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Texas Senate passes bill to make illegal voting a felony again

Lawmakers debate whether ineligible voters would be prosecuted for making a mistake. Republicans had lowered the penalty to a misdemeanor two years ago.

Several people stand in line in front of a building near a sign that says “vote center”
Voters line up outside of the Hays County Independent School District Arnold Transportation Building voting center to cast their vote in the Texas General Elections Tuesday, Nov. 8, 2022 in Kyle, Texas. (Eli Hartman for The Texas Tribune)

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S.

The Texas Senate on Tuesday gave final approval, on a 19–12 vote, to legislation that would raise the penalty for voting illegally from a misdemeanor to a felony, a priority for Texas Lt. Gov. Dan Patrick and other conservative lawmakers who have worked to remake the state’s voting laws since the 2020 election, despite the lack of evidence of widespread voter fraud in Texas.  

If Senate Bill 2 becomes law, a person found guilty of the crime could face up to 20 years in prison and more than $10,000 in fines. 

The initial debate on the floor on Monday between Democratic lawmakers and Sen. Bryan Hughes, R-Mineola, the bill’s author, focused heavily on what constitutes illegal voting. Lawmakers disagreed over whether, under the bill, a person who mistakenly votes illegally could be prosecuted. Democrats pointed to examples such as a person who knows they have been convicted of a felony but doesn’t realize that makes them ineligible to vote or a person who knows they are not a U.S. citizen but does not know that makes them ineligible.

Some Democratic lawmakers told Hughes they were worried such voters would be prosecuted for “innocent mistakes.” 

“I just would ask you to consider the unintended consequences of your proposal,” Sen. John Whitmire, D-Houston, told Hughes. “We’re all against voter fraud. But to give it the gravity that you are today really frightens some of us who have worked with voters that are just not going to be as informed as perhaps you assume they are, such as someone coming off of parole, such as a 17-year-old high school student.”   

Others asked Hughes if he believed increasing the penalty would deter voters from casting a ballot. “What voters are you talking about?” Hughes said. “The goal is to deter illegal votes. Let me be very clear, yes, I want to deter illegal votes no matter who they’re for or against.”  

Hughes repeatedly defended the bill and said that individuals would be prosecuted only if they “knowingly and intentionally” voted illegally. Republican Sen. Joan Huffman, R-Houston, reiterated that a prosecutor would take into account all circumstances. 

Hughes also repeated the refrain that the bill was not a “radical change to the law.” 

“We are restoring the law to what it was,” he said. “It makes sense. It’s consistent with other criminal statutes.”

But Hughes’ bill does change the existing legal wording to what’s known as the “intent requirement.” The law as enacted under Senate Bill 1, passed two years ago, 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’ legislation would change that language to include 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.”

SB 1 had also downgraded the penalty for illegal voting from a second-degree felony to a Class A misdemeanor after it had been a felony for nearly 50 years. That change was a small part of an omnibus voting bill and largely went unnoticed until after Gov. Greg Abbott signed the bill into law. 

In 2021, Patrick said the “last minute” change should be corrected. This year, he added SB2 to his list of legislative priorities. The bill is one of several that were filed by Republican lawmakers in both chambers with the same intent. 

Rep. David Spiller, R-Jacksboro, who filed a bill similar to SB 2 in the House, said in January that  the higher penalties were needed to “ensure that we have safe and secure elections.”’ 

Voting rights advocates say they were glad to see lawmakers who oppose the bill bring up on Monday how SB 2 could open the door for potential “rogue prosecution of voters.”

Katya Ehresman, voting rights program manager for Common Cause Texas, said everyone knows a voter, a friend or a neighbor who could be affected by SB 2.

Ehresman said that in some scenarios a person might attempt to vote absentee by mail because they’re 65 or they’re disabled. If they can’t tell whether their ballot was received and are confused about whether their vote was counted, they might try to go vote in person and cast a provisional ballot. 

“That voter could be liable under SB 2 for a felony penalty” because they were aware they had already cast a ballot by mail, Ehresman said. “Especially if their mail-in ballot was counted that same day. That’s one kind of concern that we potentially see with SB 2.” 

Hughes on the floor Monday said that an ineligible voter attempting to cast a provisional ballot — which can often be caught before it’s counted — would not be enough to prosecute voters. 

“But we saw with Crystal Mason that’s clearly not the case,” Ehresman told Votebeat and the Texas Tribune. “And so really any Texan could be susceptible to risk and to fear of penalty if this becomes law.” 

The case of Crystal Mason, a woman in Tarrant County, 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 of her case is still pending. 

Pooja Salhotra is the East Texas reporter for the Texas Tribune.

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

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