When the police arrested Hervis Rogers for voter fraud, he thought it was a mistake.
He had completed a prison sentence for burglary in 2004 and has since settled into a stable new life with a family and a job. He’s kept his nose clean for 16 years. When he waited in line for 6 hours, one of the final people to vote in the 2020 presidential primary in Texas, he says he considered giving up, but told reporters, “I wanted to get my vote in, voice my opinion. I wasn’t going to let anything stop me.”
For more than a year after that March night, he was able to think of that day as example of good citizenry, but Texas Attorney General Ken Paxton had another idea. Paxton had him arrested last week on the eve of the special session in which the Texas GOP planned to roll back voter rights; Rogers’ long-delayed arrest was used as proof that Paxton is serious about rooting out voting fraud.
Paxton didn’t just arrest the 62-year-old; he charged the man with two felony counts (one for voting in 2018 and the other for 2020, neither flagged at the time of voting) and set a $100,000 bail. Naturally, Rogers couldn’t come up with six figures on the spot and ended up in jail. Did Paxton think Pervis was a flight risk? Of course not, but he needed to be able to crow, Look how tough I am on voter fraud! And the best way to do that was to make sure the suspect was imprisoned.
At the heart of Paxton’s case is that Texas prohibits convicted felons from voting not only while they are serving their time but for the entire length of their parole after, no matter how long (in this case, 14 and 16 years respectively). If convicted, the minimum sentence for Rogers would be 2 years per count with a maximum of 20 years each.
This is the same law that tripped up Crystal Mason, who tried to vote while on federally supervised release, and was sentenced to five years in prison. Mason asked for help at the ballot box and was given a provisional ballot, but her vote was never accepted. Despite then not having actually cast a vote, she was convicted of fraud.
Both Mason and Rogers believed they were voting legitimately. They were not remotely trying to pull a fast one on the system; far from it. Mason sought help at the polling place and Rogers proudly talked to reporters about his long wait. But so what if neither tried to deceive anyone — the law is the law, right?
Except that the Texas statute is premised on the word “knowingly” — the voters must know they are ineligible to vote. Yet the state does not mandate that released prisoners be told they may not participate in elections. As Mason’s own parole officer admitted in court, “it was not a part of standard procedure to share that information. ‘That’s just not something we do.’”
Beyond that, the very same legislators who are now pushing for stricter voting laws have so far refused to reform the system to make it impossible for ineligible voters to register to vote in the first place, according to former elections clerk Chris Hollins. Considering that the state allows ineligible voters to register and that it does not mandate teaching voting laws as part of its parole instruction, it is no wonder Rogers and Mason mistakenly voted.
What is a marvel is that cases like these — the prosecution of individuals casting single votes — are the focus of the state’s efforts. Imagine the use of manpower to arrest and book these “criminals,” the money invested in bringing them to trial, and then the costs of their incarceration. In what universe is that a good use of a state’s resources?
It’s only a good use if you believe that the state’s best interests are served better by merely looking tough more than by actually ferreting out fraud. Paxton’s office boasts that it’s arrested hundreds of suspected ineligible voters, but it doesn’t like to tell the rest of the story; it is a fact that it prosecutes very few of these cases, most of which end up in diversion, which means the matter is resolved without a finding of guilt. In 2020, for instance, Paxton’s office spent 22,000 staff hours on fraud, but ended up prosecuting only 16 cases, all of which involved incorrect addresses and none of which yielded jail time.
The vast gap between the number of charges and the finding of actual fraud should make Texans question what value they receive from their attorney general’s crusade.
Ken Paxton at CPAC: Dallas Morning News
It would be easier to answer what this brings to him: Politically, he is a darling of the right, the man who gets a speaking slot at CPAC and is parroted by Trump for his fraud pronouncements, including the whopper that 100,000 voters were non-citizens, a claim the state had to backtrack from once it was sued; later, it was determined that almost all were naturalized citizens, categorized wrongly by the state’s motor vehicle registration system. But Paxton’s lack of credibility matters not a whit; he has learned the rule that if you say something often enough and loudly enough, it becomes fact (at least for your target audience).
It might seem shocking that an attorney general would continually make misleading statements, but this is Paxton, a man who has been under indictment for securities fraud his entire time in office. However, unlike Rogers or Mason, Paxton has political allies and deep pockets, so his fraud charges didn’t land him in a county jail or get him sentenced to prison (yet). Those are outcomes for poorer and — let’s get real — browner people.
As a review of prosecution records reveal that voters of color are by far the most targeted by Paxton’s office. Black and Latinx voters have made up 72% of those targeted for fraud charges since he took office, despite only making up half of the population.
Photo: Leslie Boorhem-Stephenson for Texas Tribune
This statistic would be no surprise to Mason; though her provisional ballot was one of 4,500 rejected by county officials that year, she was the only person charged with fraud. In fact, Black and Latina women, who comprise only 26% of the state’s population, are slammed with 45% of the fraud charges.
This overcharging by race feeds the fantasy that Paxton is selling and his right-wing acolytes are buying: the idea that dishonest hordes of people of color are stealing elections from law-abiding white people, for whom the only recourse is stricter laws. If that means throwing a single mother in jail even though her vote was never cast or setting a sky-high bail for a guy who never tried to hide anything, so be it. The cruelty of it, the shock and awe of it, is not incidental; it’s fundamental. It’s one more version of “mind your place” in a system built by and for men like the attorney general.
Rogers was freed after three nights in jail thanks to the Bail Project. However, the charges still loom over him. His fate (and his family’s) are in the hands of Paxton, a man who has speeches to deliver, money to make, and no one to hold him accountable.
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This post was previously published on medium.com.
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