STATE AFFAIRS ADVANCES ELECTION OFFENSE BILL

(AUSTIN) — A person who is ineligible to vote would not have to know that they are ineligible to vote to be convicted of illegal voting under a bill presented before the Senate State Affairs Committee on Monday. Mineola Senator and committee chair Bryan Hughes told members that it is well understood that ignorance of the law is no defense. "Under SB 2, if you are a felon, and you know that you are a felon, you don't have to also know that it's illegal for felons to vote," said Hughes. "If you're not a citizen, you have to know that you're not a citizen, but you don't have to know that citizens cannot vote." His bill would also restore the penalty for illegal voting back to a class 2 felony, after it was reduced to a class A misdemeanor by the Legislature last session. The low bill number, second lowest only to the state budget, indicates this measure is among Lt. Governor Dan Patrick's top priorities for the 88th Session.

State Affairs Chair and Mineola Senator Bryan Hughes advanced his bill to raise the penalty for voting illegally from a misdemeanor to a felony Tuesday.

At issue is the case of Crystal Mason, a woman who was convicted and sentenced to five years in prison for casting a provisional ballot in the 2016 election while she was still under supervised release for a previous felony conviction. Texas law permits those convicted of felonies to vote once their debt to society has been discharged, but this includes all post-release provisions such as probation or parole. Mason said she didn't know she was ineligible and cast the illegal vote in error. The Second Court of Appeals ruled that the fact that she wasn't aware of her status “was irrelevant to her prosecution,” but the Court of Criminal Appeals disagreed. "The court below erred by failing to require proof that the Appellant had actual knowledge that it was a crime for her to vote while on supervised release," the court found in its ruling on Mason v. Texas. They remanded the case back to the lower court to reconsider in light of this ruling.

According to representatives of the Office of Attorney General, this is a significant departure from established precedent. "Prior Courts of Criminal Appeal and other appellate courts ruled that the knowledge required was as to the condition that caused the ineligibility," said Jonathan White, a former director of the Division of Election Integrity. Absent a confession, he said, the new ruling would make it all but impossible to successfully prosecute a case where a person is alleged to have voted while ineligible. "I think after this opinion, it would be very hard to prove with circumstantial evidence," he said. "In my experience of prosecuting election crimes for 15 years, I never had someone admit that they knew the law and they knew that they were violating it, what they say is 'Gosh, I made a mistake, I didn't know' - whether that's true or not."

The second part of the bill would return the penalty for illegally voting to a class 2 felony, an offense which carries a potential prison sentence of two to twenty years. Last session, the Legislature passed SB 1, which contained a number of changes to state election code, including lessening the sentence for voter fraud to a class A misdemeanor. Though not in favor of the provision, Hughes said the rest of the bill made up for it. "Back in 2021, there was so much positive reform in SB1 that it made sense to pass the bill even with this amendment included, knowing that we could come back and clean it up and that's what we're doing now," said Hughes, who carried that measure in the Senate in 2021. Hughes said that the offense had been a felony for almost 50 years before the 87th Legislature changed it. "These offenses are serious and they should be treated as such," he said.

The committee advanced the bill to the full Senate on a vote of 7 to 3.

The Senate will reconvene Tuesday, February 28, at 11 a.m.

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