Texas Stamp


PD-0881-20 03/31/2021

1. “The Illegal Voting statute requires that ‘the person knows the person is not eligible to vote.’ Tex. Elec. Code §64.012(a)(1). This Court’s precedent, notably Delay v. State, 465 S.W.3d 232 (Tex. Crim. App. 2014), confirms that the State must prove that the person knew her conduct violated the Election Code. Did the court of appeals err in holding that ‘the fact that [Ms. Mason] did not know she was legally ineligible to vote was irrelevant to her prosecution’?”

2. “Did the court of appeals err by adopting an interpretation of the Illegal Voting statute that is preempted by the federal Help America Vote Act—specifically by interpreting the Illegal Voting statute to criminalize the good faith submission of provisional ballots where individuals turn out to be incorrect about their eligibility to vote?”

3. “In an issue of first impression, did the court of appeals misinterpret the Illegal Voting statute by holding that submitting a provisional ballot that is rejected constitutes ‘vot[ing] in an election’?”


After Mason was convicted of a federal felony, her Tarrant County voter registration status was changed to cancelled. Related to the cancellation, the elections administration had mailed Mason two notices—one that notified her that her status was being examined and another that notified her of the cancellation and her right to appeal. But when the notices were sent, Mason was not living at her registered address because she was in prison. After she was granted supervised release, she went to vote in the 2016 general election. The poll worker could not find Mason’s name but allowed her to cast a provisional ballot. Her ballot was rejected, and Mason was later convicted of illegal voting. See Tex. Elec. Code § 64.012(a)(1) (“A person commits an offense if the person: (1) votes or attempts to vote in an election in which the person knows the person is not eligible to vote.”).

On appeal, Mason argued that the evidence was insufficient for two reasons. First, she was not ineligible. She was re-enfranchised under Tex. Elec. Code § 11.002(a)(4)(A) when she was released because, at that time, she fully discharged her sentence under federal law. In her view, Section 11.002(a)(4)(A)’s requirement that to fully discharge a sentence for purposes of re-enfranchisement includes the discharge of a term of “supervision” is only applicable to supervision imposed under Texas law. Second, she claimed that she did not “vote” because she only cast a provisional ballot, which is conditioned on her eligibility.

The Second Court of Appeals rejected both arguments. Initially, it observed that the offense requires that she voted while knowing that she had a felony conviction for which she was on supervised release, not that she voted while subjectively knowing that she was ineligible. It then held that federal supervised release is included within the meaning of Section 11.002(a)(4)(A). It also concluded that “to cast or deposit a ballot—to vote—can be broadly defined as expressing one’s choice, regardless of whether the vote actually is counted.” Further, the provisional voting authorization in the Help America Vote Act (HAVA), adopted by Texas, requires that the person be registered and eligible; it does not contemplate provisional ballots for ineligible voters. And the would-be voter, not the State, has the burden to confirm eligibility.

Mason also claimed that HAVA preempts the illegal voting offense in Tex. Elec. Code § 64.012(a)(1). The court of appeals held that there was no indication in HAVA that Congress intended to preempt criminal offenses related to voting when eligibility is a state-law issue.

Mason argues that the offense, according to Delay and the statutory text, requires that the person know their conduct violates the Election Code. Mason’s knowledge that she was on supervised release should not be enough to satisfy the mens rea element. Because voting is not criminal conduct, a person who does not know she is ineligible does not have a guilty state of mind. She asserts that when an offense criminalizes otherwise innocuous conduct based on particular circumstances, this Court has held that “‘the culpable mental state of “knowingly” must apply to those surrounding circumstances.’” See McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989) (analyzing Tex. Penal Code §31.07).

Next, she claims that the court of appeals’ interpretation of illegal voting in Tex. Elec. Code § 64.012(a)(1) is preempted by HAVA. HAVA ensures that those who think they are eligible can cast a provisional ballot, and it contemplates that people will turn out to be incorrect. “Nothing in HAVA contemplates criminal prosecution for individuals who made such good faith mistakes.” HAVA puts the burden on the State to determine whether to count the ballot after the person leaves the polling place. The lower court’s decision will deter most people from casting a provisional ballot, even if they are eligible.

Lastly, Mason contends a provisional ballot does not constitute casting a “vote.” The Rule of Lenity demands that any ambiguity be resolved in the defendant’s favor. Uncounted ballots are not “votes” because they are not used to determine whether a candidate received the majority of votes needed to be elected. Tex. Elec. Code § 2.001(a). The lower court’s “view that ‘to vote––can be broadly defined as expressing one’s choice, regardless of whether the vote actually is counted,’ renders the attempt offense superfluous.  

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