FORT WORTH, Texas and Washington, D.C. — On Thursday, a bipartisan group of former state and federal prosecutors, along with the States United Democracy Center, filed an amicus brief in the Texas Court of Criminal Appeals in support of Crystal Mason, a Tarrant County woman who is appealing her conviction for illegal voting, arguing that her prosecution was “far outside the bounds of any reasonable exercise of prosecutorial power.” Cooley LLP and Susman Godfrey LLP served as co-counsel on the brief on a pro bono basis.
Ms. Mason cast a provisional ballot in the 2016 election, believing she was eligible to vote. State election officials determined that she was not eligible to vote because she was, at the time, on supervised release for a federal conviction. Her ballot was not counted. Despite not knowing that she was ineligible, and despite the absence of intent or any harm, county prosecutors charged Ms. Mason with illegal voting.
The brief lays out how the prosecution of Ms. Mason is inconsistent with Texas’s illegal voting statute and with the fundamental principles of prosecutorial discretion. Her prosecution also risks seriously undermining an already vulnerable public trust in the criminal justice system. The brief is also signed by a bipartisan group of eleven prominent former prosecutors from Texas and around the country, including seven members of the States United Bipartisan Advisory Board. The list of signatories: Donald B. Ayer, Gregory A. Brower, Paul Coggins, John Farmer, Jonathan S. Feld, Sarah R. Saldaña, Richard H. Stephens, Matthew D. Orwig, Joyce White Vance, William F. Weld, and Grant Woods (full bios below).
“As it stands, Ms. Mason’s prosecution lies far outside the bounds of any reasonable exercise of prosecutorial power, and threatens the integrity of our democratic process and our electoral integrity as a nation,” said Donald B. Ayer, former Deputy Attorney General at the U.S. Department of Justice under President George H.W. Bush. “The knowledge requirement alone makes the prosecution here unjustified since there was no showing Ms. Mason knew she was not allowed to vote. And going after someone like her without any legal basis fundamentally undermines the right to vote by intimidating people from submitting provisional ballots in ambiguous cases.”
“During my service as U.S. Attorney for the Northern District of Texas in Dallas, I strove to use my power as a prosecutor to preserve the civil rights of all Texans,” said Sarah R. Saldaña, who served as U.S. Attorney in the Northern District of Texas and Director of U.S. Immigration and Customs Enforcement during the Obama Administration. “As a proud Tejana who has continued to engage in the battle to preserve the voting rights of my community and others, I believe there will indeed be consequences for allowing the treatment of Crystal Mason to stand as a precedent for potentially disenfranchising thousands of likely voters. The decision of the district attorney’s office runs counter to what should be the goal of all prosecutors in Texas to do justice, and it risks harming the reputation and the functionality of the criminal justice system for all Texans.”
“This unjust prosecution of Crystal Mason exemplifies our country’s unfortunate relationship between race, voting, and criminal justice,” said Christine P. Sun, Legal Director at the States United Democracy Center. “Furthermore, as demonstrated by the breadth of the signers on this brief, upholding the right to vote is not a partisan issue — it is a matter of protecting and strengthening our democracy.”
Mason, who faces five years in prison, is not the only Black person who is being unfairly targeted by Texas prosecutors. At the same time, state lawmakers in Texas are working to disenfranchise thousands in the state and push false narratives about the prevalence of voter fraud. Ms. Mason’s case was in the news earlier this week for the stark contrast between her sentencing for an honest error at the voting booth (five years) and the first sentencing of a Jan. 6 insurrectionist (eight months). Ms. Mason is Black; the insurrectionist is white. On Wednesday, she met with Texas lawmakers in Washington, D.C. who are fighting to protect voting rights during the special session in the state legislature.
Key excerpts from the brief are included below:
Prosecutors wield tremendous power. The impact of their decisions regarding whether and how to seek to curtail individuals’ liberty can reverberate well beyond the specifics of any given case, in ways both positive and destructive. Appropriately, our system imposes important checks on this power to help ensure it is used only to further the aims of justice. This Court’s review of Appellant Crystal Mason’s conviction for illegal voting is one such check.
Ms. Mason’s prosecution was far outside the bounds of any reasonable exercise of the prosecutorial power.
Crystal Mason’s conviction is fundamentally at odds with the plain language and intent of the illegal voting statute, Tex. Election Code § 64.012(a)(1), which does not prohibit a person from voting a provisional ballot when they do not know that they are ineligible to vote. To leave Ms. Mason’s conviction undisturbed would permit prosecutors to effectively step into the shoes of Texas legislators and rewrite the law, transforming a statute targeting intentional fraud into a sweeping criminalization of good faith efforts to participate in the democratic process.
Prosecuting the submission of a provisional ballot by someone who incorrectly believes they are eligible to vote is inconsistent with the proper interpretation of the illegal voting statute and fundamental principles of prosecutorial discretion. Ms. Mason’s prosecution undermines public trust in the law and those making prosecutorial decisions.
Ms. Mason’s prosecution sends the troubling message that casting a provisional ballot carries a serious risk, with a consequent chilling effect on the use of provisional ballots. Such chilling is likely to disproportionately impact minority voters, who tend to cast more provisional ballots.
Full biographies for signatories below.
Donald B. Ayer served as Deputy Attorney General at the U.S. Department of Justice from 1989 to 1990; Principal Deputy Solicitor General of the United States from 1986 to 1989; and U.S. Attorney for the Eastern District of California from 1981 to 1986. He has argued nineteen cases in the U.S. Supreme Court.
Gregory A. Brower served as Assistant Director and Deputy General Counsel of the Federal Bureau of Investigation from 2016 to 2018; U.S. Attorney for the District of Nevada from 2008 to 2009; and Inspector General of the U.S. Government Publishing Office from 2004 to 2006.
Paul Coggins served as the U.S. Attorney for the Northern District of Texas from 1993 to 2001, and was twice appointed as Special Assistant Attorney General for Texas.
John Farmer has been an Assistant U.S. Attorney, New Jersey Attorney General, Senior Counsel to the 9/11 Commission, Dean of Rutgers Law School, and now serves as Director of the Eagleton Institute of Politics. He has also served on New Jersey’s Executive Commission on Ethical Standards, Advisory Committee on Judicial Conduct, and the State Commission of Investigations.
Jonathan S. Feld served as an Associate Deputy Attorney General at the U.S. Department of Justice; Assistant U.S. Attorney for the District of New Jersey; Assistant Special Counsel to the Select Commission established by the State of Rhode Island to investigate the collapse of its privately-insured financial institution system; and Associate Independent Counsel for the investigation of the U.S. Department of Housing and Urban Development.
Sarah R. Saldaña served as the U.S. Attorney for the Northern District of Texas (Dallas) from 2011 to 2014 and was appointed to the Attorney General’s Advisory Committee during her tenure. Since 2004, she had served as an Assistant U.S. Attorney in the same office, both as a line prosecutor, including service as the District’s Election Officer, and as Deputy Criminal Chief of the Major Fraud and Public Corruption unit. Most recently, she served as Director of U.S. Immigration and Customs Enforcement from 2014 to 2017.
Richard H. Stephens served as Interim U.S. Attorney (twice), First Assistant U.S. Attorney and Chief of the Criminal Division of the U.S. Attorney’s Office for the Northern District of Texas. In addition, he served as Assistant District Attorney for Dallas County, Texas.
Matthew D. Orwig served as the U.S. Attorney for the Eastern District of Texas from 2001 to 2007.
Joyce White Vance is a distinguished professor of the practice of law at the University of Alabama School of Law. She served as the U.S. Attorney for the Northern District of Alabama from 2009 to 2017 and during 25 years with the office served as both the appellate chief and as a criminal prosecutor.
William F. Weld served as the U.S. Attorney for Massachusetts from 1981 to 1986; as the Assistant U.S. Attorney General in charge of the Criminal Division from 1986 to 1988; and as Governor of Massachusetts from 1991 until 1997.
Grant Woods served as Attorney General of Arizona from 1991 to 1999. General Woods was President of the Conference of Western Attorneys General and chaired the Civil Rights and Supreme Court committees for the National Association of Attorneys General.
About the States United Democracy Center
The States United Democracy Center is a nonpartisan organization advancing free, fair, and secure elections. We focus on connecting state officials, law enforcement leaders, and pro-democracy partners across America with the tools and expertise they need to safeguard our democracy. For more information, visit www.statesuniteddemocracy.org.