A 62-year-old Texas man who waited hours to cast a ballot in last year’s presidential primary was arrested this past 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 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 Rogers, said Rogers thought he could vote during the primary.
“Mr. Rogers’ 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.”
Buser-Clancy said that the ACLU 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% of the adult African American population is disenfranchised, compared with 1.7% of the non-African American population. In Texas, 2.8% 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.
Rogers’ 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 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,” Rogers told Houston Public Media while waiting in line.
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 Buser-Clancy, who added that Rogers’ 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’ case, it just shows how unjust that is.”
Texas Attorney General Ken Paxton, who is under investigation for professional misconduct after he challenged in court President Joe Biden’s election victory, brought the charges against 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 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.
“Hervis is a felon rightly barred from voting under TX law,” Paxton wrote on Twitter. “I prosecute voter fraud everywhere we find it!”
For some, Rogers’ 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 Mason filed for an appeal.
After she was convicted, Mason served 10 months in federal prison for violating her supervised release, but she has remained free on a $20,000 bond in her voting case, as she pursues her appeal in state court, said her lawyer, Alison Grinter. If Mason loses her appeal, she will have to begin serving her five-year sentence, Grinter said.
Rogers and Mason may meet in the coming weeks, Grinter said.
“They share a bond that neither of them wanted at this point,” Grinter said. “She really feels for him, and knows what it feels like to be made political sport of like this.”
On Friday, Mason expressed support for Rogers.
“I wish this had never happened to you,” Mason wrote on Twitter. “I’m sorry that you’re going though this. Welcome to the fight.”
This article originally appeared in The New York Times.