Why is Texas AG Paxton prosecuting Hervis Rogers?

Hervis Earl Rogers is a 62-year-old Black man who lives in Houston. Believe it or not, Rogers waited in line for more than six hours to vote in last year’s presidential election. CNN interviewed him after he voted. He was as an example of countless citizens who waited for hours to exercise his franchise.

“I figured like it was my duty,” Rogers said as he exited his polling place. Like millions of Americans, Rogers was moved by actually voting — participating in the cosmic adventure of America’s democracy.

Exercising power vested in him by the Texas Election Code, Texas Attorney General Ken Paxton obtained an indictment against Rogers on two counts of illegal voting. The New York Times reported that Rogers was booked into the Montgomery County Jail and held on a bond in the amount of $100,000.

A vital question in Rogers’ case is whether or not he knew he was not eligible to vote. Texas law requires that to be guilty of a criminal offense, an individual must have a “culpable mental state.” Simply put, Rogers must have actually known that he was ineligible to vote, or perhaps recklessly disregarded his status as a parolee. As a prosecutor, Paxton has the burden of proof to establish Rogers’ guilt beyond a reasonable doubt.

The AG is passionate about stamping out voter fraud. He sees it as a public menace.

“People will tell you there is no election fraud,” the AG told a throng of conservatives at the recent Conservative Political Action Conference (CPAC), reported the Fort Worth Star-Telegram.

“Let me just tell you right now, my office has 511 counts in court because of COVID waiting to be heard. We have another 386 that we’re investigating. If you add those together that’s more election fraud than my office has prosecuted since it started investigating election fraud years and years ago. So, do not believe the narrative, because in Texas we are going to fight election fraud.”

More than 11.3 million Texans voted in last year’s election. Approximately 5.9 million Texans voted for former President Donald Trump. President Biden received just under 5.6 million votes. The remaining votes were cast for third-party and write-in candidates.

Out of more than 11.3 million votes cast in last year’s presidential election, Paxton has brought cases against a fraction of 1% of Texas voters.

Back to Hervis Rogers. He’s a resident of Houston, which is in Harris County, who lives and votes in Houston, which is in Harris County. The county has approximately 4.7 million residents. Normally, Rogers would have been charged and prosecuted in Harris County, but Paxton invoked an arcane provision of the Texas Election Code that authorized him to charge Rogers in Montgomery County, because it is adjacent to Harris County.

Unlike Harris County, it is rural, with a population of 600,000. By charging Rogers in Montgomery County, Paxton engaged in what lawyers call “forum shopping.” He filed criminal charges in a county much more conservative than Harris County, but less ethnically diverse. This was done for the sole purpose of improving the odds of convicting Rogers and obtaining a harsh sentence.

Montgomery County’s population is made up of approximately 83.5% Caucasians, 4.3% Blacks and about 20.8% Hispanics. In contrast, the U.S. Census Bureau reported in 2010 that Harris County had 68.6% Caucasian residents, 20% Blacks and approximately 43.3% Hispanics in its population. Simply put, a contested trial in Harris County would afford Rogers a much higher likelihood of Blacks serving as jurors than in Montgomery County.

Last week, Erica Grieder of the Houston Chronicle wrote a column about the case. “Paxton’s office alleges Rogers was on probation for a 1995 burglary conviction when he voted in the March 2020 Democratic primary and the November 2008 general election.” The Chronicle previously reported that Rogers was released from prison in May 2004 after serving nine years of a 25-year sentence. His vote in the March 2020 Democratic primary “came less than four months before his parole was set to expire.”

As Grieder noted in the Chronicle, “It defies belief that someone would knowingly mischief the system, then turn around and brag about doing so on national television — especially if he lives in a state where leaders are known to prosecute such crimes with a seemingly malicious glee. Rogers, who is Black, now faces 25 years to life in prison if convicted.”

Texas’ 2020 presidential election was fair and attracted great voter interest. Former President Trump carried the state with a comfortable, albeit shrinking, margin.

This is really what the saga of Hervis Rogers is about. Texas is changing demographically. It is no longer bright red. Nor is it blue. Former Congressman Beto O’Rourke proved, in his 2018 challenge to Senator Ted Cruz in 2018, that a capable Democratic candidate can be competitive in a statewide political campaign in Texas.

The AG is a public servant. His office is a public trust. Prosecutors are not sworn to seek convictions. Their sworn ethical duty is to see that justice is done.

Deuteronomy imparts these words: “Justice, justice, thou shall pursue.” The great rabbis have taught that no word in the Torah is superfluous. Each individual word has meaning. Many rabbis teach that by repeating the word “justice” twice, the Torah is imparting an affirmative commandment. Attorney General Paxton’s office is a public trust. His prosecution of Hervis Rogers is not in keeping with his sacred mission.

A version of this editorial appeared in the July 22, 2021, issue of the Jewish Herald-Voice of Houston.

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