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Are Voting Crimes Different?

As a general rule, relying on the kindness of prosecutors to not abuse poorly written laws by prosecuting people who did no intentional wrong is not a viable solution. Sure, some prosecutors will say they would never abuse their authority, but then, when the decide to prosecute, they believe they are on the side of justice, whatever that means. The problem is “justice” means whatever the prosecutor believes it means, and that’s not at all how law is supposed to work. Yet, that’s how it worked for Texas defendant and erstwhile voter, Crystal Mason

.When a Texas appeals court reversed itself last week and acquitted Crystal Mason, a mother of three, in a voting fraud case, it ended almost a decade in which Ms. Mason lived in fear of being torn away from her family and imprisoned.

In 2018, she was sentenced to a five-year prison term for illegally casting a provisional ballot in the 2016 election.

While the prosecution of Ms. Mason may have failed, it still could have broader consequences in chilling people’s willingness to exercise their right to vote. Few would want to vote if it means going through what Ms. Mason did. As such, the reversal in her case cannot undo much of the damage that irresponsible Texas prosecutors wrought.

Gregory Nolan, of the firm Brown, White and Osborn (you’ll never believe who the “White” is) saw the prosecution as “irresponsible,” and indeed, it was a pretty outrageous exercise of prosecutorial power. Mason didn’t vote with any malign or fraudulent purpose. She just wanted to vote, like anyone else. The problem was that she was on supervised release following a federal conviction, and under Texas law, she was precluded from voting.

But when she arrived at her precinct, she was surprised to learn that her name wasn’t on the rolls, so she cast a provisional ballot. In return for trying to do her civic duty, Texas prosecutors tried to put her in prison.

If she wasn’t entitled to vote, regardless of whether you’re of the view that being on supervised release should impair her franchise, it would have been sufficient to reject her provisional ballot. No harm, no foul. Unless, of course, she was had malevolent intent. But she didn’t.

An appellate court agreed with prosecutors’ theory and upheld her conviction, while noting: “The evidence does not show that she voted for any fraudulent purpose.”

The issue in the case was whether the crime was committed merely by her voting when she was not entitled to vote, or whether she had to know that she was prohibited from voting and tried to vote anyway. The conviction was upheld by the appellate court, but the Texas Court of Criminal Appeals reversed, holding that the crime required the mens rea of her knowing that she was prohibited from voting. The problem is that this case, particularly given the media attention due to the extraordinary five year sentence, will chill others who might have some doubt as to whether they have the right to vote. Who wants to go through what Mason went through?

To avoid such misguided prosecutions, prosecutors need to adopt the maxim that when a potentially criminal act has a close relationship to a constitutional right, only cases with robust evidence of criminal intent should be prosecuted.

A lot of crimes have a close relationship to a constitutional right like weapons possession, for example. Does using the word “robust” salvage a poorly written law from an abuse of prosecutorial discretion? Did Crystal Mason’s prosecutor think he was pushing a crap case that should have been dropped, or did he believe that he was defending the integrity of our electoral process from illegal voting? Is the electoral process unworthy of protection? It’s mostly a matter of perspective.

Just because Nolan, a former federal prosecutor, and I wouldn’t have prosecuted Mason doesn’t mean she was prosecuted in bad faith, or unjustly. It just means the prosecutor who handled the case thought his “robust” case was the right thing to do. Or maybe he was abusing his authority, but just because I wouldn’t have taken the case doesn’t mean his intentions were bad.

Prosecutorial restraint is especially critical in the context of former felons who impermissibly try to cast a ballot, like Ms. Mason. As a Brennan Center report explains: “The laws concerning eligibility vary from state to state and can be confusing: Different voters are disenfranchised for different convictions for different lengths of time.”

Many criminal laws vary from state to state. Many criminal laws implicate constitutional rights. Despite the platitude that ignorance of the law is no defense, the reality is that most people are ignorant of the law and, consequently, engage in conduct that was never intended to commit a crime but nonetheless does. This happens all the time, and not even the cops are held to knowing what is and isn’t a crime. If cops can’t figure it out, how the hell was Crystal Mason supposed to know?

The exercise of prosecutorial discretion has its place, such as where a crime has been committed but circumstances strongly militate against its prosecution. Consider an imperfect self-defense prosecution, where a prosecutor has a viable case and could probably get a conviction, but decides that the interest of justice favors the defendant and so he drops the case anyway.

But Nolan’s faith in the good will of prosecutors to compensate for poorly written, unclear laws, invites exactly the problem he’s arguing against. There is no guarantee that prosecutors will think and act the way “we” want them to. There is no guarantee their perception of “justice” will cause them to exercise discretion the way we would prefer, whether we call it “robust” or anything else.

As long as poorly written laws create a crime that can be prosecuted, it will be because some prosecutor believes he’s on the side of truth and justice in his own head. Trusting prosecutors to do better is no substitute for clearly written laws, even when they implicate a constitutional right like voting. Especially so.

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