon rightly barred from voting under TX law . . . I prosecute voter fraud everywhere we find it!”
But Rogers’s lawyers and civil rights advocates argue that Rogers was not aware that he was ineligible to vote, meaning he should not be charged with “knowingly” committing fraud. His willingness to stand in line for six hours and submit to a cable-news interview proves it, they said.
“He’s really devastated,” said Andre Segura, the legal director for the ACLU of Texas and one of Rogers’s lawyers. “He does not want to go back to jail.”
Critics also questioned the timing of Rogers’s arrest last Wednesday, a day before the Texas Legislature convened for a special session to consider new voting restrictions that Democrats blocked in May. The legislation — one of the most far-reaching election proposals in the country — would, among other things, enact new criminal penalties for mistakes such as errors on mail ballots.
“What [Republicans] are doing is trying to signal to their primary voters that they are as far to the right wing of their party as they could possibly be,” said Chris Hollins, a former elections clerk in Harris county, home of Houston. “And they’re doing this not because they care about people but because they care about themselves and their own political aspirations.”
In Austin on Saturday, several Democratic lawmakers accused Republicans, including Paxton, of intentionally targeting minorities.
“You know, this guy thought he could vote,” said state Sen. Borris Miles of Houston, who held up a printed photo of Rogers in a Senate committee hearing on the legislation. “He was under the belief in his mind that he really could. Served his time, got a nice job, nice family, now, thought he could vote, just thought he was doing his civic duty.”
Texas Sen. Bryan Hughes, a Republican sponsor of the Senate bill, denied that the measure would restrict voting. “We’re always refining and trying to improve the process,” he said. “Unfortunately, this one has become bitterly partisan.”
Enacting voter restrictions in the name of improving election security has become a nationwide rallying cry for Republicans, who have pushed measures to limit voting in dozens of state legislatures. There is no evidence that widespread fraud tainted the 2020 election.
Paxton’s office did not respond to a request for comment, but he has regularly championed his tough stance on voting fraud.
Paxton is under investigation himself. Last month, the State Bar of Texas announced it would examine whether Paxton’s efforts to overturn the 2020 election results in Michigan, Georgia, Wisconsin and Pennsylvania amounted to “professional misconduct.”
At issue is a lawsuit Paxton filed seeking to invalidate those states’ electoral college votes — which delivered President Biden his victory. The Supreme Court dismissed the case within hours of its filing in December.
Paxton was unrepentant about the investigation, tweeting last month: “I will NEVER stop fighting to protect your votes.”
The attorney general is also under state investigation, accused of felony securities fraud for allegedly persuading investors to buy technology stocks without disclosing his own financial interest. He has called the charges politically motivated.
Some critics of Rogers’s arrest said Paxton intentionally targeted a Black voter to create a chilling effect for other Texans of color, who make up a disproportionate share of felons and might choose not to vote rather than risk arrest if they are unsure of their eligibility.
Critics also blamed Republican lawmakers for refusing to reform the voter registration system so that an ineligible voter like Rogers can’t be allowed to register. “They want a bunch of people to be in a state of confusion about their eligibility — including eligible voters,” Hollins said. “And if you’re in that state of confusion, they want you to stay home.”
Rogers was charged in Montgomery County, north of Houston, under a Texas law that allows criminal charges to be brought in adjacent counties to where the alleged crime occurred. Critics called it “forum-shopping,” noting that Paxton has a history of bringing charges in adjacent counties that are more conservative and more likely to have juries, grand juries and judges sympathetic to his cases.
In one instance last year, he sought to indict a Democratic election official in Harris County on charges that he had obstructed a poll watcher. But even in more conservative Montgomery County, where Paxton sought the indictment, a grand jury determined there was insufficient evidence.
Rodney Ellis, a Harris County commissioner, said the attorney general’s office didn’t inform anyone in his jurisdiction of Rogers’s impending arrest.
Paxton has been an outspoken crusader against voter fraud in Texas for years, garnering national headlines in 2019 when he falsely claimed that roughly 100,000 noncitizens had illegally registered to vote in Texas and more than half had cast ballots.
President Donald Trump amplified the news at the time, tweeting the numbers were “just the tip of the iceberg!”
It became quickly clear, however, that the vast majority of those counted were naturalized citizens who had been flagged incorrectly because of outdated state motor vehicle records.
Paxton has also touted his record of seeking fraud convictions — but he has little to show for it. According to the ACLU, the vast majority of defendants have wound up in prosecution diversion programs.
Segura, one of Rogers’s lawyers, said he remains optimistic that Rogers’s lack of awareness that he may have voted improperly will lead to his exoneration.
Rogers was released on bail Saturday evening.
Segura is also one of the lawyers for Crystal Mason, the Fort Worth mom convicted of illegally voting in 2016 while on supervised release for a federal conviction for tax fraud.
Mason was sentenced to five years but was released on parole. Her case is before a Texas appeals court on several questions, including whether Mason should have been convicted given the evidence that she didn’t know she was ineligible to vote and whether she even voted illegally given that she cast a provisional ballot that was discarded after officials discovered she was not registered.
As a result of her prosecution, Mason nearly lost her home to foreclosure, and her son lost his football scholarship to college. She initially declared that she would never vote again. But she has since become an outspoken advocate for voting rights after concluding that this is what Texas Republicans want — for voters of color like her to be afraid to vote.
“It was to make an example out of me,” she told the ACLU. “It was cruel. [They] actually know that I had no intention of doing anything wrong at all.”
Eva Ruth Moravec in Austin contributed to this report.
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