In Texas, criminal charges and misdemeanor convictions don’t automatically take away people’s voting rights

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After Crystal Mason cast a ballot in the 2016 presidential election in Tarrant County while on supervised release for tax fraud, she became a national figure in a persistent conflict between voting rights advocates and officials drawing a hard line against illegal voting.

Mason was sentenced to five years in prison for illegally casting a provisional ballot in that election, even though she says she didn’t realize that her criminal status made her ineligible to vote. A legal battle over her conviction is ongoing. But experts say the high-profile political firestorm surrounding her case also continues to dissuade eligible Texas voters who have been arrested, convicted of misdemeanors or completed their felony sentences from casting ballots — even though they’re legally allowed to participate in elections. “People believe they lose their right to vote simply because they were arrested,” said Bob Libal, a criminal justice advocate in Texas who works nationally to restore voting rights for people with convictions.

Texas law prevents convicted felons who are still completing their sentence, including any period of parole, community supervision and probation, from voting. But Texans are still allowed to cast ballots if they have been convicted of a misdemeanor (even if they’re currently serving a sentence) or are in jail awaiting trial on any criminal offense. And, under a little-known elections law, Texas felons who are actively appealing their convictions can legally cast a ballot, even if they are in prison.

This election cycle, there’s probably no more high-profile example of someone retaining the right to vote after being accused or convicted of a crime than the Republican presidential nominee. Former President Donald Trump will still be able to cast a ballot in Florida even though he was convicted on 34 state felony counts in New York, making him the first convicted felon to run for president.

That’s because Florida, where Trump maintains residency, defers to the laws of the state where the conviction occurred, and New York law only blocks people convicted of felonies from voting while they are incarcerated. Trump’s sentencing has been delayed until after the election.

In Texas, about 55,000 people are being held in county jails awaiting trial and are eligible to vote, according to data from the Texas Commission on Jail Standards. That doesn’t mean it’s easy for them to cast a ballot.

Only Dallas and Harris counties have Election Day polling places open to people in jail. And while people confined in jail can apply to vote early by mail under Texas law, the application for a mail-in ballot is due Oct. 25. That deadline leaves people who were arrested after that date and before Election Day with no avenue to cast a ballot.

Accessing a vote by mail application while incarcerated is not simple. In some counties, advocacy groups visit the jail to distribute the forms. In other counties, people do not even realize they can ask for the form. The Secretary of State’s Office doesn’t track how many people in jail request a ballot by mail.

“A lot of folks have this narrative that once you have a criminal background, you can’t vote,” said Jasmine Ross, who works for the Colorado Criminal Justice Reform Coalition. “That is true in some states, but we don’t practice permanent disenfranchisement here.”

Harris County was the first in the state to create a jail based voting program in 2021. Election officials set up voting machines in the county jail, with the polling place open to the general public, a legal requirement. Jail staff transport inmates who elect to vote to the polling place throughout Election Day.

“I’m glad we were the first in Texas to do it,” said Phillip Bosquez, assistant chief at Harris County Sheriff's Office. “And I absolutely think it can be replicated without a huge drain on the system.”

Texas lawmakers last year filed a bill that would prohibit polling places in jails, but the legislation never got traction. The bill’s author, Rep. Valoree Swanson, R-Spring, did not respond to inquiries about why she carried the bill.

Colorado, meanwhile, became the first state this year to pass a law mandating counties provide a jail-based polling location. The new law also requires jails to set up a place for mail-in ballots to be deposited.

Advocates say that laws like Colorado’s will help incarcerated people better transition back into their communities and reduce rates of recidivism.

“It really makes people feel like they are participating and involved in their community,” Ross said. “The most consistent feedback is that it's a way for them to think differently about how they can do better and how they can contribute to their communities.”

Research has found that individuals who had their voting rights restored post-incarceration had a lower likelihood of re-arrest compared to people who were prohibited from voting.

Other states have also taken action to restore voting rights. In 2023, Minnesota and New Mexico restored the right to vote for people who are on felony probation or parole. And in 2020, Washington, D.C. passed a law allowing individuals incarcerated for a felony conviction to vote.

But the varied rules in different places only adds to confusion that can prevent people with criminal charges or convictions from voting, even if they’re legally allowed to do so.

“One of the challenges is that there’s an extremely confusing patchwork of laws across the country when it comes to voting rights for people with felony convictions,” Libal said.

In March, a Texas appeals court overturned Mason’s conviction, acquitting her of the felony charge and seemingly putting an end to the eight-year saga. The court said there was no evidence that Mason knew she was ineligible to vote, a condition that must be met to convict someone of illegally voting in Texas.

The following month, though, Tarrant County District Attorney Phil Sorrells announced that he wanted Mason’s conviction reinstated. Sorrell’s office argued that Mason was fairly convicted, pointing to testimony from election staff who said Mason signed an affidavit requiring individuals to swear that “if a felon, I have completed all my punishment, including any term of incarceration, parole, supervision, period of probation, or I have been pardoned.”

“I want would-be illegal voters to know that we’re watching,” Sorrell told County Commissioners during a May briefing about why he was resurfacing the case.

The state and Mason's lawyers have filed briefs to the Court of Criminal Appeals. Mason's lawyers argue that the court should reaffirm the decision to acquit Mason, arguing she had no idea she was ineligible to vote. A final decision in Mason’s case could take months, said Savannah Kumar, an attorney representing her.

“It’s important to keep in mind that the highest criminal court in Texas has already made clear that innocent mistakes are not enough to get Texans thrown in prison,” Kumar said.