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A 62-year-old Texas man who waited hours to cast a ballot in last year’s presidential primary was arrested this week on charges that he had voted illegally.
The man, Hervis Earl Rogers of Houston, waited seven hours outside Texas Southern University to vote in the state’s presidential primary in March 2020. On Wednesday, he was arrested and charged with two counts of illegal voting, a felony. According to court documents, the charges stem from ballots that Mr. Rogers cast on March 3, 2020, and on Nov. 6, 2018, while he was still on parole and not legally permitted to vote.
Tommy Buser-Clancy, a senior staff attorney for the American Civil Liberties Union of Texas and one of the lawyers representing Mr. Rogers, said that Mr. Rogers thought that he could vote during the primary.
“Mr. Rogers’s prosecution really shows the danger of overcriminalizing the election code and the process of participating in a democratic society,” he said. “In particular, it raises the danger that criminal statutes in the election code are being used to go after individuals who at worse have made an innocent mistake. That’s not what any laws should be doing.”
Mr. Buser-Clancy said that the A.C.L.U. was conducting its own investigation into the charges.
Texas election code states that a person convicted of a felony can register to vote and participate in elections only once his or her sentence — including parole — is fully completed. Texas’ election laws also stipulate that a person must knowingly vote illegally to be guilty of a crime.
The Sentencing Project, a criminal-justice nonprofit, estimates that 5.2 million Americans remain disenfranchised because of felony convictions, a disproportionate number of them Black. According to a report the group released last year, over 6.2 percent of the adult African American population is disenfranchised, compared with 1.7 percent of the non-African American population. In Texas, 2.8 percent of voters cannot vote because of felony convictions.
Experts say that disparities in sentencing can make felony voting laws inherently discriminatory against minorities and people with low incomes. And the process for former felons to return to the voter rolls can be confusing, with muddled and frequently changing rules, making it difficult for people trying to vote legally to know what to do.
Mr. Rogers’s story ricocheted around social media after he was identified as the very last person in line to vote at his polling place. Houston Public Media reported at the time that Mr. Rogers arrived at the polls just before 7 p.m. and waited roughly six hours to vote, long after the polls had closed and many others had left the line.
“It is insane, but it’s worth it,” Mr. Rogers told Houston Public Media while waiting in line.
Mr. Rogers is now being held at the Montgomery County Jail with bail set at $100,000. He could face upward of 40 years in prison — 20 years for each charge, according to Mr. Buser-Clancy, who added that Mr. Rogers’s past criminal record means that the sentence could be even higher.
“He’s facing the possibility of an extremely harsh sentence,” he said. “Second-degree felonies are normally reserved for aggravated assault, and to apply it to Mr. Rogers’s case, it just shows how unjust that is.”
Texas’ attorney general, Ken Paxton, who is under investigation for professional misconduct after he challenged President Biden’s win in court, brought the charges against Mr. Rogers. He has made it a mission of his office to prosecute voter-fraud cases, which are very rare in the United States and tend to be minor mistakes when they do happen.
Republicans in Texas and other battleground states have been pushing aggressively to restrict voting laws since former President Donald J. Trump began making false claims that the 2020 election was stolen from him. On Thursday, Republicans in the Texas Legislature presented plans to overhaul the state’s election apparatus for a second time this year. They outlined a raft of proposed new restrictions on voting access that would be among the most far-reaching election laws passed this year.
For some, Mr. Rogers’s case evoked another recent prosecution in the state.
In 2017, Crystal Mason was sentenced to five years in prison for casting a provisional ballot in the 2016 presidential election while she was on supervised release for a federal tax fraud felony. Her provisional ballot was not counted, and her case is pending before Texas’ highest criminal appellate court after Ms. Mason filed for an appeal.
