In the late summer of 2020, Bruce Bartman went to Pennsylvania’s voter registration website and signed up his mother and mother-in-law to vote. Both women were dead.
A few months later, Bartman, who is white, requested a mail-in ballot for his late mother and cast her vote for Donald Trump. Bartman was arrested that December and charged with perjury and unlawful voting. Months later, he pleaded guilty, admitted he made a “stupid mistake”, was sentenced to five years of probation and barred from serving on a jury or voting for four years.
“There’s not public benefit to him being incarcerated,” Jack Stollsteimer, the local district attorney said at the time. “This defendant from the beginning has accepted responsibility for his actions, and he has paid the price for them.”
When Bartman pleaded guilty, nearly 1,000 miles away, in Memphis, a Black Lives Matter activist named Pamela Moses was facing her own election-related criminal charges. A few years previously, Moses, who is Black, permanently lost the right to vote after committing a felony. But no one had actually removed Moses from the voter rolls or told her she couldn’t vote. And in 2019, when state officials began looking into her eligibility, a probation officer signed a certificate saying Moses had completed her sentence and was eligible to vote. So she applied to do so. Even though corrections officials conceded they made an error, Moses was indicted anyway.
Moses was convicted by a jury in November. In late January, she was sentenced to six years and one day in prison
Her sentence attracted widespread national scrutiny for its harshness – it is among the most severe for an election-related crime issued in recent memory. Following weeks of outcry and the introduction of new evidence revealed by the Guardian, a judge ordered a new trial for Moses last week.
Despite that unusual reversal, the case also underscored what many experts see as a double standard in the US criminal justice system: white people face relatively light punishment for intentional cases of fraud, while Black people face tougher punishments for unintentional voting errors.
No comprehensive data exists comparing voter fraud prosecutions based on race. It’s also difficult to compare prosecutions in different jurisdictions because a criminal sentence depends on many factors, including the discretion of the local prosecutor, state laws, the facts of the offense, and the defendant’s criminal history. But the experts say the cases that have come to prominence ring alarm bells.
“This [Moses] conviction has resonated across the country, the world, and it certainly has resonated in this community. I would suggest that it certainly resonated with Black women who might wonder if they’re eligible to vote in the coming elections,” said Josh Spickler, the executive director of Just City, a criminal justice non-profit in Memphis. “It is what you think it is. It is voter suppression. It is a message to consider whether you should vote or not.”
Moses’ case immediately attracted comparisons to the case of Crystal Mason, a Texas woman who was sentenced to five years in prison for voting while on federal supervised release – similar to probation – in 2016. Probation officials testified that they never told Mason she couldn’t vote, and her ballot was never counted, but a judge found her guilty of illegally voting anyway. An appeal is currently pending at Texas’s highest criminal court.
Last summer, Texas officials also arrested Hervis Rogers, who is Black, for voting while on probation for a felony. Rogers, who received national attention after waiting seven hours in line to vote in 2020, also says didn’t know he was ineligible. His case is currently pending and he could face years in prison.
“What we do see is that there’s a willingness to go after people who are making, at worst, innocent mistakes. That’s not what our justice system should be about,” said Thomas Buser-Clancy, a lawyer with the Texas chapter of the American Civil Liberties Union who is helping represent both Mason and Rogers.
These relatively long sentences stand out even more given several recent examples in which white defendants who committed acts of fraud received no prison time at all.
Last year, a 72-year old Republican voter in Pennsylvania was sentenced to probation after putting on sunglasses and trying to impersonate his son at the polls. In Arizona, a 64-year-old woman pleaded guilty to forging her deceased mother’s signature on a mail-in ballot; she was sentenced to probation and could face up to 90 days in jail when she is sentenced in March. In Nevada, a Republican who voted using his dead wife’s ballot and then lied about it pleaded guilty and was sentenced to probation.
And in 2018, about a month after Mason was sentenced, a white justice of the peace in the same county pleaded guilty to forging signatures to get on the ballot when he was running for office. He was sentenced to probation.
“You have Ms Mason’s case of what at worst is an innocent mistake … on the other hand you have someone who intentionally – you can’t innocently forge signatures, and they received probation,” said Buser-Clancy. “It’s the same county, same DA, very different results, when you would expect it to go the opposite way.”
In Texas, the prosecutor who handled Mason’s case defended the harsh sentence by noting that she offered her a plea deal with probation. “Our office offered Mason the option of probation in this case, which she refused. She chose to have a trial by judge, and the judge found beyond a reasonable doubt from the evidence that she knew she wasn’t eligible to vote and voted anyway,” she said in 2019.
Amy Weirich, the district attorney in Memphis who prosecuted Moses, also defended her handling of the case in part by noting that she offered Moses a plea deal that did not involve incarceration.
“I gave her a chance to plead to a misdemeanor with no prison time,” Weirich said in a statement. “She requested a jury trial instead. She set this unfortunate result in motion and a jury of her peers heard the evidence and convicted her.”
“It’s a fact for various reasons that people who go to trial generally get harsher sentences,” said Daniel Richman, a law professor at Columbia University who has written extensively about prosecutors. “Sometimes you hear arguments, and there’s some substance to them, that the prosecution is seeking to punish the defendant for going to trial, and I’m sure that happens. But another thing that always happens is the judge knows the case a lot better. And generally, when a judge knows a case a lot better, the defendant is worse off.”
But the decision to reject a plea and go to trial, a constitutional right in the US, shouldn’t necessarily lead to a harsher sentence, experts say. For someone who already has a criminal record like Mason or Moses, accepting a plea deal for a new crime can have severe consequences, such as the revocation of probation or losing a job.
“Why is it we have a system where a prosecutor can basically say to somebody, you plead, we’ll extend your probation. If you don’t plead, you’re facing six years. Does that sound like the kind of system we want?” said Bennett Capers, a former federal prosecutor who now teaches law at Fordham University. “If [Moses] had taken the plea, nobody would have known about this case.”
Prosecutors have also defended the sentences for Moses and Mason by pointing to their prior criminal records. But in the US, having a criminal conviction means navigating an enormously confusing set of rules in order to regain one’s vote, and such rules vary widely by state. Those confusing voting rules are more likely to affect Black Americans like Moses and Mason.
Over one-fifth of Black people of voting age in Moses’ home state of Tennessee – nearly 175,000 people – can’t vote because of a felony conviction, according to an estimate by The Sentencing Project, a criminal justice non-profit. There is a stark racial disparity. Around 17% of Tennessee’s population is Black, but Black people account for around 40% of those disenfranchised because of a felony conviction in the state. Nationally, around 2.3% of the voting age population can’t vote because of a felony conviction. But it is 6.3% of Black Americans of voting age.
“This is much more likely to have a disparate effect on people who are Black and brown. People who are Black and Brown are more likely to have a conviction,” Capers said.
The Moses case “sort of sends a message that ‘you know, by the way, don’t think about going to the polls’”, Capers said.
