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February 11, 2017

A (crazy) harsh sentence for a voter fraud conviction in Texas

According to Prez Trump, voter fraud may be one of the most prevalent federal crimes in the United States (perhaps second only to marijuana use).  In light of the President's claims in this regard, I have to think the crazy harsh sentence imposed by a state court in Texas reported in this New York Times article is intended to try to deter this rampant crime.  The lengthy front-page NYT article is headlined "Illegal Voting Gets Texas Woman 8 Years in Prison, and Certain Deportation," and here are the interesting details:

Despite repeated statements by Republican political leaders that American elections are rife with illegal voting, credible reports of fraud have been hard to find and convictions rarer still.

That may help explain the unusually heavy penalty imposed on Rosa Maria Ortega, 37, a permanent resident and a mother of four who lives outside Dallas. On Thursday, a Fort Worth judge sentenced her to eight years in prison — and almost certainly deportation later — after she voted illegally in elections in 2012 and 2014.

The sentence for Ms. Ortega, who was brought to this country by her mother as an infant, “shows how serious Texas is about keeping its elections secure,” Ken Paxton, the Texas attorney general, said in a statement. Her lawyer called it an egregious overreaction, made to score political points, against someone who wrongly believed she was eligible to vote.

“She has a sixth-grade education. She didn’t know she wasn’t legal,” said Ms. Ortega’s lawyer, Clark Birdsall, who once oversaw voter fraud prosecutions in neighboring Dallas County. “She can own property; she can serve in the military; she can get a job; she can pay taxes. But she can’t vote, and she didn’t know that.”

The punishment was strikingly harsh for an offense that usually merits far less jail time, if any. A second fraudulent ballot case in metropolitan Fort Worth ended in 2015 with probation. Ms. Ortega insisted in court that she had been unaware that she was ineligible to vote and was confused by registration forms and explanations by election officials.

Prosecutors for Mr. Paxton and Tarrant County said that she had lied and that the same forms and conversations proved it. A jury convicted her Wednesday of two felony charges. 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.

Both the attorney general’s office and the county prosecutor declined to comment on the specifics of Mr. Birdsall’s statement, citing privacy rules for plea-bargain negotiations. A spokeswoman for Ms. Wilson, Sam Jordan, said any negotiations were only “discussions,” a description Mr. Birdsall disputed....

Ms. Ortega’s case is unusual not just for its harshness but for its circumstances. Many fraud convictions that draw prison sentences — and some that do not — involve clear efforts to influence election results. Texas prosecutors won prison sentences for four men who moved into a hotel in 2010 to claim residency so they could sway a local election. A woman in Brownsville, Tex., was placed on five years’ probation for casting five absentee ballots under different names in elections in 2012.

Lawyers offered no clear motive for Ms. Ortega’s decision to cast ballots beyond her desire to participate in elections. Ms. Ortega, a native of Monterrey, Mexico, came to Texas with her mother when she was an infant. More than a decade later, the family was scattered after the mother was arrested and deported. Two brothers born in Dallas automatically gained citizenship; Ms. Ortega became a permanent resident and gained a green card, her brother Tony Ortega, 35, said in an interview.

As a Dallas County resident, she registered to vote and later cast ballots in elections in 2012 and 2014, her lawyer, Mr. Birdsall, said. While that was illegal, there was no attempt to break the law, he maintained: Some government forms allow applicants to declare that they are permanent residents, but the voting registration form asks only whether an applicant is a citizen. Lacking the permanent resident option, he said, she ticked the “citizen” box. When the county later mailed her a registration card, he said, she believed she “was good to go.”

Ms. Ortega moved to neighboring Tarrant County and again registered, but this time checked a box affirming that she was not a citizen. When her application was rejected in March 2015, the trial showed, she called election officials and told them that she had previously voted in Dallas County without difficulty. Told that she could not vote unless she was a citizen, she asked for another application, and returned it with a check in the box affirming citizenship. That raised questions, and law enforcement officials arrested her on fraud charges.

Jonathan White, an assistant attorney general who helped prosecute the Ortega case with Tarrant County officials, said the evidence of fraud was unambiguous. “She told the elections office she was a citizen,” he said. “She told everyone else she wasn’t,” including a recorded statement to prosecutors in which she said she was a citizen of Mexico.

Mr. Birdsall said the arrest and prosecution are punishing a woman for her own confusion over whether residency and citizenship confer the same rights. “She wasn’t trying to topple the country,” he said. “She was trying to make more serious decisions about our country than the 50 percent of the people who didn’t bother to vote in the last election.”...

Ms. Ortega is now in a Fort Worth jail awaiting transfer to a state prison. Her four children, ages 13 to 16, are being cared for by siblings and her fiancé, Oscar Sherman, 27, a trucker who said her arrest had scotched their plans to marry. The children’s fate is unclear. Mr. Sherman lacks legal custody; her siblings are still debating their options.

Ms. Ortega’s future is bleak. The federal government frowns on giving green cards to felons. “She’ll do eight years in a Texas prison,” Mr. Birdsall said. “And then she’ll be deported, and wake up blinking and scratching in a country she doesn’t know.”

Far-right websites have seized on Ms. Ortega’s conviction as proof that Mr. Trump is right about rampant fraud and efforts by Democrats to steal the November election. There is, however, at least one flaw in that story: Ms. Ortega was a registered Republican. “She voted for Mitt Romney over Barack Obama in the 2012 election. In 2014 she voted for our current attorney general, Ken Paxton,” Mr. Birdsall said. “And guess what? He’s the one responsible for prosecuting her.”

February 11, 2017 at 09:47 AM | Permalink

Comments

She should sue the local board that allowed her to vote. Her crime is 100% the fault of their carelessness.

Posted by: David Behar | Feb 11, 2017 10:05:34 AM

Texas justice is to justice as military music is to music.

Posted by: anon2 | Feb 11, 2017 10:24:09 AM

Eight years in the holes is the kind of sentence meted out for not taking a plea deal. But this story is pretty ambiguous about whether she rejected the deal or not. Were the prosecutors collectively talking out of both sides? Were her lawyers incompetent or trying to make a political point?

Posted by: Boffin | Feb 11, 2017 10:57:17 AM

Had she finished high school , perhaps she would not have registered to vote !

Posted by: It is I 😆 Docile - in Oregon | Feb 11, 2017 11:00:40 AM

I have followed this blog for a long time and there are many moral tragedies that have ensued but this might just take the case for the saddest. Not the most vile or the most malicious but the saddest. Eight years for a paperwork crime, a crime that would not have happened if the government had an effective form.

The jury is crazy here too. Fraud is a mens rea crime and how could they have found beyond a reasonable doubt that she had a guilty mind with these circumstances?

Injustice.

Posted by: Daniel | Feb 11, 2017 1:57:43 PM

Hmmm. Looks like she knew what she was doing, due to the check box issues.

In any event, 8 years is a bit much, but deportation should happen.

Posted by: federalist | Feb 11, 2017 2:26:34 PM

@Federalist

Explain how checking a box, especially checking a box on a form that doesn't given one an option to declare one's actual status, reveal a guilty mind? I genuinely want to know the answer to this question.

She checked a box that said she wasn't a citizen, then checked a box that says she was. That's confusion. if she was genuinely intended to commit a crime, she never would have checked a box saying she wasn't a citizen. That's the crazy thing. The only reason anyone grew suspicious was because SHE TOLD THE TRUTH. Instead, they employed a game of "gotcha!"

The moral lesson of this case is to lie, always lie, and never ever stop lying because the moment one does stop lying it will be used against you. That's not the moral universe that anyone should want to live in. if we can't tell the difference between human ineptitude and malice a society has lost its way.

Posted by: Daniel | Feb 11, 2017 3:30:29 PM

"Ms. Ortega moved to neighboring Tarrant County and again registered, but this time checked a box affirming that she was not a citizen. When her application was rejected in March 2015, the trial showed, she called election officials and told them that she had previously voted in Dallas County without difficulty. Told that she could not vote unless she was a citizen, she asked for another application, and returned it with a check in the box affirming citizenship. That raised questions, and law enforcement officials arrested her on fraud charges."

Daniel, your solicitousness is touching, but this pretty much dooms her "babe in the woods" routine.

Eight years is a bit harsh, but I have no problem with deportation.

Posted by: federalist | Feb 11, 2017 3:47:39 PM

@federalist

right....

"the trial showed, she called election officials and told them that she had previously voted in Dallas County without difficulty."

Because that is just what fraudster's do: they admit to crimes. When one bank denies them a loan because of fake credentials, they claim that the credentials can't be false because they used them to successfully defraud a prior bank.

Uh huh, sure....


You know federalist I have been a fan of mens rea reform and I supported it on this blog before. I am now having second thoughts. Because if all that it takes to determine whether or not someone has a guilty mind is the color of their skin, I want no part of mens rea reform.

Posted by: Daniel | Feb 11, 2017 5:17:29 PM

"Far-right websites have seized on Ms. Ortega’s conviction as proof that Mr. Trump is right about rampant fraud and efforts by Democrats to steal the November election. There is, however, at least one flaw in that story: Ms. Ortega was a registered Republican. “She voted for Mitt Romney over Barack Obama in the 2012 election. In 2014 she voted for our current attorney general, Ken Paxton,” Mr. Birdsall said. “And guess what? He’s the one responsible for prosecuting her.”

You can't make up that sort of irony.

The usual case of the few "voter fraud" that arise amount to reasonable mistake, voting laws often confusing, including residency requirements. The details here seem to me somewhat unclear but can see how a reasonable jury can find her guilty. And, voting without being authorized isn't like a traffic offense.

But, eight years? Serious violent felonies often get less than that. The excessive nature is seen by considerations early on that could have gave her no time at all. Cruel and unusual punishment, especially if deportation is put on top of it. A sane policy regarding someone who came here as an infant would have brought citizenship by now. It is far from out of the realm of possibility that even non-citizens which such long and strong connections would have the right to vote at least in local elections.

[non-citizens can vote in a few local elections]

Instead we have this craziness which will occur with "wars" of all types.

Posted by: Joe | Feb 11, 2017 6:48:14 PM

And, voting without being authorized isn't like a traffic offense.

Except, it really is. Her one vote doesn't matter and there's no evidence outside of GOP rightthink that she's part of any systematic campaign. It appears she's being crucified for taking seriously this civic-participation religion of ours.

Posted by: Fairlawn | Feb 11, 2017 8:06:35 PM

Sharen Wilson was a notoriously harsh and stern district judge. It doesn't surprise me that she is the DA behind this prosecution and sentence. I don't even think John McBryde would have meted out this sentence, even if the guidelines called for it. In Texas, she won't serve anywhere near 8 years.

Posted by: Fat Bastard | Feb 11, 2017 8:07:47 PM

FB,

I see 8 years plus deportation as lenient, I would much rather see her executed.

And I am not buying any sort of innocent mistake explanation, even for the first one where she checked the "I am a citizen" box before being specifically told that she had to be a citizen in order to be an eligible voter.

Posted by: Soronel Haetir | Feb 12, 2017 12:46:10 AM

Obama releases 68 year old non-violent drug dealer. He is re-arrested with 2 pounds of cocaine, after a wild, high speed car chase. So much for the people supporting Harvard Law grad, Obama. So much for pro-criminal deniers saying age slows down crime. So much for those claiming dealers are not violent. None of that would have taken place had he been executed at the time of first conviction.

http://nypost.com/2017/02/06/drug-dealer-whose-sentence-was-commuted-by-obama-is-back-behind-bars/

Posted by: David Behar | Feb 12, 2017 1:11:30 AM

The sentence is harsh, it should probably be a misdemeanor or lesser offense that can include jail time. However, its not completely unreasonable, she had a 2nd chance so to speak, she lied initially then told the truth and then in the same county lied again. If she believed she was a citizen then why did she check the box non-citizen and saying citizen of mexico. I wonder if the box just says citizen. I guess she should have asked for help or on the phone said she had a green card.

Although I could see leniency, what if 100 people did it? It seemed initially the gotcha was that she told them truthfully she wasn't then lied when the form was sent. The form doesn't need to have a permanent resident form if it doesn't make a difference because would the form say student via also? Its hard to know what her mind is,was the form in spanish in which citizen could mean resident in spanish, or was she arrogant and thought well Ill do what I have to vote even if its lying.

Posted by: alex | Feb 12, 2017 3:06:25 AM

Not likely the prospective husband actually said their marriage plans were "scotched."

Posted by: Diogenes | Feb 12, 2017 6:50:22 AM

Boffin,

It sounds to me like there were no plea offers (I'd also point out that's typically more of a federal thing than a state thing). It sounds like there may have been some tentative offers made (or at least discussed), but the prosecutor's boss said no. They prosecuted her without an offer and she was convicted. She was then sentenced to that amount of time.

I tend to agree with the premise of the story that voter fraud without any attempt to influence the election beyond a simple vote doesn't warrant that harsh of a sentence. Deportation makes sense, but eight years plus deportation doesn't. I suspect her immigration status was a factor. If she had simply registered in the wrong county for whatever reason but was a US citizen, it wouldn't be the same. That being said, there's clear evidence of voter fraud in the second time she voted (perhaps not in the first).

Posted by: Erik M | Feb 12, 2017 11:29:45 AM

"Except, it really is. Her one vote doesn't matter and there's no evidence outside of GOP right think that she's part of any systematic campaign. It appears she's being crucified for taking seriously this civic-participation religion of ours."

If she was DENIED her right to vote, would we say "her one vote doesn't matter"? No, because the right to vote is a fundamental right and aspect of republican government that is of particular importance. If nothing else, if she actually consciously violated the rule here, it aids and abets the hysteria. So, no, it's not merely a traffic offense.

This doesn't change that she a victim of hysteria etc., such victims at times guilty of something, but punished much more than warranted.

Posted by: Joe | Feb 12, 2017 11:36:51 AM

"Deportation makes sense"

She came here as an infant and it sounds like she has children who are American citizens. Why exactly does deportation make sense for such a crime?

Posted by: Joe | Feb 12, 2017 11:38:33 AM

@alex

" Its hard to know what her mind is.."

Then she is not actually guilty. Because the standard for guilt is not confusion, the standard is proof beyond a reasonable doubt. That's my rub. You could persuade me that more likely than not she is guilty but preponderance of evidence is not the standard. But beyond a reasonable doubt? No way. The fact that she has a 6th grade education alone is a reasonable doubt.

Posted by: Daniel | Feb 12, 2017 1:18:59 PM

As noted elsewhere in this blog, prosecutorial discretion. affected by factors not immediately relevant to the case at bar, e.g. political issues such as immigration, "tough-on-crime," re-election, Justice Department priorities, etc. etc., is among the worst parts of our system.

Posted by: Fat Bastard | Feb 13, 2017 9:38:51 AM

"The fact that she has a 6th grade education alone is a reasonable doubt."

I would be wary to assume too much in that respect, especially since it can be used against people without much official education in other contexts. The basics of who can vote and checking boxes on forms is something that someone with that amount of education can quite easily be able to handle. I would not use this to decide her case.

Posted by: Joe | Feb 13, 2017 10:45:27 AM

(NB: I am not a lawyer and have no practical legal experience....)

I've been searching the web expecting to see some sort of appeal or legal argument regarding the application of the 8th amendment in relation to this case,

Wikipedia said "the 8th amendment prohibits the federal government from imposing excessive bail, excessive fines, or cruel and unusual punishment. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual Punishment Clause also applies to the states.",

and that I n Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan wrote, "There are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual'."

The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity," especially torture.
"A severe punishment that is obviously inflicted in wholly arbitrary fashion." (Furman v. Georgia temporarily suspended capital punishment for this reason.)
"A severe punishment that is clearly and totally rejected throughout society."
"A severe punishment that is patently unnecessary"

So... I am hoping that someone will explain to me how this sentence could possibly stand?

{for DAB, I'm just an outraged alien observer, scouring the web to find if someone is going to mount an 8th amendment defense for this poor woman}

Posted by: Dd | Feb 13, 2017 11:41:23 AM

Dd: The draconian punishment is not for illegal voting, it's for defying the prosecutors and not dancing in their dog and pony show.

The prosecution was explicitly political, as noted in the original article, and decisions were made by the AG. Of course they're all lying, as well as the press, but you can read between the lines.

The real criminal in all of this is her nincompoop lawyer.

Posted by: Boffin | Feb 13, 2017 11:55:49 AM

She took away someone's vote--that merits punishment, and since she wasn't here legally, a deportation. Is the idea that because someone has kids here, they somehow shouldn't be deported?

Posted by: federalist | Feb 13, 2017 12:21:38 PM

The facts (including her education) are somewhat different, but this 7th Circuit ruling just handed down is germane: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D02-13/C:15-2204:J:Easterbrook:aut:T:fnOp:N:1911733:S:0

Dd, you quoted a single justice's opinion, not the opinion of the Supreme Court, but for sake of simplicity we can use that. It provides a basic principle that needs to apply to the specific facts. And, later cases applied it very strictly to non-capital cases. It is very hard to make a case that a sentence not death violates the Eighth Amendment. Now, I think this one is so extreme that it does. But, unfortunately, the courts have accepted some very horrible punishments, so she has an uphill battle.

Posted by: Joe | Feb 13, 2017 12:47:01 PM

Firstly, thanks for all the comments, including federalist.

To federalist: it is my understanding that she was legally here, with permanent residence status and has lived her whole life in the US (came to the US as infant). I can't see how a minor, let alone an infant can be held responsible for the actions of their parents. While not a citizen, I understand that she had permanent residency (I'm happy to be corrected if I'm wrong). So the concept of being expelled to another country after living ~35 years of their 37 years in the US seems unduly harsh.

In regards to arbitrary, for the same offense one person is given a probation and she receives 8-years, separation from family (US citizens) and likely deportation.

It clearly passes an "unusual" test.

Joe, I agree. Lesser punishments are handed out on a regular basis to truly evil people who have assisted plans to harm the public and govt infrastructure. How this computes when compared to this person's illegal (though probably unintended and of limited impact) act is hard to comprehend.

So, does it come down to the subjective definition of "cruel" in regards to punishment?

Thanks also Boffin for comment.

Posted by: Dd | Feb 13, 2017 2:23:39 PM

Fed. The lady voted for Trump. The case should be dropped.

Posted by: David Behar | Feb 13, 2017 4:08:02 PM

Boffin, she didn't defy the prosecutors. The prosecutors had no intention of anything other than a trial and conviction and there's no evidence she would have gotten a lower sentence if she had pled guilty.

federalist, how did she take away someone else's vote?

Posted by: Erik M | Feb 14, 2017 11:38:06 AM

"So, does it come down to the subjective definition of "cruel" in regards to punishment?"

Realistically, yes, but the doctrine set up tries to include objective criteria such as existing practice ("unusual" would warrant that). OTOH, since the Supreme Court said that the justices themselves (and judges in lower court rulings) provide some independent judgment here, there is going to be some level of subjectivity at least along edges.

One helpful thing for the defendant here is that the Supreme Court in recent years have shown some concern about the breadth of application of laws on aliens convicted of crimes, including when their expulsion from the country is at issue. The material is there to successfully challenge this sentence if the judges are willing to see the injustice.

Posted by: Joe | Feb 20, 2017 12:32:38 PM

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