Texas Senate again approves increasing penalty for illegal voting to a felony, regardless of intent

The Texas Senate on Wednesday got closer to raising the penalty for voting illegally from a misdemeanor to a felony, as well as making it easier to convict a voter without proving they intended to cast an illegal ballot.

The legislation is a priority for Texas Lt. Gov. Dan Patrick and other Republican lawmakers who have pushed for it since the 2021 change lowering the penalty to a misdemeanor, despite no evidence of widespread voter fraud in Texas.

Known as House Bill 1243, it was approved by the Senate on a 19–11 vote without debate. The proposal initially only raised the penalty of illegally casting a ballot from a misdemeanor to a felony.

However, state Sen. Bryan Hughes, R-Mineola, added language this week saying 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” could be prosecuted.

The addition by Hughes means the bill must now go back to the House, where it faces an uncertain path. Another piece of legislation, Senate Bill 2, contained the same language Hughes has now inserted into this bill. SB 2 died in the House after it did not meet a key deadline.

The law currently requires prosecutors to prove the person intended to cast an illegal ballot, a high hurdle. The change would eliminate that intent requirement and leave someone vulnerable to prosecution for an innocent misunderstanding. That means, for example, that 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 to cast a ballot, could be prosecuted if the bill becomes law.

A person found guilty would face up to 20 years in prison and more than $10,000 in fines.

Some voting rights advocates say that given the lack of evidence of widespread voter fraud, the bill’s purpose is to intimidate voters — especially voters who have been previously incarcerated.

“Why increase the penalty? Why this, why now?” said Joyce LeBombard, president of the League of Women Voters of Texas. “This will impact people that are already unsure about whether they should go or vote. They’re potentially not going to vote because of a concern that they might make a mistake.”

Maggie Luna, 42, of Austin, who had been incarcerated on past convictions, voted for the first time in 2020 after she had completed her parole. For years and while behind bars, Luna was told she’d never be able to vote. But after her release, she learned that wasn’t true and that she could, in fact, cast a ballot once her parole was completed. Luna now helps advocate for others who have been incarcerated and helps them to understand their rights through the Texas Center for Justice and Equity.

After her release, Luna struggled to find a stable job and housing due to her felony conviction. That’s why the thought of this bill becoming law “terrifies” her. And she worries that others who have been incarcerated but have regained their eligibility to vote will be deterred from the polls.

“Getting a felony in Texas is for life. You can’t get a job, you can’t apply for housing,” Luna said. “I don’t want to take that chance. People are just not going to take that chance.”

Illegally voting was a second-degree felony in Texas for nearly 50 years. In 2021, lawmakers downgraded the penalty to a Class A misdemeanor, a largely unnoticed part of an omnibus voting bill, Senate Bill 1.

Patrick subsequently said what he described as a “last-minute” change should be corrected, and this year, that made his list of legislative priorities.

According to the Secretary of State’s Office, to be eligible to vote in Texas, someone must be:

• A U.S. citizen.
• A resident of the county in which they intend to vote.
• At least 18 years old. (People may register at 17 years and 10 months.)
• Not convicted of a felony (unless their sentence is completed, including any probation or parole).
• Not declared mentally incompetent by a court of law.
• Registered 30 days before the election in which they plan to vote.

The effort to raise the penalty also comes after the case of a Tarrant County woman given a five-year prison sentence for voting illegally in 2016 rose to national attention.

Crystal Mason cast a provisional ballot while on supervised release from a federal conviction and later said she did not know she was ineligible to vote. Election safeguards prevented the vote from being counted. 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 the appeal is still pending.

Texas is already one of the most restrictive and most difficult states in which to vote, as it requires voters to show an identification card at the polls, limits who can vote by mail, and lacks online voter registration. For some immigrant communities, newly naturalized citizens, and those who don’t speak English fluently, increasing the penalty could create additional barriers to the ballot box in a system that is already confusing, advocates say.

For instance, a third of Texans of Asian American and Pacific Islander background are not English proficient, and the vast majority of counties in the state do not offer voter registration forms, voter information, or ballots in Asian languages, said Lily Trieu, interim executive director at Asian Texans for Justice. That language barrier increases their chances of misunderstanding the rules.

“Our community is particularly at risk. We’ve already created a system where if you don’t speak English, it can be even more confusing,” Trieu said. “And when you tell them, ‘Hey, if you mess up, this is now a felony,’ you’re creating an additional hurdle.”

Natalia Contreras covers election administration and voting access for Votebeat in partnership with The Texas Tribune. Contact Natalia at [email protected]

Disclosure: The League of Women Voters of Texas has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

Stories like the one you just read come to life at The Texas Tribune Festival, the Tribune’s annual celebration of big, bold ideas happening Sept. 21-23 in downtown Austin. For just a little bit longer you can grab a discounted ticket to this year’s event, but act fast — savings end on May 31! Buy now and save.