Texas man who waited seven hours at polls is charged with voting illegally

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<span>Photograph: Callaghan O’Hare/Reuters</span>
Photograph: Callaghan O’Hare/Reuters

A Texas man who became a national hero after he waited seven hours in line to vote in last year’s presidential primary has been arrested and charged with voting illegally.

Hervis Rogers, who is Black, became a symbol of a determination to have one’s voice heard.

“I wanted to get my vote in, voice my opinion,” he told a local ABC affiliate after his long wait to cast his ballot in the 2020 election. “I wasn’t going to let anything stop me, so I waited it out.”

But on Wednesday, according to Houston Public Media, he was arrested and charged with two counts of illegal voting.

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The Texas attorney general, Ken Paxton, is reportedly bringing charges that allege Rogers voted while on parole for a 1995 conviction for burglary and intent to commit theft.

In Texas, it is illegal for anyone convicted of a felony to vote until they complete their sentence, including probation and parole. Rogers’ parole began in 2004 and was set to expire in June 2020. The Texas primaries were held in March.

Rogers cannot afford $100,000 bail and is being held in jail, said Thomas Buser-Clancy, an attorney with the Texas chapter of the American Civil Liberties Union, which is helping represent Rogers.

“The arrest and prosecution of Mr Rogers should alarm all Texans. He waited in line for over six hours to vote to fulfill what he believed to be his civic duty, and is now locked up on a bail amount that most people could not afford,” said Andre Segura, the legal director of the Texas ACLU, in a statement. “He faces potentially decades in jail. Our laws should not intimidate people from voting by increasing the risk of prosecution for, at worst, innocent mistakes.”

Christopher Downey, a criminal defense attorney, told KPRC 2 Rogers’ two felony convictions meant he could face a more severe prison sentence on the illegal voting charges – potentially 25 years to life on each count.

Few prosecutors have pursued election-related crimes more than Paxton, a Republican himself under FBI investigation regarding allegations of bribery, which he denies, and who filed a long-shot lawsuit at the US supreme court trying to overturn Donald Trump’s defeat in 2020.

Even as Paxton publicly has touted the number of cases his office has been involved in, a 2019 HuffPost review found that most involved relatively minor infractions.

His office did not immediately respond to a request for comment about the Rogers case.

Rachel Hooper, a Republican precinct chair in Harris county, filed a formal complaint in March last year, saying Rogers was ineligible to vote.

She obtained a copy of his voter registration application through a public records request and noted he had signed a statement indicating he had completed all punishment for a felony. The form only contains the warning in small print at the bottom of the application.

In an email to the Guardian last year, Hooper wrote: “As a former prosecutor, I want to give them the opportunity to investigate and take action. As a voter, I just felt a sense of obligation to file this complaint after learning that Mr Rogers was in violation of Texas election law.”

Hooper provided a copy of Rogers’ certificate of parole, from May 2004. The document contains a lengthy description of instructions for people on parole but does not say they cannot vote.

An estimated 5.2 million people cannot vote in the US because of felony convictions, according to an estimate by the Sentencing Project, a criminal justice non-profit.

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Each US state has its own rules. Maine, Vermont and the District of Columbia allow people convicted of felonies to vote while they are in prison. Several other states allow people convicted of felonies to vote once they are released. Others, like Texas, require people with felonies to complete their entire sentence before they can vote.

Such a mix of systems makes it extremely confusing and difficult for anyone who has a felony to figure out if they are eligible to vote.

In 2017, a Texas prosecutor made headlines for bringing criminal charges against Crystal Mason, a Black woman in Fort Worth who cast a provisional ballot in 2016 while she was on supervised release for a federal tax fraud felony.

Mason was convicted of illegal voting and sentenced to five years in prison, a sentence many saw as overly harsh. Probation officials conceded they had never told Mason she couldn’t vote. Her provisional ballot ultimately went uncounted. The case is pending before Texas’s highest criminal appellate court.

Republicans in Texas and elsewhere have moved aggressively to implement new laws that make it harder to vote. The Texas legislature started a special session on Thursday in which it is expected to impose new requirements on mail-in voting and empower partisan poll watchers, among other measures.

• This article was amended on 11 July 2021 because an earlier version said that Hooper filed a complaint saying that “Harris was ineligible to vote”. The intended reference was to Rogers.

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