Earlier this month, the Texas 2nd Court of Appeals affirmed Rosa Maria Ortega’s eight-year prison sentence for illegal voting. Attorney General Ken Paxton celebrated the decision in a triumphant press release boasting of Ortega’s draconian punishment. But there is nothing just about the fact that Ortega may spend the next eight years languishing behind bars for unknowingly casting illegal ballots. To the contrary, her sentence is wildly out of proportion with her crime—the possible result of prosecutorial chicanery during closing arguments that has no place in a courtroom. And it’s yet another example of prosecutors using isolated cases of illegal voting to intimidate legitimate voters out of casting a ballot.
Although Paxton has presented Ortega’s conduct as evidence that voter fraud is a genuine problem in Texas, her case bears no resemblance to the paranoid myth of immigrants covertly swinging elections. Ortega is a lawful permanent resident who was brought to the United States as a baby. She has a sixth-grade education and did not know that she could not legally vote. In October 2014, she sent a voter-registration application to the Tarrant County Elections Administration, in which she indicated that she was not a citizen. When the office sent her a rejection letter, she called to ask why. An employee, Delores Stevens, explained that Ortega had checked the “No” box for citizenship and could not register unless she checked “Yes.” Ortega mailed in a new application, this time checking the “Yes” box to indicate U.S.
The office was fully aware of the discrepancies between her two applications. It still registered her to vote.
Shortly thereafter, the Texas attorney general received a tip that Ortega was voting illegally. An investigator with the attorney general’s office began to examine her case and discovered that she had voted in Dallas County in 2012 and 2014. Official paperwork revealed that Ortega presented her resident alien card and Social Security card to register, acknowledging that she was not a citizen. For some reason, Dallas County registered her anyway. (She registered as a Republican.)
Investigators then interrogated Ortega at her house. She stated that she was not a citizen but had checked “Yes” on the citizenship box in Tarrant County because Dallas County had previously allowed her to vote. Three months later, prosecutors obtained an arrest warrant, charging Ortega with illegal voting. Ortega insisted that she had simply made an innocent mistake and rejected a plea deal, believing no reasonable jury would convict her. Instead, after a trial, a Tarrant County jury found her guilty on two counts of illegal voting. It sentenced her to eight years imprisonment and a $10,000 fine. Ortega promptly lost custody of her four children and will likely be deported once her sentence is finished.
By any measure, this punishment is extraordinarily harsh. Eight years imprisonment for a nonviolent crime—committed by an individual who did not realize she was breaking the law—is grossly disproportionate. The jury could have instead sentenced her to two years community supervision and no prison. Why did it choose to lock her away for 96 months instead?
On appeal, Ortega argued that prosecutors had biased the jury through inflammatory statements at the punishment phase of the trial. In urging the jury to impose a stringent sentence, one prosecutor declared:
And I just want to throw out one thought to you. You came back with the right verdict, that if you hadn’t, if you’d come back with a not guilty, can you imagine the floodgates that would be open to illegal voting in this county?
As civil rights attorney Sasha Samberg-Champion has noted, this admonition is totally inappropriate. Rather than encourage the jury to focus on fair punishment for Ortega’s offense, the prosecutors exhorted jurors to use her as an example, warning that a light sentence would directly increase “illegal voting.” It is, as Samberg-Champion put it, “conviction by Fox News fearmongering,” raising grave due process concerns. Ortega’s lawyers recognized the problem, quickly objecting that “that’s an improper argument here at sentencing.”
But the trial court overruled the objection. So Ortega asked the appeals court to overturn the sentence, alleging, quite sensibly, that it was impermissibly tainted by this “improper and inflammatory jury argument.” The court declined—not because it found the prosecutor’s statement to be permissible but because, it insisted, her attorney had not objected correctly. Clark Birdsall, Ortega’s defense counsel, should have said he objected because it was “outside the record,” the appeals court wrote. By failing to state “the specific grounds” for his objection at trial, Birdsall forfeited his ability to raise this claim on appeal.
Here, then, is the upshot of the 2nd Court of Appeals’ ruling: Prosecutors may well have unlawfully biased the jury, resulting in an unduly severe sentence, but there is nothing she can do about it because her lawyer failed to use three magic words—outside the record—when he objected. Ortega’s case will now go to the staunchly conservative Texas Court of Criminal Appeals.
In his press release, Paxton said that his office would “hold those accountable who falsely claim eligibility and purposely subvert the election process in Texas.” But as he should recognize that Ortega did not intend to “subvert” anything, and her galling sentence will do nothing to boost public trust in the integrity of Texas’ elections. This case is about one thing: intimidating Americans into forfeiting their right to vote for fear that one mistake could land them in prison. The aggressive prosecution of voting is a potent form of voter suppression meant to deter people uncertain about their eligibility from casting a ballot. Ortega’s sentence does not affirm “the hallowed principle that every citizen’s vote must count,” as Paxton stated. It proves that vote thieves like Paxton won’t hesitate to destroy a hapless woman’s life in their ongoing quest to suppress minority suffrage.
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