8 Years in Prison for Voting Illegally Is Way Too Much

But not according Texas Attorney General Ken Paxton.


Joyce Marshall/TNS/Newscom

A Texas woman with a middle school education lost her appeal of a voter fraud conviction this week. Rosa Maria Ortega, a green-card holder and mother of four who was charged with fraud for voting in the 2012 and 2014 elections, could spend eight years in prison and will almost certainly be deported afterward.

According to Texas Attorney General Ken Paxton (R), that's a good thing. "We will hold those accountable who falsely claim eligibility and purposely subvert the election process in Texas," he said in a statement released Tuesday.

But it appears Ortega wasn't trying to subvert the system. After her mother was deported when she was a teenager, Ortega committed to following the law. "When my mom was here, she did everything illegal," Ortega told The New York Times last year. "I wasn't going to let that happen to me."

While her schooling ended before she reached the eighth grade, Ortega was able to find work at a Texas employment office via the Job Corps program. She believed it was her duty as a U.S. resident to vote. When the voter application directed her to declare herself either a "citizen" or a "noncitizen," Ortega didn't quite understand how she was supposed to respond. "She doesn't know. She's got this [green] card that says 'resident' on it, so she doesn't mark that she's not a citizen," her defense attorney, Clark Birdsall, told The Washington Post last year. "She had no ulterior motive beyond what she thought, mistakenly, was her civic duty."

Ortega was arrested in 2015 for voter fraud. In February 2017, she was convicted of illegally voting in 2012 and 2014, and later sentenced by a Fort Worth judge to eight years behind bars. Moreover, Ortega's felony conviction meant she would likely be deported back to her native Mexico upon her release.

Despite her conviction and subsequent sentencing, Ortega didn't give up. In October 2017, she filed an appeal with the Texas 2nd Court of Appeals, providing two reasons why the conviction should be overturned. For one thing, she claimed the trial court allowed what should have been inadmissible evidence:

Without giving Appellant Miranda warnings, law enforcement questioned her and obtained multiple admissions to pointed incriminating questions in a recorded interview. Any of the multiple admissions regarding voting while her status was only legal permanent resident were sufficient, standing alone, to solidify probable cause. These circumstances caused a consensual encounter to transform into custodial interrogation, and the trial court abused its discretion by admitting the recorded, un-Mirandized, statements.

Ortega also argued the trial court "erred by allowing improper and inflammatory jury argument outside the record." At her sentencing, a prosecutor for the state had told the jury: "If you'd come back with a not guilty, can you imagine the floodgates that would be open to illegal voting in this county?"

But in a ruling dated November 21, the appeals court upheld her conviction. According to Justice Mark Pittman's memorandum opinion, Ortega's defense attorney said "no objection" when the state's prosecutor proposed using the transcript of Ortega's interview with investigators as evidence. Regarding the second argument, Pittman wrote that Ortega "did not raise her 'outside the record' ground in the trial court" and thus "did not preserve that part of her complaint," which she would have had to do in order for the appeals court to review her complaint.

"Because Appellant forfeited both issues by failing to preserve them in the trial court, we affirm the trial court's judgments," Pittman concluded.

In a statement yesterday, Paxton celebrated the appeals court's ruling. "This case underscores the importance that Texans place on the institution of voting, and the hallowed principle that every citizen's vote must count," he said.

But Paxton's statement ignores the reality of the situation. A woman is heading to prison and will likely be deported once she's released for doing something she says she felt obligated to do, and that had no impact on anyone other than herself. Additionally, she had no co-conspirators and was not engaged in any other form of criminality. While ignorance of the law is no excuse, it's also not grounds for the state to ruin a person's life.

Ortega admitted that she's been voting illegally since 2004—five times in total, according to Paxton. In 2012 and 2014, she voted in Dallas County after claiming to be a citizen on her registration form. She later moved to Tarrant County and attempted to register as a noncitizen in October 2014. Her application was rejected, so she tried again in March 2015, this time checking the "citizen" box. According to Paxton's statement, "at the same time Ortega falsely claimed to be a U.S. citizen for the purposes of voting, she correctly informed the authorities that she was a resident alien in order to obtain a driver's license. That evidence negated Ortega's claim that she made an innocent mistake."

Paxton's press release also claimed Ortega refused the state's offer of "two years community supervision" with no prison time, instead opting for a jury trial. It's possible he was referring to a plea bargain he was reportedly ready to offer Ortega. As the Times reported last year:

Mr. Birdsall said Mr. Paxton's office had been prepared to dismiss all charges against Ms. Ortega if she agreed to testify on voting procedures before the Texas Legislature. But the Tarrant County criminal district attorney, Sharen Wilson, vetoed that deal, he said, insisting on a trial that would showcase her office's efforts to crack down on election fraud.

Ortega, in other words, may not have a choice to plea down, and even if she had, it is heinous to punish any person explicitly for exercising their constitutional right to a trial.

Ortega is not the only illegal voter in Tarrant County to have the book thrown at her. In March, Reason's Scott Shackford wrote about Crytsal Mason, a convicted felon who voted while on supervised release. She didn't even know this was against the law, but got slapped with a five-year prison sentence anyway. "This only happens in Tarrant County," Mason's attorney, Alison Grinter, told the Fort Worth Star-Telegram.

As Shackford pointed out, cases like these are the result of hysteria over supposed widespread voter fraud. In reality, there's little evidence to suggest voter fraud is a major problem that affects final election results. But the hysteria means people like Ortega and Mason are punished like violent criminals.

Paxton's statement notes that "under Texas parole law for this type of offense," Ortega could be released within a year. Even if she's released after a year, and is by some miracle not deported, the pain she and her family will endure far exceeds the harm she caused the state of Texas with five illegal votes.