FAYETTEVILLE, ARK. – A Latino civil rights group is seeking an en banc review by the U.S. Court of Appeals for the Eighth Circuit in a challenge to an Arkansas law that places a limit on who may assist voters at the polls, including those who are not proficient in English, according to papers filed last week.
MALDEF (Mexican American Legal Defense and Educational Fund) and attorney Lawrence Walker, filed the request on behalf of Arkansas United, an immigrant rights group that works on get-out-the-vote efforts among naturalized citizens. At issue is a 2020 lawsuit challenging a portion of the Arkansas election code that limits to six the number of voters one person can assist as preempted by Section 208 of the federal Voting Rights Act (VRA). In their challenge to the law, attorneys argued the limit would hamstring the group’s efforts to help voters who need language assistance to cast a ballot and injure the organization by subjecting its employees, including its executive director, Mireya Reith, to criminal prosecution and fines if they assist more than six voters.
In 2022, a U.S. District Court ruled that Arkansas six-voter limit is preempted by the federal VRA. However, in July, a three-judge panel of the Eighth Circuit overturned the ruling, citing a 2023 appellate court decision that held that neither organizations nor individuals have the right to sue to enforce the VRA. MALDEF attorneys are requesting that the full 11-judge panel of the Eighth Circuit review that decision because the three-judge panel did not reach the merits of the central preemption claim.
“The panel failed to address the availability of a Supremacy Clause claim to ensure that states are not permitted to undermine federal law by imposing arbitrary, criminal penalties on those who simply assist eligible voters to cast a ballot,” said Thomas A. Saenz, MALDEF president and general counsel. “Federal law expressly protects voter assistance, and that should not be rendered an empty promise through an unnecessary closing of the court to civil-rights litigation.”
In its nine-page ruling, the three-judge panel adopted the same reasoning used in a challenge to Arkansas’ congressional maps called Arkansas State Conference NAACP v. Arkansas Board of Apportionment, in which the court held that there is no private right of action to challenge Arkansas’ congressional maps under Section 2 of the VRA. In the more recent opinion, the appellate court concluded that Arkansas United also did not have the right to challenge the state’s election code as a violation of the VRA, even though Arkansas United filed its claim under a different section of the federal voting law.
“It is crucial for private parties to have the ability to enforce the federal Voting Rights Act—as they have been able to for decades. This is especially true for limited English proficient voters who may face barriers to casting their ballot through arbitrary restrictions on that assistance, like the Arkansas’ six-voter limit that imposes criminal penalties on individuals that provide that assistance,” said Susana Sandoval Vargas, MALDEF Midwest regional counsel. “The guarantees of Section 208 are essential to ensure that all voters can exercise their right to vote.”
In their petition for a rehearing, attorneys argued that the panel failed to address the district court’s holding that plaintiffs properly brought their suit under a 1908 Supreme Court ruling that provides private individuals who are subject to criminal penalties the right to sue state officials in federal court when those officials are enforcing unconstitutional laws. The Arkansas law includes fines and criminal penalties for anyone assisting more than six voters to cast a ballot.
Attorneys also pointed out that the panel’s decision conflicts with other court rulings on Section 208 and private right of action The panel’s failure to consider Supreme Court precedent, as well as the fact that Congress has never amended the VRA to prevent a private right of action, warrants rehearing en banc.
Read the petition HERE.
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