NO.

PD-0881-20

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

CRYSTAL MASON,
Appellant,
V.

STATE OF TEXAS,
Appellee.

From the Second Court of Appeals,

Cause No. 02-18-00138-CR

Trial Court Cause No. 148710D

From the 432nd District Court of Tarrant County, Texas
The Honorable Ruben Gonzalez, Jr. Presiding

APPELLANT’S BRIEF ON THE MERITS

Thomas Buser-Clancy (Lead Counsel) Alison Grinter
Texas Bar No. 24078344 Texas Bar No. 24043476
Andre Ivan Segura 6738 Old Settlers Way
Texas Bar No. 24107112 Dallas, TX 75236
Savannah Kumar Telephone: (214) 704-6400
Texas Bar No. 24120098 [email protected]
ACLU Foundation of Texas, Inc.
5225 Katy Freeway, Suite 350
Houston, TX 77007
Telephone: (713) 942-8146
Facsimile: (915) 642-6752
[email protected]
[email protected]
[email protected]
*Additional counsel on following page
ORAL ARGUMENT NOT GRANTED
NO. PD-0881-20

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

CRYSTAL MASON,
Appellant,
V.

STATE OF TEXAS,
Appellee.

ADDITIONAL COUNSEL FOR APPELLANT

Emma Hilbert Sophia Lin Lakin**

Texas Bar No. 24107808 New York Bar No. 5182076
Hani Mirza Dale E. Ho**
Texas Bar No. 24083512 New York Bar No. 4445326
Texas Civil Rights Project American Civil Liberties Union
1405 Montopolis Drive 125 Broad Street, 18th Floor
Austin, TX 78741-3438 New York, NY 10004
Telephone: (512) 474-5073 ext. 105 Telephone: (212) 519-7836
Fax: (512) 474-0726 Fax: (212) 549-2654
[email protected] [email protected]
[email protected] [email protected]

Kim T. Cole
Texas Bar No. 24071024
2770 Main Street, Suite 186
Frisco, Texas 75033
Telephone: (214) 702-2551
Fax: (972) 947-3834
[email protected]

**pro hac vice application

forthcoming
IDENTITY OF PARTIES AND COUNSEL

APPELLANT:
Crystal Mason
TRIAL COUNSEL FOR APPELLANT:

Warren St. John

801 Cherry Street, Suite 2020
Fort Worth, TX 76102

COUNSEL BEFORE COURT OF APPEALS FOR APPELLANT:

Thomas Buser-Clancy
Andre Ivan Segura
ACLU Foundation of Texas, Inc.
5225 Katy Freeway, Suite 350
Houston, TX 77007

Rebecca Harrison Stevens

Emma Hilbert
Hani Mirza
Texas Civil Rights Project
1405 Montopolis Drive
Austin, TX 78741-3438

Alison Grinter
6738 Old Settlers Way
Dallas, TX 75236

Sophia Lin Lakin

American Civil Liberties Union
125 Broad Street, 18th Floor
New York, NY 10004

Kim T. Cole
2770 Main Street, Suite 186
Frisco, Texas 75033

3
TRIAL COUNSEL FOR THE STATE:

Matt Smid
John Newburn
Assistant District Attorney
401 W. Belknap Street
Fort Worth, TX 76196

COUNSEL BEFORE COURT OF APPEALS FOR THE STATE:

Sharen Wilson
Joseph W. Spence
Helena F. Faulkner
Matt Smid
John Newbern
Tarrant County District Attorney’s Office
401 W. Belknap
Fort Worth, TX 76196-0201

PRESIDING JUDGE:

Hon. Ruben Gonzalez Jr.

432nd District Court
Tarrant County, Texas
401 W. Belknap
Fort Worth, TX 76196

4
TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT .................................10

STATEMENT OF THE CASE.....................................................................10
ISSUES PRESENTED ...................................................................................11
STATEMENT OF FACTS ............................................................................11
SUMMARY OF ARGUMENT .....................................................................15
ARGUMENT ..................................................................................................17
I. The court of appeals erred in holding that “the fact that
[Ms. Mason] did not know she was legally ineligible to
vote was irrelevant to her prosecution.” ..............................................17

A. The court of appeals’ opinion conflicts with the statute’s plain

language. ............................................................................................17

B. The opinion conflicts with Delay v. State. .........................................19

C. The opinion conflicts with other precedents from this Court. ...........24

D. The opinion’s reasoning is unpersuasive. ..........................................27

E. Ms. Mason’s conviction must be overturned. ....................................31

II. The court of appeals erred by adopting an interpretation
of the Illegal Voting Statute that is preempted by HAVA. .................35

A. HAVA preempts state law when there is a conflict. ..........................36

B. The court of appeals’ interpretation conflicts with HAVA. ..............37

III. Submitting a provisional ballot that is rejected does not
constitute “vot[ing]” under Section 64.012(a)(1). ................................43

A. The court of appeals failed to acknowledge ambiguity that must be

resolved in favor of Ms. Mason. ........................................................44

B. The court of appeals’ decision renders superfluous the separate

“attempt to vote” offense. ..................................................................47

C. The court of appeals’ definition of “vote” leads to illogical results. .48

PRAYER .........................................................................................................50

5
TABLE OF AUTHORITIES

Cases Page(s)

Alobaidi v. State,
433 S.W.2d 440 (Tex. Crim. App. 1968) ........................................................... 37

Arizona v. Inter Tribal Council of Arizona, Inc.,

570 U.S. 1 (2013) ................................................................................................ 36

Boykin v. State,
818 S.W.2d 782 (Tex. Crim. App. 1991) ........................................................... 48

Common Cause Georgia v. Kemp,

347 F. Supp. 3d 1270 (N.D. Ga. 2018) .........................................................39, 40

Delay v. State,
465 S.W.3d 232 (Tex. Crim. App. 2014) ....................................................passim

Dennis v. State,
647 S.W.2d 275 (Tex. Crim. App. 1983) ........................................................... 25

Fl. Democratic Party v. Hood,

342 F. Supp. 2d 1073 (N.D. Fla. 2004) ..................................................38, 39, 41

Heath v. State,
No. 14-14-00532-CR, 2016 WL 2743192 (Tex. App—Houston [14th Dist.]
May 10, 2016, pet. ref’d) .................................................................................... 30

Heckert v. State,
612 S.W.2d 549 (Tex. Crim. App. [Panel Op.] 1981) ........................................ 48

Ineos USA, LLC v. Elmgren,

505 S.W.3d 555 (Tex. 2016) .............................................................................. 45

Jackson v. State,
718 S.W.2d 724 (Tex. Crim. App. 1986) ........................................................... 25

Jenkins v. State,
468 S.W.3d 656 (Tex. App.—Houston [14th Dist.] 2015), pet. dism’d) ........... 30

6
King v. State,
895 S.W.2d 701 (Tex. Crim. App. 1995) ........................................................... 19

Liparota v. United States,

471 U.S. 419 (1985) ................................................................................25, 26, 28

Mason v. State,
598 S.W.3d 755 (Tex. App—Fort Worth 2020)..........................................passim

McQueen v. State,
781 S.W.2d 600 (Tex. Crim. App. 1989) ........................................................... 24

Medrano v. State,
421 S.W.3d 869 (Tex. App.—Dallas 2014, pet. ref’d). .................................... 30

Price v. State,
434 S.W.3d 601 (Tex. Crim. App. 2014) ........................................................... 46

Rehaif v. United States,

139 S. Ct. 2191 (2019) ..................................................................................26, 27

Sandusky Cnty. Democratic Party v. Blackwell,

387 F.3d 565 (6th Cir. 2004) ............................................................37, 39, 40, 41

Speth v. State,
6 S.W.3d 530 (Tex. Crim. App. 1999) .............................................................. 13

State v. Rhine,
297 S.W.3d 301 (Tex. Crim. App. 2009) ........................................................... 46

State v. Ross,
573 S.W.3d 817 (Tex. Crim. App. 2019) ........................................................... 25

Thompson v. State,
9 S.W. 486 (Tex. Ct. App. 1888) ..................................................................29, 30

United States v. Ferguson,

369 F.3d 847 (5th Cir. 2004) ............................................................................. 13

United States v. Games-Perez,

667 F.3d 1136 (Gorsuch, J., concurring) ............................................................ 23

7
Statutes

52 U.S.C. § 21082 ........................................................................................37, 38, 41

Tex. Elec. Code § 2.001 ........................................................................................... 44

Tex. Elec. Code § 2.002 ........................................................................................... 44

Tex. Elec. Code § 11.001 ...................................................................................20, 42

Tex. Elec. Code § 11.002 .......................................................................13, 20, 21, 42

Tex. Elec. Code § 63.011 ......................................................................................... 45

Tex. Elec. Code § 64.008 ...................................................................................15, 49

Tex. Elec. Code § 64.012 ..................................................................................passim

Tex. Elec. Code § 65.010 ......................................................................................... 44

Tex. Elec. Code § 65.059 ...................................................................................38, 44

Tex. Elec.Code § 253.003 ......................................................................20, 21, 22, 34

Tex. Penal Code § 15.01 .......................................................................................... 48

Tex. Penal Code § 31.03 .......................................................................................... 25

Tex. Penal Code § 31.07 .......................................................................................... 24

Tex. Penal Code § 38.04 .......................................................................................... 25

Tex. Penal Code § 42.01 .......................................................................................... 25

Other Authorities

George Wilfred Stumberg, Mistake of Law in Texas Criminal Cases, 15 Tex. L.

Rev. 287, 297, n.34 (1937) ...........................................................................29, 30

H.R. Rep. No. 107-329 ................................................................................27, 36, 38

Wayne R. LaFave, 1 SUBST. CRIM. L., § 5.6(a) (3d ed.) (2020) .............................. 28

Vote, Black’s Law Online Dictionary, https://thelawdictionary.org/vote/ .............. 45

8
Vote, Merriam-Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/vote ............................................................................... 45

9
STATEMENT REGARDING ORAL ARGUMENT

The Court did not grant oral argument. In the event the Court determines oral

argument is appropriate, Appellant requests the opportunity to present oral

argument.

STATEMENT OF THE CASE

In the November 2016 general election, Appellant Crystal Mason submitted a

provisional ballot pursuant to the federal Help America Vote Act (HAVA).

RR3.Ex.9. At the time, Ms. Mason was on federal “supervised release” after having

served her prison sentence for a federal tax offense. RR2.20:6-21:2. Because election

officials subsequently determined she was not registered to vote at the time of the

election, Ms. Mason’s provisional ballot was rejected and never counted. RR3.Ex.6.

On March 28, 2018, the trial judge convicted Ms. Mason of illegal voting

under Section 64.012(a)(1) of the Election Code, which makes it a second degree

felony to “vote[] … in an election in which the person knows the person is not

eligible to vote.” CR.33. She was sentenced to five years in prison for this offense.

Id.

On March 19, 2020, the Second Court of Appeals affirmed Ms. Mason’s

conviction. Mason v. State, 598 S.W.3d 755 (Tex. App—Fort Worth 2020)

(hereinafter “Op.”). On June 1, 2020, Ms. Mason sought reconsideration en banc.

After requesting a response from the State, the court denied the motion on September

10
27, 2020. Justices Gabriel and Womack, however, wrote that they would have

reviewed the panel’s decision.

On March 31, 2021, this Court granted Ms. Mason’s petition for discretionary

review.

ISSUES PRESENTED

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”? Op.770.

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? Op.775-76.

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”? Op.774-75.

STATEMENT OF FACTS

In November of 2016, at the urging of her mother, Crystal Mason went to vote

at her normal polling place. RR2.116:2-11. At the time, Ms. Mason was on federal

supervised release for a previous federal tax conviction. “According to the lead

supervisor in the probation office, no one in the office told Mason that she could not

vote while on supervised release because ‘[t]hat’s just not something [they] do.’”

11
Op.775 (citing RR2.20:9-17). The terms of Ms. Mason’s federal supervised release

included conditions detailing what she was and was not permitted to do, such as an

instruction that she “shall not possess a firearm.” RR3.Ex.1. None of the conditions

addressed voting or submitting a provisional ballot. See id.

“The evidence does not show that she voted for any fraudulent purpose.”

Op.779. Ms. Mason had no personal or pecuniary interest in the elections, and

nothing in general to be gained except exercising her civic duty at the urging of her

mother. RR2.116:8-11.

A mother of three and a caretaker for her brother’s four children, Ms. Mason

was working and going to night school to become a licensed aesthetician.

RR2.146:12-17. Ms. Mason testified that she would not have dared even go to the

polls if she had known that it meant jeopardizing her ability to be with her kids again:

[W]hy would I dare jeopardize losing a good job, saving my house, and
leaving my kids again and missing my son from graduating from high
school this year as well as going to college on a football scholarship? I
wouldn't dare do that, not to vote.

RR2.126:3-8; see also RR2.146:6-11 (“I would never do anything else to jeopardize

to lose my kids again. I was happy enough to come home and see my baby graduate,

my daughter. Now my son is graduating again. I wouldn’t have dared went to the

poll[s] to vote.”).

The worker checking the voter-registration roll at Ms. Mason’s regular polling

place could not find her name after looking under both her maiden and married

12
names. RR2:60:3-13. Because they could not find her name, “election workers

offered to let her complete a provisional ballot” pursuant to the federal Help America

Vote Act, “which [Ms. Mason] agreed to do.” Op.766.

An election worker gave Ms. Mason a provisional ballot affidavit and told her

that if she was in the right location, the provisional ballot would count, and if she

was not, it would not count. RR2:119:11-23.

The provisional ballot affidavit contains two parts. The left hand side of the

provisional ballot affidavit contains information that the election worker fills out

(such as the precinct number), followed by small print in English and Spanish, which

contain a series of affirmations, including the statement that “I am a registered voter

of this political subdivision and in the precinct in which I’m attempting to vote and

... have not been finally convicted of a felony, or if a felon, I have completed all of

my punishment including any period of incarceration, parole, supervision, period of

probation or I have been pardoned.” 1 RR3.Ex.8. Although these affirmations track

1
In Texas, a person convicted of a felony may become eligible to vote once that
person has “fully discharged the person’s sentence, including any term of
incarceration, parole, or supervision, or completed a period of probation ordered by
any court.” Tex. Elec. Code § 11.002. Ms. Mason was not on “parole,” and federal
supervised release is not equivalent to “probation” under state law. United States v.
Ferguson, 369 F.3d 847, 849 n.5 (5th Cir. 2004) (“Supervised release is different
than probation: ‘probation is imposed instead of imprisonment, while supervised
release is imposed after imprisonment.’”). Nor is it the same as “supervision” in
Texas, which is understood to be equivalent to probation. Speth v. State, 6 S.W.3d
530, 532 n.3 (Tex. Crim. App. 1999) (“We use the terms probation and community
supervision interchangeably in this opinion.”).

13
eligibility requirements to vote under Texas law, the form does not specify that these

affirmations determine whether a person is in fact eligible to vote. There is no

signature line on the left hand side of the form. Id. On the right hand side of the form,

under a large font header “Affidavit of Provisional Ballot,” there are numerous blank

fields for individuals to fill out their personal information (including name, address,

date of birth, driver license number, and social security number). Id. At the bottom

of the right hand side of the form, there is a space for the individual to sign. Id.

Id.

Ms. Mason took pains to ensure that the information she entered on the right

side of the provisional ballot affidavit was correct. RR2:125:12-20; 159:23-25. She

then signed the right hand side below the information she filled out. RR3.Ex.9. Ms.

14
Mason testified that she did not read the left hand side of the provisional ballot

affidavit. RR2.122:13-22; 125:12-20. The State’s primary witness testified that he

could not be sure if she read the left hand side of the provisional ballot affidavit.

State’s Brief on the Merits to the Court of Appeals at 25; see also RR2.86:24-87:2.

Another witness testified that from several feet away he saw her reviewing the

affidavit, but his testimony was not specific as to which side she was reviewing.

RR2.102:7-23.

After completing her provisional ballot affidavit, Ms. Mason filled out her

provisional ballot on an electronic screen. RR2.123:6-24:15. Ms. Mason’s

provisional ballot affidavit and the electronic receipt of her ballot were stored

separately from the votes that were cast. RR2.64:11-21; Tex. Elec. Code § 64.008(b).

After Ms. Mason submitted her provisional ballot, election officers

determined she was not eligible to vote, resulting in the rejection of her provisional

ballot. RR3.Ex.6; Tex. Elec. Code § 64.008(b). Ms. Mason’s ballot was never

counted. Id.

SUMMARY OF ARGUMENT

(1) The court of appeals erred in holding that “the fact that [Ms. Mason] did not

know she was legally ineligible to vote was irrelevant to her prosecution” under

Section 64.012(a)(1). That holding cannot be reconciled with the plain language of

the statute, which criminalizes “vot[ing] ... in an election in which the person knows

15
the person is not eligible to vote.” Tex. Elec. Code § 64.012(a)(1) (emphasis

added). As if that were not clear enough, this Court provided controlling guidance

seven years ago in Delay v. State, 465 S.W.3d 232 (Tex. Crim. App. 2014). That

case analyzed a similar statutory requirement that individuals know that their actions

violated the Election Code in order for their actions to be criminal. This Court held

that this required that the individual “actually realize[]” the conduct “in fact”

violated the Election Code. Id. at 252 (emphasis added). The court of appeals’

opinion cannot be squared with Delay.

(2) HAVA preempts the court of appeals’ interpretation of Section 64.012(a)(1),

which criminalizes the submission of provisional ballots by citizens who have a good

faith but mistaken belief that they are eligible to vote. The court of appeals’ opinion

is contrary to the text and purpose of the provisional ballot requirement of HAVA,

which exists to permit individuals who are uncertain about their eligibility to submit

a provisional ballot that will be subsequently subject to review and counted only if

that person is eligible to vote, rather than forgo their possible right to vote altogether.

Upholding the opinion could subject tens of thousands of Texans who submit

provisional ballots in good faith to potential prosecution.

(3) Submitting a provisional ballot that is ultimately rejected does not constitute

“vot[ing] in an election” under Section 64.012(a)(1). The court of appeals failed to

properly credit numerous contrary uses in the Election Code and dictionaries,

16
including the Election Code’s use of the verb “casts” instead of “votes” when

discussing provisional ballots. At a minimum, these contrary usages demonstrate

ambiguity with respect to the term “votes.” Pursuant to the Rule of Lenity, such

ambiguity must be resolved in favor of the criminal defendant. Further, the court of

appeals’ overly broad interpretation that “to vote” means any expression of choice

regardless of whether that choice is counted violates several principles of statutory

construction, including rendering the separate statutory crime of an “attempt to vote”

superfluous and leading to illogical results.

ARGUMENT

I. The court of appeals erred in holding that “the fact that [Ms. Mason]
did not know she was legally ineligible to vote was irrelevant to her
prosecution.”

The court of appeals misinterpreted Section 64.012(a)(1) when it held that

“[t]he fact that [Ms. Mason] did not know she was legally ineligible to vote was

irrelevant to her prosecution.” Op.770. This erroneous interpretation contradicts the

statute’s express mens rea requirement—that “the person knows the person is not

eligible to vote”—and this Court’s precedent, including Delay v. State, 465 S.W.3d

232 (Tex. Crim. App. 2014).

A. The court of appeals’ opinion conflicts with the statute’s plain

language.

Under Section 64.012(a)(1), “a person commits an offense if the person ...

votes or attempts to vote in an election in which the person knows the person is not

17
eligible to vote.” (emphasis added).

On appeal, Ms. Mason challenged the sufficiency of the evidence that she

knew she was ineligible to vote as a result of being on federal supervised release.

The court of appeals did not find that the evidence was legally sufficient to

demonstrate that Ms. Mason had knowledge of her ineligibility to vote, observing

that “she voted ... despite the fact that she was not certain [about her eligibility] and

may not have read the warnings on the affidavit form.” Op.779 (emphasis added).

Under Section 64.012(a)(1)’s plain text, the court’s determination that Ms. Mason

lacked subjective awareness of her ineligibility should have resulted in a reversal of

her conviction, as the evidence failed to demonstrate that she “kn[ew] [she was] not

eligible to vote.”

Nevertheless, the court affirmed Ms. Mason’s conviction, holding that “[t]he

fact that [Ms. Mason] did not know she was legally ineligible to vote was irrelevant

to her prosecution.” Op.770. The court held that Ms. Mason’s knowledge that she

was on federal supervised release was, by itself, sufficient to meet Section

64.012(a)(1)’s mens rea element. Op.768–70. It reasoned that the law presumes her

knowledge of the legal consequences of that underlying fact—per the State, that

being on federal supervised release rendered her ineligible to vote. Id.

The court’s holding impermissibly nullifies the express mens rea element of

Section 64.012(a)(1), which requires that the individuals “know[]” they are “not

18
eligible to vote” under the Election Code. Where a criminal statute specifies a

culpable mental state, the State bears the burden of proving that mental state beyond

a reasonable doubt. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995) (“As

with all elements of a criminal offense, the State must prove the mens rea element

beyond a reasonable doubt.”). In other words, the state had to demonstrate that Ms.

Mason not only knew that she was on federal supervised release (which is

undisputed), but that she also knew that being on federal supervised release rendered

her ineligible to vote—i.e., that she voted despite being subjectively aware she was

ineligible to do so.

The court of appeals erred by reading the mens rea requirement out of the

statute.2 “[T]he fact that Ms. Mason did not know she was legally ineligible to vote,”

Op.770, is in fact directly relevant to her prosecution, because it negates the required

mens rea element.

B. The opinion conflicts with Delay v. State.

In Delay, former Congressman Tom Delay was convicted of money

2
The court of appeals’ error with respect to the mens rea requirement under Section
64.012(a)(1) infected other areas of its opinion that would require reconsideration
on remand if this Court does not order an acquittal. For instance, Ms. Mason argued
that she received ineffective assistance of counsel because her trial counsel failed to
call numerous available witnesses who would have supported her claim that she did
not know she was ineligible to vote. Appellant Reply Br. to Court of Appeals at 27-
29. The court of appeals rejected this argument solely on the basis that it was
irrelevant to whether Ms. Mason knew she was ineligible to vote. Op.785.

19
laundering and conspiracy to launder money based on a series of corporate political

contributions that were alleged to violate Section 253.003(a) of the Election Code.

465 S.W.3d 232. Section 253.003(a) criminalizes “knowingly mak[ing] … a

political contribution in violation of [the Election Code].”

This Court reversed the conviction, holding that “knowingly” taking an action

“in violation of the Election Code” means “that the actor be aware, not just of the

particular circumstances that render his otherwise-innocuous conduct unlawful, but

also of the fact that undertaking the conduct under those circumstances in fact

constitutes a ‘violation of’ the Election Code.” Delay, 465 S.W.3d at 250

(emphasis added). Thus, Delay held that, in order to be guilty of an unlawful political

contribution, the actor must know not only that they are making a contribution that

will be steered to a specific candidate, but also that such a contribution violates the

Election Code. Delay, 465 S.W.3d at 250.

Section 64.012(a)(1) imposes the same knowledge requirement: not just of a

predicate action or conditions, but also that the actions taken were in violation of the

Election Code. Just as Section 253.003(a) makes it a crime for a person to knowingly

make a campaign contribution which that person knows is in violation of the

Election Code. Delay, 465 S.W.3d at 250-51, Section 64.012(a) makes it an offense

to “vote[]… in an election in which the person knows the person is not eligible to

vote,” i.e., in violation of the eligibility requirements established by Sections 11.001

20
and 11.002 of the Election Code. (emphasis added).

Thus, the State was required to prove:

 (1) knowledge of the “particular circumstances that render ... otherwise-

innocuous conduct unlawful”—here, that Ms. Mason knew she was on federal

supervised release; and

 (2) an “actual[] realiz[ation]” that those underlying facts “in fact

constitute[] a ‘violation of’ the Election Code”—here, that Ms. Mason

“actually realized” being on federal supervised release meant, per the State,

she was not eligible to vote, i.e., the “violation” of the Election Code at issue

here.

Id. at 250, 252.

Despite the precedential importance of Delay, the court of appeals only briefly

discussed the case in a footnote. Op.769 n.12. The court of appeals observed that

Delay found statutory ambiguity with respect to determining “whether the word

‘knowingly’ ... modified merely the making of a campaign contribution,” or whether

it also modified the phrase “‘in violation of’ the Election Code.” Delay, 465 S.W.3d

at 250; Op.769 n.12. The court then asserted that Delay was distinguishable because

there is no similar ambiguity in the statute at issue in this case. Op.769 n.12.

But the fact that Delay resolved grammatical ambiguity in Section 253.003(a)

does not affect its controlling application here. The holding in Delay turned on this

21
Court’s determination of what it substantively means to “knowingly ... violat[e] the

Election Code.” Delay, 465 S.W.3d at 250-51. Similarly, the issue here is what it

means for a person to “know[] the person is not eligible to vote” under the Election

Code. Op.768. In Delay, the Court found the evidence insufficient to sustain a

conviction for violation of Section 253.003(a) because, although the contributing

corporations may have known that their contributions would be steered to specific

candidates, “nothing in the record shows that anyone associated with the

contributing corporations actually realized that to make a political contribution

under these circumstances would in fact violate … the Texas Election Code.” Delay,

465 S.W.3d at 252 (emphasis added). In other words, even though the defendants in

Delay were sophisticated individuals and corporations, this Court did not simply

assume that they had knowledge of whether their conduct violated the Election

Code. Nor did this Court hold, as the court of appeals did in this case, that such actual

knowledge of a violation of the Election Code was “irrelevant.” In fact, this Court

reached the opposite conclusion: that a defendant cannot be found guilty of a

criminal violation of the Election Code without actual knowledge that the conduct

in question violated the Code.

It is this part of Delay that should have controlled the outcome here. In order

to establish that Ms. Mason “kn[ew] [she was] not eligible to vote” under Section

64.012(a)(1) the State was required to prove not only that Ms. Mason knew she was

22
on federal supervised release, but also that she “actually realized” that being on

federal supervised release “in fact” rendered her ineligible to vote, Delay, 465

S.W.3d at 252 (emphasis added).

That Delay involved a grammatical ambiguity and Section 64.012(a)(1) is

unambiguous only underscores the error in the decision below, which read the

knowledge requirement out of the unambiguous Section 64.012(a)(1). As the court

of appeals observed, “Section 64.012(a)(1) places the word ‘knows’ after the actus-

reas verb and immediately before the word describing the attendant circumstances–

–‘ineligible.’” Op.769 n.12. Thus, in the statute’s text, “knows” refers plainly and

unambiguously to the fact that “the person is not eligible to vote.” Despite the court

of appeals’ acknowledgment that “knows” unambiguously modifies “ineligible” in

Section 64.012(a)(1), the court of appeals found that it was legally “irrelevant”

whether Ms. Mason knew she was ineligible to vote, Op.770. But the clarity of this

statute cannot be a basis for reading the mens rea requirement out of it. Cf. United

States v. Games-Perez, 667 F.3d 1136, 1145 (Gorsuch, J., concurring) (“How can it

be that ... when Congress expressly imposes just such a mens rea requirement ... we

turn around and read it out of the statute?”).

In sum, the court of appeals affirmed Ms. Mason’s conviction based on

nothing more than her knowledge that she was on supervised release. According to

this Court’s holding in Delay, the Election Code requires actual knowledge of her

23
ineligibility to vote. Because Ms. Mason did not know she was ineligible to vote, the

Court should reverse Ms. Mason’s conviction.

C. The opinion conflicts with other precedents from this Court.

Voting is not criminal conduct. Rather, it is the circumstances of the

individual—eligible or ineligible—that may render the conduct unlawful under

Section 64.012(a)(1). Accordingly, a defendant like Ms. Mason who does not know

that she is ineligible to vote does not have the guilty state of mind the statute’s

language and purpose requires.

This Court has consistently affirmed that where an offense criminalizes

otherwise innocuous conduct based on particular circumstances, “the culpable

mental state of ‘knowingly’ must apply to those surrounding circumstances.”

McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989) (analyzing Tex.

Penal Code § 31.07 and holding that for a person to be guilty of the offense of

unauthorized use of a motor vehicle, that person must have a culpable mental state

of “knowing” they are operating a vehicle without the owner’s consent, not merely

that they are operating a vehicle).

For instance, this Court held that “[t]he word ‘knowingly,’ as used in the

context that the defendant knowingly receives property that has been stolen” requires

“actual subjective knowledge, rather than knowledge that would have indicated to a

reasonably prudent man that the property was stolen,” because such actual

24
knowledge is what makes unlawful the otherwise innocent conduct of receiving

property. Dennis v. State, 647 S.W.2d 275, 280 (Tex. Crim. App. 1983) (analyzing

Tex. Penal Code § 31.03(a), (b)(2)).

Similarly, with respect to a statute that prohibits “intentionally or knowingly

... display[ing] a firearm ... in a manner calculated to alarm,” this Court held that

“persuading a jury that the actor’s display was objectively alarming would not, by

itself, be enough for a conviction.” State v. Ross, 573 S.W.3d 817, 826 (Tex. Crim.

App. 2019) (analyzing Tex. Penal Code § 42.01(a)(8)). “The State would also

ultimately have to prove ... that the actor knew that his display was objectively likely

to alarm.” Id.; see also Jackson v. State, 718 S.W.2d 724, 726 (Tex. Crim. App.

1986) (for the evading arrest offense, Tex. Penal Code § 38.04, “it is essential that a

defendant know the peace officer is attempting to arrest him”).

U.S. Supreme Court precedent is in accord. In Liparota v. United States, the

Supreme Court held that a federal statute governing food stamp fraud required that

defendants to know that their acquisition or possession of food stamps was

unauthorized by the law. Liparota v. United States, 471 U.S. 419, 425 (1985). The

statute in Liparota made it a crime to “knowingly use[], transfer[], acquire[], alter[],

or possess[] coupons or authorization cards in any manner not authorized by [the

statute] or the regulations.” Id. at 420 (quoting 7 U.S.C. § 2024(b)(1)(1982)). The

Supreme Court interpreted the mens rea of the offense (“knowingly”) to apply to the

25
legal element of the offense (“not authorized by [the statute] or the regulations”) and

required that “the defendant knew his conduct to be unauthorized by statute or

regulations.” Id. at 425. The Court reasoned that to hold otherwise “would be to

criminalize a broad range of apparently innocent conduct.” Id. at 426. The Court

further noted that its decision was supported by the Rule of Lenity, which “ensures

that criminal statutes will provide fair warning concerning conduct rendered illegal

and strikes the appropriate balance between the legislature, the prosecutor, and the

court in defining criminal liability.” Id. at 427.

Similarly, in Rehaif v. United States, 139 S. Ct. 2191 (2019), a case involving

federal prosecution for unlawful possession of a firearm on the basis of immigration

status, the Court held that the statute required the government to prove that the

defendant knew he was in the United States illegally. The Court found that such a

knowledge requirement was essential where “the defendant’s status is the ‘crucial

element’ separating innocent from wrongful conduct.” Id. at 2197. Otherwise, the

statute would subject to criminal prosecution individuals who make innocent

mistakes about their status. Id. at 2197-98.

The Rehaif Court specifically rejected arguments similar to those adopted by

the court of appeals here, including that immigration status was a question of law

and that ignorance of the law was not a defense. The Court explained:

The defendant’s status as an alien “illegally or unlawfully in the United

States” refers to a legal matter, but this legal matter is what the

26
commentators refer to as a “collateral” question of law. A defendant
who does not know that he is an alien “illegally or unlawfully in the
United States” does not have the guilty state of mind that the statute’s
language and purposes require.

Id. at 2198.

This Court should interpret Section 64.012(a)(1) consistently with this long

line of precedent and reverse Ms. Mason’s conviction because the statute’s

knowledge requirement cannot be read out of the statute.

D. The opinion’s reasoning is unpersuasive.

The court of appeals attempted to justify negating Section 64.012(a)(1)’s

mens rea element by relying on the general proposition that ignorance of the law is

not a defense. Op.768-69 (citing Tex. Penal Code § 8.03(a)). But this case does not

hinge on whether an affirmative defense of mistake of law exists in this context.

The mens rea requirement and a defense of ignorance of law are two distinct

concepts. Where a statute, as here, requires that the individual have a particular

mental state, mens rea is a distinct element of the offense and it is the state’s burden

to establish it beyond a reasonable doubt. As this Court has made clear, a defendant

cannot simply be presumed to have the requisite mental state. In fact, mens rea is

the most important element when the underlying conduct is not itself criminal, like

voting.

In Delay, the State similarly argued that the defendants were presumed to

know the law and therefore were presumed to have known that their actions violated

27
the Election Code. See Delay, State’s Post-Submission Supplemental Letter Brief

at 3. However, this Court held that the State bore the burden of showing that even

the sophisticated actors in that case actually realized their conduct violated the

Election Code because the statutory language so required. Delay, 465 S.W.3d at

250-52.

This Court was correct in Delay and should reject any similar argument by

the State here. When a defendant’s lack of subjective awareness regarding the legal

consequences of their crime negates the required statutory mens rea element, such

“ignorance” demonstrates that the State has failed to meet its burden to sustain a

conviction.

As Professor LaFave explains in the treatise on Substantive Criminal Law:

Instead of speaking of ignorance or mistake of fact or law as a defense,

it would be just as easy to note simply that the defendant cannot be
convicted when it is shown that he does not have the mental state
required by law for commission of that particular offense. For
example, to take the classic case of the man who takes another’s
umbrella out of a restaurant because he mistakenly believes that the
umbrella is his, it is not really necessary to say that the man, if charged
with larceny, has a valid defense of mistake of fact; it would be more
direct and to the point to assert that the man is not guilty because he
does not have the mental state (intent to steal the property of another)
required for the crime of larceny.

Wayne R. LaFave, 1 SUBST. CRIM. L., § 5.6(a) (3d ed.) (2020) (emphasis added); see

also Liparota, 471 U.S. at 425 n.9.

Moreover, instead of relying on the controlling analysis in Delay, the court of

28
appeals relied primarily on a case from the 1800s, Thompson v. State, 9 S.W. 486

(Tex. Ct. App. 1888)—an unpersuasive decision that is out of step with this Court’s

more recent precedent. It was an error for the court of appeals to rely on this century-

old, single-paragraph decision, when it has clearly been abrogated by Delay.

In Thompson, the Court of Appeals of Texas held that a person’s knowledge of

their prior felony conviction for assault with intent to murder was sufficient to

demonstrate knowledge of their ineligibility to vote, because individuals are charged

with knowledge of the law. Id. at 486-87. This holding cannot be reconciled with

Delay, which rejected the State’s attempt to charge the sophisticated actors in that

case with knowledge of the law. It also fails to account for the fact that knowledge

of ineligibility is the specified mens rea for illegal voting under Section 64.012(a)(1),

and therefore must be proven by the State and cannot be presumed.

Indeed, this flaw in Thompson’s reasoning has been noted since at least 1937,

when a Texas Law Review article labeled the opinion “unsound.” George Wilfred

Stumberg, Mistake of Law in Texas Criminal Cases, 15 Tex. L. Rev. 287, 297, n.34

(1937). Professor Stumberg—who was a nationally recognized authority on criminal

law—explained:

The rule that ignorance of the law does not excuse, as contained by the
Penal Code, could hardly have been intended by the framers of the Code
to be applicable when the specific crime requires knowledge for guilt.
... When the legislature requires knowledge for guilt, it is only fair to
assume that it meant what it said and did not mean presumed knowledge
when there was no knowledge in fact.

29
Id.

The court of appeals’ other cited cases fail for similar reasons. Medrano v.

State relied entirely on the faulty reasoning of Thompson and involved facts

materially different from the case at bar—namely, the court found in the alternative

that the defendant knew she was ineligible to vote. 421 S.W.3d 869, 885 (Tex.

App.—Dallas 2014, pet. ref’d). In Medrano, a candidate for office coached his niece

to lie on her voter registration card and lie again at the voting place about her

residence so that she could cast a ballot for him. Id. at 874. The Court therefore found

that the niece did what the law makes criminal: knowingly misrepresented a

characteristic about herself (her place of residence) to make herself eligible to cast a

ballot. No such facts exist in this case. Ms. Mason was not involved in a scheme to

lie to officials, had no personal interest in the election, and took care to accurately

fill out the provisional ballot affidavit. See supra Statement of Facts.12-15.

The court of appeals’ other cited cases fare no better. Neither Heath v. State,

No. 14-14-00532-CR, 2016 WL 2743192 (Tex. App—Houston [14th Dist.] May 10,

2016, pet. ref’d) (mem. op., not designated for publication), nor Jenkins v. State, 468

S.W.3d 656, 677 (Tex. App.—Houston [14th Dist.] 2015), pet. dism’d,

improvidently granted) discusses Delay at all despite its controlling analysis, and

neither case analyzes Section 64.012(a)(1) as a circumstances of the offense type

crime. In fact, in Jenkins the court didn’t even analyze whether the State must show

30
the defendant was subjectively aware he was ineligible to vote. Instead, the court of

appeals found error in the trial court’s refusing to instruct the jury on a defendant’s

requested statutory mistake of law defense. Ms. Mason has not raised an affirmative

defense regarding mistake of law; her verdict must be reversed because the State

failed to demonstrate the required mens rea element.

E. Ms. Mason’s conviction must be overturned.

Under the correct interpretation of Section 64.012(a)(1)’s knowledge

requirement, the State bore the burden of demonstrating that Ms. Mason actually

knew she was ineligible to vote, which required proving beyond a reasonable doubt:

(1) that Ms. Mason knew she was on federal supervised release (knowledge

of “the particular circumstances that render [her] otherwise-innocuous conduct

unlawful,” Delay, 465 S.W.3d at 250); and

(2) that Ms. Mason “actually realized,” that being on federal supervised

release meant, per the State, that she was not eligible to vote (knowledge that

“undertaking the conduct under those circumstances in fact constitutes a ‘violation

of’ the Election Code,’” id. at 250, 252).

While it is undisputed that Ms. Mason knew she was on federal supervised

release, the court of appeals correctly noted that Ms. Mason did not actually realize

31
that being on federal supervised release rendered her ineligible to vote.3 As the court

found, “she voted . . . despite the fact that she was not certain and may not have

read the warnings on the affidavit form.” Op.779-80; see also Op.770 (holding

“[t]he fact that [Ms. Mason] did not know she was legally ineligible to vote” to be

“irrelevant”); Op.779 (“The evidence does not show that she voted for any

fraudulent purpose.”); id. (“Mason may not have known with certainty that being on

supervised release as part of her federal conviction made her ineligible to vote under

Texas law….”).

The court of appeals’ determination that the evidence failed to show that Ms.

Mason was subjectively aware that she was ineligible to vote was correct. Ms.

Mason unequivocally testified that she did not know she was considered ineligible

to vote, and would not have jeopardized her newly rebuilt life to cast a ballot if she

had known. RR2.126:4-8. There was no evidence that Ms. Mason had any personal

interest in the election. Nor was there any evidence that she would have or should

have become aware of the fact she was considered ineligible to vote. Indeed, the

3
There is significant legal ambiguity about whether Ms. Mason’s “federal
supervised release” rendered her ineligible to vote. Federal supervised release is not
the same as parole or probation; nor is it the equivalent of “supervision” as that term
is used in Texas law. See Appellant Reply Br. to Court of Appeals at 8-10. While
the court of appeals found against Ms. Mason on this issue, and Ms. Mason has not
requested review on that aspect of the opinion, the ambiguity between the term
federal supervised release and the terms under Texas law listed on the left hand side
of the provisional ballot affidavit further supports Ms. Mason’s lack of knowledge
that she was ineligible to vote.

32
supervisor of her release program testified that Ms. Mason was not told that being

on federal supervised release rendered her ineligible to vote. RR2.20:9-17.

The State’s only evidence regarding Ms. Mason’s knowledge of her

ineligibility was speculation that she had read the long and confusing affirmations

set forth in small-print on the left-hand side of the provisional ballot affidavit.

Notably, those affirmation were not accompanied by a signature line and did not

appear under the header “Affidavit of Provisional Voter” located on the right side of

the ballot.4 Even this speculation, however, would not be sufficient to demonstrate

that Ms. Mason “actually realized” that being on federal supervised release rendered

her ineligible to vote. In Delay, the corporate executive defendants had ample

financial resources, legal advisors, and fund-raising literature that should have

informed them of a “substantial and unjustifiable risk that their corporate

contributions would violate the Texas Election Code”—but this Court held that these

facts were not sufficient to demonstrate actual knowledge that their actions violated

the code. Delay, 465 S.W.3d at 252. This Court further noted that “neither

4
Further, prosecuting someone for illegal voting solely on the basis that they read
and signed the provisional ballot affidavit as contemplated by HAVA, and with no
other evidence of knowledge of ineligibility, as the State has attempted to do here,
would potentially subject to prosecution every individual who signed the provisional
ballot affidavit and subsequently had their ballot rejected—each of those individuals
affirmed that they were registered to vote in the relevant county despite being told
they were not on the registration list. Therefore, it would conflict with HAVA and
be preempted for similar reasons as those discussed further below.

33
recklessness nor negligence” are sufficient mens rea for an offense under Section

253.003(a) of the Election Code. Id. Here, even if the State had proven—which it

did not—that Ms. Mason took a negligent risk in casting her ballot or did so “despite

the fact that she was not certain” of her eligibility, Op.779, it would not show that

she was “actually cognizant of any illegality,” Delay, 465 S.W.3d at 252.5

Nevertheless, the court of appeals held that Ms. Mason’s knowledge of being

on supervised release was, by itself, “sufficient to prove that she committed the

offense of illegal voting.” Op.880. In other words, the court of appeals determined

that Ms. Mason violated Section 64.012(a)(1) “despite that fact” that she did not

have the required mens rea under the plain language of the law. Id. at 779. As the

knowledge requirement cannot be simply disregarded where the evidence fails to

support such a finding, this Court must reverse and vacate her conviction.

5
Regardless, the evidence did not show that Ms. Mason read the left hand side of
the provisional ballot affidavit. Ms. Mason testified that she did not read that portion
of the affidavit, RR2.122:13-22, and the State conceded that their primary witness
“could not say with certainty that Appellant actually read [the provisional ballot
affidavit].” State’s Brief on the Merits to the Court of Appeals at 25; see also
RR2.86:24-87:2. The State’s only other witness on this issue testified about what he
saw from several feet away while doing other work and his testimony is silent as to
whether Ms. Mason read the left-hand side of the affidavit, which is the critical detail
for the State’s theory. RR2.102:7-23; see Appellant Reply Br. to Court of Appeals
at 13.

34
II. The court of appeals erred by adopting an interpretation of the
Illegal Voting Statute that is preempted by HAVA.

The court of appeals’ interpretation of Section 64.012(a)(1) also must be

reversed because the court adopted an interpretation of state law that directly

conflicts with federal law and is thus pre-empted.

HAVA permits individuals who believe in good faith that they are eligible to

vote to cast a provisional ballot, even when their belief turns out to be incorrect.

As even the State has conceded here, HAVA “ensures that anyone who believes they

are eligible to vote is given a provisional ballot if their name does not appear on the

list of qualified voters.” State’s Response to Motion for En Banc Reconsideration at

17 (emphasis in the original). The court of appeals’ interpretation of Section

64.012(a)(1) criminalizes such conduct—a result for which even the State did not

advocate.

The court of appeals interpreted Section 64.012(a)(1) in a manner that directly

conflicts with federal law and could subject potentially tens of thousands of Texans

in every federal election to felony prosecution. This Court should correct the court

of appeals’ misinterpretation and clarify that Section 64.012(a)(1) does not

criminalize submitting a provisional ballot based on a good faith but mistaken belief

of voter eligibility. Because Ms. Mason submitted her provisional ballot in good

faith, and in following the instructions of the election worker, she must be acquitted.

35
A. HAVA preempts state law when there is a conflict.

HAVA was enacted pursuant to Congress’ Election Clause authority to make

laws governing the time, place, and manner of holding Federal elections. U.S. Const.

Art. 1, Sect. 4; H.R. Rep. No. 107-329 at 57. As such, HAVA preempts state or local

laws that conflict with its text and purpose.

“The [Elections] Clause empowers Congress to pre-empt state regulations

governing the ‘Times, Places and Manner’ of holding congressional elections.”

Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1, 8 (2013). Congress’

power to regulate the “‘Times, Places and Manner of congressional elections’ is

paramount” and where it is exercised, “‘the regulations effected supersede those of

the State which are inconsistent therewith.’” Id. at 9 (quoting Ex parte Siebold, 100

U.S. 371, 392 (1880)). If state law conflicts with federal election law—here, by

criminalizing a right guaranteed by HAVA—the state law must give way and

“ceases to be operative.” Id. at 9 (citation omitted).6

As a well-settled matter of statutory interpretation, the court of appeals should

6
In contrast to other areas of federal law, there is no presumption against preemption
for laws enacted under the Elections Clause because “the power the Elections Clause
confers is none other than the power to pre-empt.” Arizona, 570 U.S. at 14.
Contrasting federal elections from other traditional prerogatives of the states, the
U.S. Supreme Court observed that “the States’ role in regulating congressional
elections—while weighty and worthy of respect—has always existed subject to the
express qualification that it ‘terminates according to federal law.’” Id. (quoting
Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 347 (2001)).

36
not have construed Section 64.012(a)(1) in a manner that is preempted by HAVA.

Alobaidi v. State, 433 S.W.2d 440, 442 (Tex. Crim. App. 1968) (“A statute

susceptible of more than one construction will be so interpreted . . . so that it will be

constitutional.”).

B. The court of appeals’ interpretation conflicts with HAVA.

“HAVA was passed in order to alleviate ‘a significant problem voters

experience[,]’” which “‘is to arrive at the polling place believing that they are

eligible to vote, and then to be turned away because the election workers cannot find

their names on the list of qualified voters.’” Sandusky Cnty. Democratic Party v.

Blackwell, 387 F.3d 565, 569 (6th Cir. 2004) (quoting H.R. Rep. 107–329 at 38

(2001)).

The plain language of HAVA establishes a clear right to submit provisional

ballots so long as an individual attests to their eligibility. HAVA provides that if an

individual “declares” (1) “that such individual is a registered voter in the jurisdiction

in which the individual desires to vote” and (2) “that the individual is eligible to vote

in an election for Federal office,” then the individual must be “permitted to cast a

provisional ballot.” 52 U.S.C. § 21082(a). The right to cast a provisional ballot under

HAVA is “couched in mandatory terms” and “unambiguous.” Sandusky, 387 F.3d

at 572–73.

Congress established this broadly accessible system of provisional voting

37
under HAVA because it believed that “provisional voting is necessary to the

administration of a fair, democratic, and effective election system, and represents

the ultimate safeguard to ensuring a person’s right to vote.” H.R. Rep. No. 107-329

at 37. HAVA thus mandated that each covered state implement the provisional ballot

requirements of the Act. 52 U.S.C. § 21082(a)(5). Under HAVA’s provisional

voting section,

The person who claims eligibility to vote, but whose eligibility to vote
at that time and place cannot be verified, is entitled under HAVA to
cast a provisional ballot. On further review—when, one hopes, perfect
or at least more perfect knowledge will be available—the vote will be
counted or not, depending on whether the person was indeed entitled to
vote at that time and place.

Fl. Democratic Party v. Hood, 342 F. Supp. 2d 1073, 1079 (N.D. Fla. 2004).

Critically, HAVA expressly contemplates that some individuals who submit

a ballot in good faith will turn out to be incorrect regarding their eligibility to vote.

The statute requires that states provide a mechanism for informing those individuals

that their ballot was not counted and the reasons for that determination, without any

suggestion that such individuals might be subject to criminal prosecution. 52 U.S.C.

§ 21082(a)(5)(B) (requiring state and local election officials to set up a hotline

whereby individuals can find out whether their vote was counted, and if the ballot

was not counted the reasons why); see also Tex. Elec. Code § 65.059 (implementing

this requirement); Hood, 342 F. Supp. 2d at 1081. In other words, HAVA establishes

a federal right to cast a provisional ballot—in order to deal with the problem of

38
elections officials turning away would-be voters who believe they are eligible—and

provides that the remedy for situations where an ineligible voter mistakenly casts a

provisional ballot in good faith is simply not to count the ballot, based on state

elections officials’ determination of eligibility made with the benefit of additional

time.

Here, Ms. Mason believed she was eligible to vote. See supra Statement of

Facts.12-15. HAVA was designed precisely to permit people in situations like hers,

who in good faith follow the instructions of the poll worker, to cast a ballot.

Sandusky, 387 F.3d at 569; Hood, 342 F.Supp.2d at 1076-77 (describing the problem

of determining whether individuals with felony convictions had their voting rights

restored as “among the perceived irregularities” motivating passage of HAVA).

Under these circumstances, the only repercussions Ms. Mason should have

faced were (1) being found ineligible to vote under state law, and (2) having her

ballot not be counted as a vote. Sandusky, 387 F.3d at 576. Instead, the trial court

convicted Ms. Mason, and the court of appeals upheld that conviction, under an

interpretation of Section 64.012(a)(1) that conflicts with federal law by criminalizing

actions that HAVA expressly requires states to make available to their prospective

voters.

In so ruling, the court of appeals relied on a misreading of Common Cause

Georgia v. Kemp to conclude that HAVA’s provisional balloting requirement exists

39
to serve only those individuals who “appear at the proper polling place and are

otherwise eligible to vote,” while permitting the criminalization of those who turn

out to be ineligible. Op.775-76 see Common Cause Georgia v. Kemp, 347 F. Supp.

3d 1270, 1292 (N.D. Ga. 2018). But, as explained above, HAVA establishes a right

to submit a provisional ballot, and provides that the remedy for a provisional ballot

cast by a person who is mistaken about their eligibility to vote in an election, which

can include simply being at the wrong polling place, is not to count the ballot.

Indeed, even the case relied on by the court of appeals acknowledged that HAVA

grants “[t]he person who claims eligibility to vote, but whose eligibility to vote . . .

cannot be verified,” the right “to cast a provisional ballot,” which will only be

“counted if they are duly registered.” 347 F.Supp.3d at 1293.

The court of appeals ignored the main issue animating the passage of HAVA:

determining whether someone is “an otherwise qualified and eligible voter” is not

always straightforward, even for elections officials—to say nothing of citizens such

as Ms. Mason. Op.776. HAVA exists because in real time at the polling place there

is often ambiguity about whether someone is actually eligible to vote. Sandusky, 387

F.3d at 569.

In light of such ambiguity, HAVA’s right to cast a provisional ballot assures

that nobody who believes they are eligible to vote is “turned away” from the polls.

Id. at 570, 576. Congress’ intent was to permit individuals in Ms. Mason’s situation

40
to cast a provisional ballot, and then have the state determine, with the benefit of

time, whether to count that ballot after the individual leaves the polling place: “Any

error by the state authorities may be sorted out later, when the provisional ballot is

examined.... [I]f the voter is not eligible, the vote will then not be counted.” Id.;

Hood, 342 F. Supp. 2d at 1081. HAVA’s purpose is to prioritize letting voters cast

provisional ballots, even if many such ballots are not ultimately counted, over

determining eligibility conclusively at the time a ballot is submitted.

This is why the text of HAVA provides for the rejection of provisional ballots

as the remedy where a voter is ineligible. 52 U.S.C. § 21082(a)(4) (noting that ballots

are only counted upon determination of eligibility). Far from placing the burden on

prospective voters to determine their own eligibility, HAVA obligates the state to

provide written notice and set up a free access system to explain why a provisional

ballot was not counted. § 21082(a)(5).

The court of appeals’ interpretation, however, inverts this system and places

tremendous risk on the prospective voter. Under the court of appeals’ reasoning,

where ambiguity exists about an individual’s eligibility to vote, the individual is

forced to gamble with their liberty—they have a theoretical right to cast a provisional

ballot, but if they are wrong about their eligibility, they could be subject to

prosecution. Putting the onus on would-be voters to be certain about their eligibility

at the risk of criminal prosecution, as the court of appeals does, would eviscerate the

41
right to cast a provisional ballot under HAVA.

The impact of the court of appeals’ view cannot be overstated, as it would

expose tens of thousands of Texans to criminal prosecution in each election. For

example, during the 2016 General Election, 67,273 provisional ballots were

submitted in Texas and the vast majority—54,850 provisional ballots—were

rejected. The majority of those rejected ballots—44,046 in all—were rejected

because the individual was not registered in the relevant precinct or subdivision.

Appellant’s Post-Submission Letter to Court of Appeals at 1-2 (hereinafter

“Letter”).7 The reasons for these specific rejections vary, but include individuals who

moved but did not re-register, individuals who traveled to the wrong polling location,

or individuals who had not timely registered.

Critically, registration is a voter “qualification” in Texas. See Tex. Elec. Code

§ 11.002(a)(6). Anyone casting a provisional ballot who turns out not to be properly

registered is thus—like Ms. Mason—ineligible to vote under Texas law. See Tex.

Elec. Code § 11.001(a)(1)-(2) (providing that an eligible voter must be qualified

under Section 11.002, and must be a resident). Moreover, the provisional ballot

affidavit contains an attestation that the provisional voter is “a registered voter of

7
In Tarrant County, where Ms. Mason resides, during that election, 4,463
provisional ballots were submitted and 3,990 of those provisional ballots were
rejected. 3,942 of those provisional ballots were rejected for not being registered in
the relevant precinct or subdivision. Letter at 2.

42
this political subdivision and in the precinct in which I’m attempting to vote.” Under

the court of appeals’ interpretation of the illegal voting statute, however, any

provisional voter who is found to be ineligible based on lack of proper registration—

and there are tens of thousands of them in each general election—could face a

second-degree felony for voting while ineligible under Section 64.012(a)(1). For

example, under the court of appeals’ decision, the State could prosecute an

individual who knew that they had moved to a new county but failed to update their

registration information, and then filled out a provisional ballot affidavit, even if that

individual had no idea that failing to re-register when they moved to a new county

rendered them ineligible to vote.

Because the opinion criminalizes the casting of a provisional ballot by those

who believe in good faith that they are eligible to vote but turn out to be mistaken

about their eligibility, it conflicts with both the text and purpose of HAVA and

should be overturned.

III. Submitting a provisional ballot that is rejected does not constitute

“vot[ing]” under Section 64.012(a)(1).

The court of appeals erred in holding that Ms. Mason’s submission of a

provisional ballot that was rejected met the requirement under Section 64.012(a)(1)

for “vot[ing] in an Election.” This holding (1) ignores the requirement under the

Rule of Lenity that courts resolve statutory ambiguities in favor of Ms. Mason; (2)

renders superfluous the separate statutory offense of “attempt to vote”; and (3)

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leads to illogical results that would criminalize a host of innocent conduct.

A. The court of appeals failed to acknowledge ambiguity that must

be resolved in favor of Ms. Mason.

The Rule of Lenity requires that courts resolve statutory ambiguity in a way

that is most favorable for a defendant. In holding that submitting a provisional ballot

that is rejected constitutes “vot[ing]” in an election, Op.778-79, however, the court

of appeals failed to resolve such statutory ambiguity in favor of Ms. Mason.

Under the Texas Election Code, simply filling out a ballot—whether

provisional or otherwise—does not, without more, constitute a vote. To the contrary,

various sections of the Election Code repeatedly use the term “vote” to refer only to

counted ballots, which makes clear that a ballot must be tallied to constitute a “vote.”

For example, Section 2.001 provides that “to be elected to a public office, a candidate

must receive more votes than any other candidate for the office.” (emphasis added);

§ 2.002(a) (discussing procedures where candidates “tie for the number of votes

required to be elected”). No doubt, uncounted ballots are by definition not tallied as

“votes” that determine who wins an election.

Texas law also expressly categorizes provisional ballots that are not accepted

as “Ballots Not Counted,” as opposed to “votes.” Tex. Elec. Code § 65.010. Further,

the Election Code uses the terminology of “casting” a provisional ballot that is not

counted rather than “voting” such a ballot. § 65.059 (with respect to “a person who

casts a provisional ballot,” requiring a system to “allow the person to determine

44
whether the person’s ballot was counted, and, if the person’s ballot was not

accepted ... the reason why) (emphasis added); § 63.011 (establishing requirements

for when a person “may cast a provisional ballot”) (emphasis added).

The court of appeals recognized that “the Election Code’s provisional-ballot

provisions speak in terms of ‘casting’ such a ballot,” Op.775 n.20, but it erroneously

assumed that the statute uses the verb “casts” interchangeably with the verb “votes.”

This assumption contradicts the principle that “when the legislature uses certain

language in one part of the statute and different language in another, we presume

different meanings were intended.” Ineos USA, LLC v. Elmgren, 505 S.W.3d 555,

564 (Tex. 2016) (citation omitted).

Further, although the court of appeals considered selected dictionary

definitions of the term “vote,” it failed to consider contrary definitions, even ones

from the same source. Op.774. For example, Webster’s Dictionary defines the verb

“to vote” as “to express one’s views in response to a poll especially: to exercise a

political franchise.” (emphasis added).8 Similarly, Black’s Law Online

Dictionary’s first definition of the noun vote is “suffrage.”9 Ms. Mason certainly did

not exercise her political franchise or suffrage when she submitted a provisional

ballot that was rejected; indeed, the State claims that until she completes her federal

8
Vote, Merriam-Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/vote.
9
Vote, Black’s Law Online Dictionary, https://thelawdictionary.org/vote/.

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supervised release, she has no franchise.

At best, the court of appeals identified potential ambiguity with respect to

whether casting a provisional ballot that is not counted constitutes “vot[ing] in an

election” under Section 64.012(a)(1). Ambiguity exists where the “statutory

language may be understood by reasonably well-informed persons in two or more

different senses.” Price v. State, 434 S.W.3d 601, 605 (Tex. Crim. App. 2014).

In citing contrary examples of what could constitute “voting,” the court of

appeals raised at most the possibility that its interpretation could be correct;

however, as established above, the better interpretation and certainly one that a

reasonable person could adopt based on the Texas Election Code and dictionary

definitions is that submitting a provisional ballot that is rejected and never counted

does not constitute “voting in an election” under Section 64.012(a)(1).

Because Section 64.012(a)(1) is a criminal statute arising outside the Penal

Code, any such ambiguity must be resolved in Ms. Mason’s favor. Delay, 465

S.W.3d at 251 (analyzing terms found in Texas Election Code and holding that “in

construing penal provisions that appear outside the Penal Code, we have recognized

that the Rule of Lenity applies, requiring that ambiguity concerning the ambit of

criminal statutes should be resolved in favor of lenity”); State v. Rhine, 297 S.W.3d

301, 309 (Tex. Crim. App. 2009) (“[C]riminal statutes outside the penal code must

be construed strictly, with any doubt resolved in favor of the accused.”) (citation

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omitted).

Resolving any ambiguity in favor of Ms. Mason means that submitting a

provisional ballot that is not counted does not constitute “vot[ing] in an election”

under Section 64.012(a)(1). The court of appeals’ failure to resolve this ambiguity

in favor of Ms. Mason was error, and for this reason, Ms. Mason’s conviction cannot

be sustained.

B. The court of appeals’ decision renders superfluous the separate

“attempt to vote” offense.

The court of appeals held that submitting a provisional ballot that is not

counted constitutes “vot[ing] in an election,” based on its interpretation that “to vote

… can be broadly defined as expressing one’s choice, regardless of whether the vote

is actually counted.” Op.775. The court’s overly broad interpretation, however,

would render superfluous the separate statutory offense of an attempt to vote,

contrary to principles of statutory construction.

Section 64.012(a)(1) provides that “a person commits an offense if the person:

votes or attempts to vote.” In short, the statute outlines two separate criminal

offenses: when a person (1) “votes in an election,” or (2) “attempts to vote in an

election.” (emphasis added). The statute’s punishment provision draws the same

distinction: illegal voting is a second degree felony—“unless the person is convicted

of an attempt,” which is “a state jail felony.” Tex. Elec. Code § 64.012(b). While the

State charged Ms. Mason with voting, it did not charge her with attempting to vote.

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A fundamental principle of statutory interpretation requires that each term in

a statute be given meaning. Heckert v. State, 612 S.W.2d 549, 552 (Tex. Crim. App.

[Panel Op.] 1981) (rejecting interpretation that would render distinct statutory

provisions a nullity).

Under the Penal Code, a criminal attempt is defined as: “an act amounting to

more than mere preparation that tends but fails to effect the commission of the

offense intended.” Tex. Penal Code § 15.01. In the context of the Illegal Voting

statute, the clear distinction between the attempt offense and the completed offense

is that an individual who votes in an election actually succeeds in having their ballot

tallied.

The court of appeals’ interpretation, however, would eliminate this distinction

because it held that any “express[ion] of one’s choice” constitutes a vote, regardless

of whether the ballot is counted. Op.775. This definition of “to vote” would subsume

all attempts to vote that are ultimately unsuccessful and therefore render superfluous

that separate offense. The Court should correct the court of appeals’ error and hold

that submitting a provisional ballot that is not counted does not constitute “voting in

an election.”

C. The court of appeals’ definition of “vote” leads to illogical results.

The Court should correct the court of appeals’ interpretation for the additional

reason that it has illogical consequences. Boykin v. State, 818 S.W.2d 782, 785 (Tex.

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Crim. App. 1991) (courts should reject a plain language interpretation where it

“lead[s] to absurd consequences”). The court of appeals’ definition of voting as

“expressing one’s choice, regardless of whether the vote actually is counted,”

Op.775, would criminalize a host of acts that would clearly not be considered

“voting.” For example, if an individual walked into a polling place with a ballot

filled out, but—because the election judge told her the ballot would not be

accepted—she failed to submit it, no one would believe that she had “voted in an

election.”

The same would be true if that individual handed her ballot to the election

judge, who deposited it in a box marked “rejected ballots.” This is in fact the

equivalent of what happened with Ms. Mason: her provisional ballot affidavit along

with a receipt of her electronic ballot were placed in a separate envelope and

ultimately rejected. RR2.64:11-21; Tex. Elec. Code §§ 64.008(b), 65.056 (b).

In short, the court of appeals’ interpretation would lead to the absurd result

that a “vote” need only be marked on a ballot, even if that ballot is never cast or

tallied. Such an unsupported interpretation would undermine the very significance

of the act of voting. Because the court of appeals’ interpretation of Section

64.012(a)(1) illogically criminalizes otherwise lawful conduct and leads to absurd

results, it is erroneous.

This Court should instead adopt an interpretation that an individual “votes in

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an election” for the purposes of Section 64.012(a)(1) only when the individual

submits a ballot that is tallied or counted in the election. Such an interpretation aligns

with a plain language understanding of what it means to “vote in an election” and

would not criminalize a host of non-harmful conduct. Even if the Court finds

ambiguity with respect to this question, under the Rule of Lenity, such ambiguity

must be resolved in favor of Ms. Mason. Therefore, under the correct interpretation

of the statute and pursuant to the Rule of Lenity, Ms. Mason’s submission of a

provisional ballot that was not counted does not constitute “voting in an election.”

For this reason, Ms. Mason’s conviction should be overturned.

PRAYER

Ms. Mason prays that the Court reverse the decision of the court of appeals,

reverse her conviction, and order a judgment of acquittal.

//

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Respectfully submitted,

Emma Hilbert /s/ Thomas Buser-Clancy

Texas Bar No. 24107808 Thomas Buser-Clancy
Hani Mirza Texas Bar No. 24078344
Texas Bar No. 24083512 Andre Segura
Texas Civil Rights Project Texas Bar No. 24107112
1405 Montopolis Drive Savannah Kumar
Austin, TX 78741-3438 Texas Bar No. 24120098
Telephone: (512) 474-5073 ext. 105 ACLU Foundation of Texas, Inc.
Fax: (512) 474-0726 5225 Katy Freeway, Suite 350
[email protected] Houston, TX 77007
[email protected] Telephone: (713) 942-8146
Fax: (915) 642-6752
Sophia Lin Lakin** [email protected]
New York Bar No. 5182076 [email protected]
Dale E. Ho** [email protected]
New York Bar No. 4445326
American Civil Liberties Union Alison Grinter
125 Broad Street, 18th Floor Texas Bar No. 24043476
New York, NY 10004 6738 Old Settlers Way
Telephone: (212) 519-7836 Dallas, TX 75236
Fax: (212) 549-2654 Telephone: (214) 704-6400
[email protected] [email protected]
[email protected]
Kim T. Cole
Texas Bar No. 24071024
2770 Main Street, Suite 186
Frisco, Texas 75033
Telephone: (214) 702-2551
**pro hac vice application forthcoming Fax: (972) 947-3834
[email protected]

Counsel for Appellant, Crystal Mason

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CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3), the undersigned counsel certifies that the total number

of words in Appellant’s Brief on the Merits, exclusive of the matters designated

for omission, is 9,711 words as counted by Microsoft Word Software.

/s/ Thomas Buser-Clancy

Thomas Buser-Clancy

CERTIFICATE OF SERVICE

In accordance with the Texas Rules of Appellate Procedure, I hereby certify

that a true and correct copy of this brief has been served on counsel of record and

the State Prosecuting Attorney via e-service on May 17, 2021.

/s/ Thomas Buser-Clancy

Thomas Buser-Clancy

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