Kyuwon Shim, Michelle David, and Susana Lorenzo-Giguere

Volume 26.2 (download PDF)

Abstract

Under Section 208 of the Voting Rights Act (“VRA”), any voter who is blind, disabled, or unable to read or write is entitled to assistance to vote by a person of the voter’s choice. Section 208 guarantees that such voter may choose a person they trust to assist them in navigating the voting process and cast a ballot, with only two limitations: To prevent financial influence on the voter’s ballot choices, the assistor cannot be the voter’s employer or union representative. In Texas, this law protects millions of limited-English proficient (“LEP”), disabled, and illiterate citizens. In 2015, the Asian American Legal Defense and Education Fund (“AALDEF”) filed suit against Texas under Section 208 of the VRA, challenging the state’s voter assistance laws. These laws prohibited interpreters from providing voter assistance if they were not registered to vote in the same county as the voter needing assistance. The laws also limited voter assistance solely to marking and reading the ballot; this limitation prohibited assistors from answering clarifying questions about the ballot or otherwise providing basic information about the voting process as a whole, information upon which many Asian Americans and voters who are LEP, disabled, or illiterate relied.

In 2017, the Fifth Circuit ruled on Texas’s appeal of AALDEF’s successful 2015 Section 208 challenge to Texas’s voter assistance laws. Preempting Texas’s county residence requirement for voter assistance, the Fifth Circuit also rejected Texas’s narrow interpretation that Section 208 assistance was only permissible for marking and reading the ballot. On remand, the district court permanently enjoined Texas from enforcing its voter assistance laws, among other forms of relief, that limited assistance to merely marking and reading the ballot. Three years later, in the wake of the 2020 election, Texas legislators enacted another broad set of voting restrictions through Senate Bill 1 (“S.B. 1”). Brazenly, S.B. 1 required assistors to take an oath limiting their assistance to merely marking and reading the ballot and used identical language from the Texas Election Code that the district court had enjoined in 2018. This Article delves into AALDEF’s 2022 success modifying the 2018 permanent injunction to strike down S.B. 1’s voter assistance restriction.