A few weeks ago, a court in Austin issued a landmark ruling requiring Texas election officials to provide a mail in ballot to any voter who requests one because of the coronavirus pandemic.
Under the Texas Election Code, only certain voters falling into a limited number of categories can request a mail-in ballot. This includes voters who have “a sickness or physical condition that prevents [them] from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.” The court (in a case that my organization, the Texas Civil Rights Project, participated in) ruled that voters’ lack of immunity to the coronavirus constituted a “physical condition” entitling them to vote by mail this year.
To many, this is common sense. But not everyone greeted the ruling as good news.
Just before the ruling came down, Texas Attorney General Ken Paxton’s office sent a menacing letter to the Texas Legislature threatening to prosecute anyone who tried to help people vote by mail— and by implication the voters themselves— because of the pandemic. In their view, trying to avoid the deadly coronavirus doesn’t qualify as “a sickness or physical condition” under the Texas Election Code, but was instead merely a “fear” or an “emotional reaction” that voters just need to get over. Those who proceed with voting by mail during the pandemic, Paxton’s office warned, risked prosecution for a state jail felony, carrying a prison sentence of up to two years and a $10,000 fine.
Earlier this month, Paxton doubled down on his threat, this time purporting to order local officials to not help people vote by mail because of the pandemic. He even suggested that local officials themselves may be subject to prosecution for helping people vote.
Although these letters, couched as “guidance,” have no legal weight compared to the judge’s ruling, the real intent of these letters was clearly just to scare voters from voting by mail during the pandemic. The idea of putting people in jail for trying to vote safely during the worst public health crisis in a century rightly strikes many in Texas as outlandish.
But this is no isolated incident by Paxton’s office and some other prosecutors in this state. They routinely use the immense power that Texas’s over-criminalized election laws give them to make voters afraid of voting. These letters are only the most over-the-top recent examples of a deliberate strategy by Paxton and his allies to suppress the right to vote in Texas and keep themselves in power indefinitely.
Texas election laws are over-criminalized
The over-criminalized Texas Election Code gives Paxton and his allies powerful ammunition to attack voters. According to Paxton’s office, there are an astounding 103 separate criminal offenses related to elections, ranging from Class C misdemeanors (punishable by a fine of up to $500) to second-degree felonies (punishable by up to 20 years in jail and a $10,000 fine).
Some of these are undoubtedly serious offenses, such as those who knowingly vote in an election in which they’re not eligible. But other offenses serve little purpose beyond making the process of voting harder and more complicated and giving Texas prosecutors the power to harass those who fail to successfully navigate the Election Code’s byzantine procedures. For example, a volunteer who registers a voter without being deputized by county election officials risks prosecution for a misdemeanor, as does a volunteer who even accidentally turns in a voter registration a single minute late.
Paxton and his allies have weaponized the Texas Election Code to intimidate voters
In recent years, Paxton and his allies have weaponized this web of criminal offenses to launch a spree of criminal prosecutions, targeting voters of color in particular. The most notorious recent example is that of Crystal Mason, one of Texas Civil Rights Project’s clients. Mason is a Black woman in Fort Worth who was sentenced to five years in prison for mistakenly trying to cast a provisional ballot while on supervised release from a prior conviction. The ballot was never actually counted.
She’s not alone: Rosa Ortega, a single mother of four children and permanent U.S. resident, was convicted of voting after mistakenly believing her green card status made her eligible to do so. The 8-year prison sentence she received stands in stark contrast to the punishment given out to a white male judge in the same area who knowingly forged signatures to get on the ballot (only five years’ probation).
This campaign of selective criminal prosecution doesn’t combat any kind of real systemic voter fraud that actually affects elections. Instead, as the Huffington Post discovered last year, nearly all of Paxton’s “voter fraud” prosecutions were likely for minor offenses that served mainly to inflate his prosecution statistics and justify new draconian criminal penalties in the Election Code. Despite what Paxton and his allies would like Texans to believe, every credible study released in recent years has found no evidence of widespread, systemic voter fraud.
Seen in that broader context, Paxton’s threat to send people to jail for seeking to vote safely during the coronavirus pandemic is not all that strange. It is instead just the latest, most flagrant instance of a years-long effort to make voting harder and scarier for those who the people in power fear.
The Texas legislature must stop Paxton’s reign of terror
Texans deserve better than an out of control attorney general working with his allies to stomp on their voting rights. Public officials like Paxton should be strengthening our democracy, not abusing their powers to shield themselves from accountability by the voters. Paxton’s latest missive threatening voters with jail time for trying to avoid the coronavirus makes it clearer than ever that the Texas Legislature must take steps to protect voters from renegade prosecutors. This includes:
Reviewing the Texas Election Code for criminal offenses that serve no purpose other than to intimidate voters from exercising their rights, and eliminate them
Conducting oversight of Attorney General Paxton’s use of his authority to prosecute Election Code offenses, in order to determine whether he has used them selectively against minorities and political opponents
Passing a nonbinding resolution calling on Governor Greg Abbott to pardon Crystal Mason and Rosa Ortega, and all others who have been the victims of this unjust campaign of selective criminal prosecution
It’s time for the legislature to reign in Paxton and his allies after years of misusing their prosecutorial powers and reverse the overcriminalization of Texas voting laws— before any more Texans get hurt.
James Slattery is a senior attorney for the Voting Rights program at Texas Civil Rights Project. @jcslattery