(CN) — The Eighth Circuit Court of Appeals heard a Voting Rights Act case on Thursday concerning the legality of an Arkansas voter assistance provision prohibiting anyone other than an election official from assisting more than six voters per election.
The state claims the provision was passed in 2009 as part of a “commonsense” package of bills designed to make voting easier and cheating more difficult. The six-voter limit was designed to protect against abuse by “would-be professional voter assistants” who are interested in influencing the outcome of an election.
In 2022, a lower court enjoined the state from enforcing the provision after agreeing with a group of Hispanic plaintiffs that it violated Section 208 of the VRA. Section 208 states that all individuals who need assistance when voting can receive that assistance from a person of their choice.
A nonprofit group called Arkansas United claimed the law prevented it from fulfilling its mission of assisting voters with limited English proficiency in translating and understanding their ballots at polling places. But Arkansas Solicitor General Autumn Hamit Patterson told the appellate panel on Thursday that Section 208 does not contain its own cause of action, and the lower court applied the wrong legal standard when enjoining the state.
“Arkansas’ provision helps ensure that voters who require assistance to vote retain some privacy in their votes and are able to cast their ballot without undue influence, intimidation or fraud affecting their ability to vote,” Patterson argued. She said the Eighth Circuit has previously decided — in Arkansas State Conference v. Arkansas Board of Apportionment — that voters may not sue to protect their voting rights under Section 208.
“Section 208 does not give the voter the right to choose anyone without limitation,” she said. “Indeed, it provides some examples of limitations on who may provide assistance.”
The panel asked Patterson to discuss the merits of the lower court’s reliance on Ex parte Young, a legal exception that allows individuals to sue state officials in their individual capacities for injunctive relief when those officials are enforcing unconstitutional state laws. Patterson said the plaintiffs never made claims under Ex parte Young, and even if they had, the exception also fails to create a cause of action.
“The case should be dismissed,” she said. “Elections are an area of traditional state authority.”
On the other hand, Arkansas United attorney Susana Sandoval Vargas said the panel was faced with a “straightforward preemption case.”
“The Arkansas six-voter limit prevents voters from choosing and receiving help from an assistor who has already assisted other voters in an election when no such restriction exists under Section 208,” she argued. “Nothing in the text of Section 208 invites the state to add categories of prohibited assistors beyond those enumerated by Congress and the statute.”
She defended the lower court’s Ex parte Young exception, arguing it properly applied the supremacy clause and equitable relief to find that the Arkansas voter assistance provision is preempted by Section 208. Further, she said the Supreme Court has held that the ability to bring suits under the supremacy clause relies on a judge-made equitable remedy, and Ex parte Young provides the district court with the power to hear such suits.
Similarly, Vargas said the Arkansas State Conference case cited by Patterson does not foreclose the plaintiffs’ constitutional claim because it does not speak to the plaintiff’s ability to sue under the supremacy clause or under Ex parte Young.
“The state’s additional restrictions on whom Congress permits to provide voter assistance frustrates and stands as an obstacle to Congress’ purpose to ensure that voters with disabilities and voters with an inability to read or write can receive assistance,” she argued. “Congress has carefully limited the universe of assistors, and Congress has had the opportunity and has not done so.”
On rebuttal, Patterson said the plaintiffs could not cite any examples of anyone who has been denied assistance and underscored that they had not argued claims under Ex parte Young.
“The plaintiffs’ Voting Rights Act and supremacy clause claims are really two sides of the same coin,” she concluded. “Laws have to be read as a whole, in context with other provisions in place, and the plaintiffs even concede that there are some additional limitations on who can provide assistance outside of Section 208. I ask that you reverse.”
The panel included U.S. Circuit Judges James B. Loken, a George H.W. Bush appointee, Raymond W. Gruender, a George W. Bush appointee, and L. Steven Grasz, a Donald Trump appointee. They did not indicate when they may rule on the case.
