The meme posted by U.S. Rep. Ro Khanna accurately stated the basic facts of the voter fraud convictions involving Crystal Mason and Bruce Bartman. However...
In his Facebook post, Khanna falsely indicated that a difference in the race of the defendants was the only or key distinction between their cases. In fact, Mason was charged in Texas with an offense that is graded higher than the offense for which Bartman, in Pennsylvania, was convicted. Also, sentencing guidelines present in Pennsylvania recommended a non-custodial sentence in the case of Bartman, but those guidelines were not in place in Texas, another significant difference which helped explain the disparity in the punishments received by Bartman and Mason.
In May 2021, U.S. Rep. Ro Khanna, a Democrat from California, posted a widely shared meme that contrasted the punishments handed down to a Black woman and a white man, in two widely publicized voter fraud cases. The meme contained the following text:
Bruce Bartman, white guy in Pennsylvania who illegally voted for Trump on behalf of his dead mother, gets 5 years probation.
Crystal Mason, a Black woman in Texas who voted while on supervised release when she didn’t know she was ineligible, gets 5 years in prison.
There are two justice systems in America.
The meme (displayed above) credited Ari Berman, a journalist who writes about voting rights for Mother Jones, and who originally posted the tweet on which Khanna’s meme was based.
In his accompanying Facebook post, Khanna added: “How is this fair? The difference is in black and white,” with the clear suggestion being that the only or key difference between the two cases was the racial identities of the defendants.
That’s where our fact check focuses. We will assess how accurately the meme presented the facts of each case and examine whether any other relevant factors existed which could have led to such different outcomes.
Overall, the meme accurately represented the basic facts of each case. However, Khanna’s post failed to mention some significant differences between them, giving readers the false impression that race was the only possible explanation for the disparate punishments handed out to Bartman and Mason. As a result, we’re issuing a rating of “Mixture.”
What Bartman Did, and How He Was Punished
On April 30, 2021, Bruce Leland Bartman, 70, pleaded guilty to two counts of third-degree felony perjury and one count of first-degree misdemeanor unlawful voting, before the Court of Common Pleas in Delaware County, Pennsylvania.
Under Pennsylvania law, perjury is defined as follows:
A person is guilty of perjury, a felony of the third degree, if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when the statement is material and he does not believe it to be true.
Unlawful voting is defined as follows:
Any person who votes or attempts to vote at any primary or election, knowing that he does not possess all the qualifications of an elector at such primary or election, as set forth in this act, shall be guilty of a misdemeanor of the first degree, and, upon conviction thereof, shall be sentenced to pay a fine not exceeding ten thousand ($10,000) dollars, or to undergo an imprisonment of not more than five (5) years, or both, in the discretion of the court.
In December 2020, prosecutors set out the following allegations about Bartman:
- In August 2020, he registered his mother and mother-in-law, both dead, as Republican voters in Pennsylvania
- He requested an absentee ballot on behalf of his mother.
- In October 2020, election officials in Delaware County sent out an absentee ballot addressed to Bartman’s mother
- Bartman fraudulently filled it out in his mother’s name, casting a vote for then-President Donald Trump, and mailed it back.
Bartman was convicted on all three counts which, in principle, left him vulnerable to a combined prison sentence of up to 19 years. However, Pennsylvania sentencing guidelines recommend non-custodial punishments for offenders convicted of perjury with no past history of felony convictions. A search of the Unified Judicial System of Pennsylvania website showed no previous convictions for Bartman.
Thus, Judge George Pagano sentenced Bartman to five years probation for each of the three offenses, to run concurrently. He also ordered his de-registration as a voter, and ordered him to pay more than $3,500 in fees.
What Mason Did, and How She Was Punished
In March 2012, Mason and her then-husband Sanford Hobbs, who jointly ran a tax preparation business in Everman, Texas, were convicted of tax fraud in the U.S. District Court for the northern district of Texas. Both pleaded guilty and both received a sentence of five years in prison, to be followed by three years of supervised release.
In November 2015, Mason was released from prison to a re-entry halfway house, and was further released into the community in August 2016. On Nov. 8, 2016, she traveled to her local polling place to vote in that year’s election. However, because of her felony conviction, her voter registration had been canceled.
Texas law states that, in order to be eligible to vote, an individual cannot be a convicted felon who has not yet served their sentence, “including any term of incarceration, parole, or supervision, or completed a period of probation ordered by any court.”
A poll worker offered Mason a provisional ballot, which she completed and submitted. The provisional ballot includes an affidavit in which the would-be voter declares, among other things, that they are not a convicted felon or, if they are, they have completed their punishment, including any period of supervision.
A person commits an offense if the person:
(1) votes or attempts to vote in an election in which the person knows the person is not eligible to vote…
Mason was accused of voting while being aware that, because of her felony conviction and ongoing supervised release, she was ineligible to do so. She waived her right to a jury trial and pleaded not guilty, but in March 2018, Ruben Gonzalez, District Court judge in Tarrant County, Texas, convicted Mason, then aged 43, and sentenced her to five years in prison.
Under Texas law, the statutory sentencing range set out for second-degree felonies is between two and 20 years.
Mason’s Appeals Against Conviction
Mason asked the court for a new trial, which was rejected, and then filed an appeal against her conviction before the Court of Appeals for the 2nd District of Texas. Lawyers from the ACLU and the Texas Civil Rights Project joined her legal team, and the League of Women Voters filed amicus curiae briefs in support of Mason.
Briefly, Mason made the following arguments:
- She did not actually vote, but rather cast a provisional ballot that was not ultimately counted
- She was not ineligible to vote, due to ambiguities over the nature and requirements of the supervision she was under at the time
- Even if, for the sake of argument, she was ineligible to vote, she did not know she was ineligible to vote
- “Supervision” is so vaguely defined, in the relevant Texas law, that that law is unconstitutional
- The district court’s ruling effectively criminalized Mason for even casting a provisional ballot — which clashes with the federal Help America Vote Act — rather than the consequence being simply that her ballot was not counted
- She received ineffective counsel in her criminal trial.
The 2nd Court of Appeals rejected those arguments. In an opinion affirming the district court’s conviction, Justice Wade Birdwell held that:
- Court precedents meant that Mason did not have to know, specifically, that she was ineligible to vote, but merely be aware of the underlying conviction that made her ineligible, in order to have broken the law
- The term of federal supervision being served by Mason at the time she voted clearly meant that she had not “fully discharged” her punishment for the tax fraud conviction and was therefore ineligible to vote
- Definitions of “vote”, found in court precedents and elsewhere in Texas law, require only casting a ballot, not that a ballot be subsequently counted. Therefore, Mason did in fact vote, regardless of whether her provisional ballot was ultimately counted
- Although the Help America Vote Act protects a voter’s right to cast a provisional ballot, voters are still primarily responsible for confirming that they are eligible to vote, before they do so
- Mason did not receive ineffective counsel at her trial.
Mason then petitioned the Texas Court of Criminal Appeals to hear her case, and the court agreed in March 2021, setting out the following three legal questions to be adjudicated:
- Is it actually irrelevant whether Mason knew, specifically, that she was legally ineligible to vote?
- Does the Help America Vote Act foreclose an interpretation of Texas’ “illegal voting” law as criminalizing the submission of good-faith provisional ballots?
- Does Texas’ “illegal voting” statute actually mean that submitting a provisional ballot that is later rejected counts as voting?
At the time this fact check was published, Mason’s appeal was still before the Court of Criminal Appeals, and awaiting adjudication.
The Differences Between Bartman and Mason’s Cases
Clearly, Mason’s punishment — five years in prison — was more severe than Bartman’s — five years’ probation. Several possible reasons exist for those disparate outcomes, but from the outset, it should be noted that we have found no evidence to suggest that the difference in the race of the two defendants played a role. Similarly, evidence is lacking to indicate that other differences, such as gender — Bartman is male and Mason is female — could have had an effect.
On the surface, Mason’s more severe punishment appears all the more difficult to explain, given that, as the meme points out, her actions appear to have been the result of a genuine lack of awareness about her eligibility to vote, and involved what appears to have been a good-faith provisional ballot, whereas Bartman went out of his way to fraudulently apply for, and submit, a mail-in ballot on behalf of his mother, whom he knew was dead.
However, two other important differences existed between the cases: how the offenses are graded and the sentencing guidelines in place in each state.
Bartman was charged with two counts of perjury, which is a third-degree felony, and one count of unlawful voting, which is a first-degree misdemeanor. In Pennsylvania, sentences are determined by reference to a somewhat complicated matrix which calculates a sentence range based on two primary considerations: the “Offense Gravity Score” and the “Prior Record Score.”
Since perjury is listed in the guidelines as a third-degree felony, that yields an Offense Gravity Score of 5. Since Bartman had no prior convictions, his Prior Record Score was 0. When those factors are entered into the matrix, it yields a recommended punishment of “Restorative Sanctions” (RS), or in other words, probation:
In deciding to impose the sentences concurrently, rather than consecutively, Judge Pagano appears to have taken into account other mitigating factors, including the fact that Bartman expressed contrition for his actions and pleaded guilty.
By contrast, Mason was charged with illegal voting, which is a second-degree felony in Texas. So right off the bat, the offense of which she was convicted is graded higher than Bartman’s offenses. Furthermore, unlike in Pennsylvania, the relevant sentencing guidelines in Texas did not allow for Mason to be given probation instead of a prison sentence. In the relevant statute, the sentencing range for a second-degree felony is set out as between two and 20 years in prison.
It’s possible that Mason also fell foul of Texas’ repeat offender statute and received an increased sentence due to her previous felony conviction for tax fraud. Section 12.42 of the Texas Penal Code states that:
If it is shown on the trial of a felony of the second degree that the defendant has previously been finally convicted of a felony…,on conviction the defendant shall be punished for a felony of the first degree.
If that was the case for Mason, the judge would have had even less discretion to give her a lower sentence, since the statutory sentencing range for a first-degree felony in Texas is between five years and life in prison (as opposed to between two and 20 years, for a second-degree felony).
Snopes asked Tarrant County District Court for any documents, related to the case against Mason, in which the judge set out his reasoning for the five-year prison sentence. We did not receive any such documents, so we can’t say for sure whether the judge had to choose from within a first-degree or second-degree felony sentencing range. If Mason’s prior felony conviction triggered the sentencing enhancement explained above, then that would represent a third significant difference between her case, and that of Bartman, who had no prior criminal convictions.