Texas Senate revives effort to make illegal voting a felony

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This coverage is made possible through Votebeat, a nonpartisan news organization covering local election administration and voting access. The article is available for reprint under the terms of Votebeat’s republishing policy.

Republican leaders in the Texas Senate are intent on raising the penalty for voting illegally from a misdemeanor to a second-degree felony, despite the lack of evidence of widespread voter fraud in Texas. The effort comes nearly two years after the Legislature passed a sweeping voting bill, Senate Bill 1, that lowered the penalties for such crimes to a misdemeanor — and then almost immediately began discussing raising them back.

Senate Bill 2, filed Tuesday by state Sen. Bryan Hughes, R-Mineola, would also change the standard for determining someone’s intent for illegal voting, according to policy experts. The law as enacted under SB 1 says a person commits a crime if they “knowingly or intentionally” vote or attempt to vote in an election in which the person “knows they’re not eligible” to vote. Hughes’ new bill changes that language so that anyone who votes or attempts to vote in an election in which “the person knows of a particular circumstance that makes the person not eligible to vote” could face charges.

That means that rather than having to prove beyond a reasonable doubt that the voter knew they were casting their ballot unlawfully, prosecutors would only need to show beyond a reasonable doubt that the voter knew of the circumstance that made them ineligible to vote, said James Slattery, senior supervising legislative attorney with the Texas Civil Rights Project.

For example, if a voter knew they were not a U.S. citizen but did not know they were ineligible to vote, they could still be prosecuted. Or if someone knew they had been convicted of felony, were on parole and did not know they were not eligible to vote.

“This is a very nasty and very potentially consequential provision,” Slattery said. “That is why this intent requirement exists, because it’s not fair for people to go to jail for good-faith mistakes.”

Hughes did not respond to calls, emails and text messages seeking comment. A public hearing for the bill is set for Monday during a meeting of the State Affairs Committee, chaired by Hughes.

The penalty for such crimes was reduced to a misdemeanor last session as part of SB 1, also authored by Hughes. An amendment to lower the penalties was added by Rep. Steve Allison, R-San Antonio, during House debate on the legislation and went unnoticed until after the bill was signed by Gov. Greg Abbott. In 2021, Lt. Gov. Dan Patrick said the change made “last minute” should be corrected.

Now, Patrick has added the new bill to his list of legislative priorities for this session. If found guilty of the crime, a person could face up to 20 years in prison and more than $10,000 in fines. At least five other bills in the House and Senate were also filed with the same goal. Back in 2021, Abbott called for the penalty to be increased during a special legislative session, but House Speaker Dade Phelan, a Republican, expressed skepticism at the time — and the measure didn't reach Abbott's desk.

The case of Crystal Mason of Tarrant County has gained state and national attention and has been the subject of political debate after she was given a five-year prison sentence for voting illegally in 2016. Mason cast a provisional ballot while she was on supervised release from a federal conviction and did not know she was not eligible to vote.

When Mason was charged, the offense was a second-degree state felony. Since she didn’t know she was ineligible to vote, a filing in the Texas Court of Criminal Appeals asked a lower appeals court to reconsider the case. The outcome is still pending.

Some voting rights advocates say that if lawmakers want to continue to restrict voting access and increase penalties for election crimes, they should also invest in improving voter education and voter outreach in Texas. SB 2, they say, makes no effort to address that.

“SB 2 seems like an acknowledgement by the state that they do a crappy job of educating Texans about voting and a concession that they have no plans to do better,” said Anthony Gutierrez, executive director of Common Cause Texas. For the 2022 election cycle, the Texas Legislature allocated $3.5 million for voter education efforts. Advocates say that’s not enough to reach the more than 16 million registered voters in the state.

“The real problem here is, if you’re increasing the penalty for a crime, you would think the state would take some responsibility for telling people what the law is, so [voters] know not to break the law,” Guitierrez said, adding that the increased penalties could also keep some eligible voters away from the polls. “The public will see this, wonder what is going on and wonder if it’s even worth the hassle of going to vote if there’s voting police out there and if they risk getting charged with felonies if they’re not up to speed on all of the new election laws.”

At least two bills filed this session would also expand Attorney General Ken Paxton’s power to prosecute election crimes, after the Texas Court of Criminal Appeals ruled that he does not have authority to do so. Paxton’s office in the past two years has opened more than 300 investigations into potential election crimes by voters and election workers but has only convicted a handful.

SB 2 also says a person could be charged with voting illegally if they “knowingly or intentionally” attempt to vote more than once in an election; vote or attempt to vote using a ballot belonging to another person, or by impersonating another person; mark or attempt to mark any portion of another person’s ballot without the consent of that person, or without specific direction from that person how to mark the ballot; or vote or attempt to vote in an election in Texas after voting in another state in an election in which a federal office appears on the ballot and the election day for both states is the same day.

According to the secretary of state’s office, a person eligible to vote in Texas must be:

• A U.S. citizen.
• A resident of the county in which they intend to vote.
• At least 18 years old. (People may register at 17 years and 10 months.)
• Not convicted of a felony (unless their sentence is completed, including any probation or parole).
• Not declared mentally incompetent by a court of law.
• Registered 30 days before the election in which they plan to vote.

Natalia Contreras covers election administration and voting access for Votebeat in partnership with The Texas Tribune. Contact Natalia at ncontreras@gmail.com.

Disclosure: Common Cause and the Texas secretary of state have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.