Texas’ attorney general, Greg Abbott, says he needs the state’s stalled voter identification mandate to ward off fraud at the polls.
When the U.S. Justice Department rejected the Texas voter ID law March 12, 2012, preventing it from taking effect, Abbott issued a press release saying: "Since 2002 ... election fraud investigations by the Texas Attorney General's Office have resulted in 50 convictions."
We asked Abbott’s office for backup on his statement, and spokesman Jerry Strickland sent a list of 57 election fraud prosecutions, as well as documents showing how the cases were resolved.
We also asked how many election fraud cases had been referred to the attorney general’s office since 2002. Abbott’s list shows 311 accusations of election fraud spanning 2002-12. The 57 investigations we’re checking represent only those cases that were both prosecuted and resolved.
Six of the prosecutions ended in dismissal or acquittal, Strickland told us by telephone, leaving 51 prosecutions that resulted in convictions.
By our analysis, three-quarters of the cases involved election code violations classified as "illegal voting" -- which includes acts such as voting more than once, impersonating a voter or voting despite ineligibility -- and "method of returning marked ballot," often meaning the defendant was accused of having someone else’s ballot.
Only two cases are described as "voter impersonation" on the list. Whether voter impersonation is a standing problem has been a hot button in the state’s legislative debates over proposed voter ID laws in 2005, 2007, 2009 and 2011; Austin American-Statesman news stories say legislators mostly split along party lines, with Democrats claiming impersonation is rare and Republicans claiming the problem is significant. Abbott drew criticism in 2006 for creating a special unit to target voter fraud that by mid-2008 had yielded, according to a May 19, 2008, Associated Press news story, only 26 prosecutions.
Looking at all 57 election fraud prosecutions from 2002 to 2012, we tallied up the resolutions (some had multiple outcomes, when charges were pursued as separate cases):
- Specified as convictions: 26
- Guilty plea resulting in conviction: 2
- Deferred adjudication: 19
- Pre-trial diversion: 10
- Acquitted: 2
- Dismissed: 4
For clarification of the middle two categories, we turned to the Texas District and County Attorneys Association, an Austin-based nonprofit that provides continuing legal education and technical assistance to prosecutors.
The group’s executive director, Rob Kepple, told us in an interview that although deferred adjudication falls short of a conviction, he would not consider it a stretch to classify it with the convictions.
In deferred adjudication, Kepple said, the defendant pleads guilty, and then "the court defers any finding of guilt and places you on probation or community supervision." If the terms are met, the case is dismissed -- but it remains on the defendant’s record, he said.
This means it can carry the weight of a conviction in later cases, Kepple said. For example, if a person is given deferred adjudication in a domestic violence case and then later is charged again with domestic violence, he said, the adjudication counts as the first offense, making the new charge a second offense.
But a pre-trial diversion is not a conviction, he said. There’s not even necessarily a guilty plea or admission of guilt.
"Basically, they sat down with the defendant and say, ‘Here’s what’s going to happen. You agree not to mess up for 12 months and we’ll just dismiss the case.’ So in no common parlance can this be considered a conviction," Kepple said. The case can even be expunged from the defendant’s record, he said.
"There’s no way you can mistake a pre-trial diversion for a conviction, I don’t think."
We also consulted the Texas Criminal Defense Lawyers Association, a group that provides support and education for its members.
Like Kepple, the association’s capital assistance attorney, Rick Wardroup, pointed out via email that the final outcome of a pre-trial diversion or deferred adjudication depends on whether the defendant meets the terms of their probation or supervision.
Abbott spokeswoman Lauren Bean told us by telephone that the attorney general counts pre-trial diversions as a successful outcome for two main reasons: First, although the defendants do not plead guilty, such agreements are made in order to avoid an expected criminal trial, and second, because the defendant receives a punishment.
After we shared our findings with her, Bean sent us another bit of backup: a section of Texas local government code on court costs that classes deferred adjudication and pre-trial diversions with convictions.
University of Texas law school assistant professor Jennifer Laurin told us via email that clauses like this in state laws indicate the reverse -- they illustrate that these two outcomes are not normally considered convictions. And Kepple said, "That section is the definition of ‘conviction’ for the purpose of collecting fines and fees. But in common parlance, a deferred prosecution and deferred adjudications simply are not criminal convictions."
Abbott’s statement refers to 50 "convictions," which he might better have termed "satisfactory results."
It looks to us like 60 percent of his cited "convictions" were not convictions.
We recognize, though, that our analysis presumes that all the non-convicted defendants fulfilled or will fulfill all terms of the agreements they made to avoid going to trial. That may not be so.
On balance, we rate Abbott’s claim Half True.