Texas Senate passes bill making illegal voting a felony again; bill moves to Texas House

Senate Bill 2, authored by Senator Bryan Hughes, would also change the requirement that a person know he or she was voting illegally in order to be charged and convicted.

Senator Bryan Hughes, R-Mineola, leading the Senate floor debate in favor of SB 2.
Screenshot/Texas Legislature

The Texas Legislature has moved one step closer to once again making illegal voting a felony. Senate Bill 2 passed the Senate on its third and final reading Tuesday afternoon by a party-line vote and now moves to the House.

SB 2's author is Senator Bryan Hughes, R-Mineola. Hughes stressed repeatedly during the debate over the bill that illegal voting had been a felony for nearly 50 years before the 2021 omnibus elections bill changed it to Class A felony, and he argued SB 2 merely restored the previous status quo.

"When we think about illegal voting, I think we all agree that that's a big deal," Hughes said, "that that vote, that franchise is precious and ought to be treated that way."

In addition to making illegal voting a second-degree felony, if passed, SB 2 would also change the current requirement that people need to know they’re breaking the law in order to be charged, a requirement referred to in legal terms as "mens rea."

"I'm concerned that by taking the mens rea out, the knowing requirement, we're going to run the risk of criminalizing (non-criminal behavior) and therefore deter people from wanting to vote,” said Senator José Menéndez, D-San Antonio.

Senator Bryan Hughes, the bill's author, responded to Democratic objections with an analogy. "Under the law today, if I break into your house and I take your stuff – and I intentionally know it's your house, I'm taking your stuff – and I'm convicted, I'm guilty of the crime of burglary. I don't have to know that burglary is against the law. I just have to know that I came in your house, broke in your house, and took your stuff," Hughes said.

The argument didn't sway any of the 12 Democratic senators. Senator Juan "Chuy" Hinojosa, D-McAllen, said, "You may end up convicting a lot of innocent people that had no intention, no evil mind, to commit a crime."

But Hughes' argument carried all of the chambers' 19 Republicans. Senator Joan Huffman, R-Houston, was skeptical that SB 2 would lower the standard for guilt and sweep up large numbers of voters who did not intend to break the law. She pointed to language in the bill that indicated a person would need to know when they voted "of a particular circumstance that makes the person not eligible to vote."

"I promise you, as a former prosecutor, a prosecutor will look at that and realize that they have to prove beyond a reasonable doubt that the person knows that this circumstance exists," Huffman said. "This is what the law says. It's going to be an element of the crime, and if it's not proved beyond a reasonable doubt, I guarantee you the person is going to be found not guilty, or never be indicted by a grand jury – more likely, that would be the likely scenario – or prosecution declined by a district attorney because it's impossible to prove."

Hughes said that the bill was designed to reverse a Texas Court of Criminal Appeals ruling which held that the conviction of Crystal Mason must be reconsidered. Mason voted in 2016 while still on parole but didn’t realize she was ineligible to vote.

Hughes pointed to Mason's original crime – she was arrested and pled guilty to tax fraud in 2011 – as a justification for stiffening the penalty for illegal voting. "It's a pretty serious crime," Hughes said. "It's not some little mistake or error."

Senator John Whitmire, D-Houston, countered that Hughes was being unusually harsh by further penalizing a person who had served their time and believed, incorrectly, she was now eligible to vote. "I don't know whether you know the rest of the story" of Crystal Mason, Whitmire said. "She lost her family, her job, was incarcerated."