From the Arkansas Advocate:
The U.S. Supreme Court declined Monday to review Arkansas’ limits on assistance for voters at the polls, a decision that advocates say further erodes the landmark 1965 law preventing discrimination against racial minorities at the ballot box.
The decision leaves in place last July’s ruling by an 8th U.S. Circuit Court of Appeals panel that individuals and private organizations can’t sue to enforce Section 208 of the Voting Rights Act, which allows voters with a disability or the inability to read or write to receive assistance from a person of their choice.
Arkansas United, an immigrant advocacy group that has used translators to assist limited-English voters at the polls, sued state election officials in 2020 over an Arkansas law prohibiting anyone other than poll workers from helping more than six voters cast ballots.
Arkansas United partnered with the Mexican American Legal Defense and Educational Fund on the lawsuit, which argues the state law violates the federal Voting Rights Act. MALDEF President and General Counsel Thomas A. Saenz said Monday’s action combined with previous court decisions leaves no voting rights enforcement in the 8th Circuit, which is “astonishing” because every other circuit in the country allows private enforcement of the law.
“The impact is there’s no voting rights enforcement because this administration is hostile to voting rights, so they won’t be doing any enforcement of [the] Voting Rights Act,” Saenz said.
The Arkansas Secretary of State’s office, a defendant in the case, said in a statement that Arkansas law permits poll workers to help an unlimited number of individuals who need assistance voting.
“This law is a common sense measure,” spokesperson Samantha Boyd said. “One individual who is not a poll worker helping more than six different people vote places an unnecessary risk of undue influence in the system, and we support the Supreme Court’s decision.”
Megan Bailey, communications director for the American Civil Liberties Union of Arkansas, said the court’s decision makes it more difficult for people and organizations to protect ballot access when governments fail to do so.
“Limiting who can bring these cases creates additional barriers for voters, particularly voters with disabilities, voters with limited English proficiency, and communities that have historically faced discrimination,” Bailey said.
Monday’s decision comes just two months after the Supreme Court curtailed the consideration of race when drawing legislative maps. Advocates argued the ruling weakens another part of the Voting Right Act and threatens minority representation in legislative districts.
The ruling came as a handful of states took the unusual step of redistricting prior to the decennial census to protect Republican control of the House in this year’s midterm elections.
Matt Barreto, faculty director of the UCLA Voting Rights Project, said the April ruling makes it extremely difficult to challenge state plans that dilute the votes of Black and Latino residents because the courts have “allowed states to hide behind partisan gerrymandering claims.”
While the decision was “very devastating” to congressional redistricting claims under the Voting Rights Act, Barreto said he believes the rest of the law remains a powerful tool for local, nonpartisan cases.
“Theoretically, you should still be able to use the Voting Rights Act, but that will be tested when cases go forward,” he said.
The courts have been chipping away at the Voting Rights Act for more than a decade, but it’s not fully struck down, Barreto said. And the Supreme Court could overturn the 8th Circuit’s decision on who can sue under the Voting Rights Act thanks to a North Dakota case that’s currently being litigated, he said.
The Supreme Court last month ordered the 8th Circuit to reconsider a North Dakota redistricting case after the Turtle Mountain Band of Chippewa, Spirit Lake Nation and three tribal citizens asked the high court to answer whether private citizens can bring cases under Section 2 of the Voting Rights Act.
The 8th Circuit previously ruled the tribes couldn’t sue because only the U.S. Department of Justice can enforce Section 2. The 8th Circuit is the only federal appeals court to make this finding.
Decisions in the 8th Circuit only apply to Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota. Ten of the 11 active judges on the 8th U.S. Circuit Court of Appeals were appointed by Republican presidents.
If the Department of Justice is the sole entity that can bring a lawsuit, then its enforcement of the Voting Rights Act depends on what party controls the White House, Barreto argued.
“This is why there should be a private right of action — that it should not be beholden to whether or not the political ideology of the U.S. Attorney’s office agrees or disagrees,” he said.
Barreto said he expects the North Dakota case will eventually go to the Supreme Court. If the justices decide individuals do have a private right of action to sue under the Voting Rights Act, that could affect the Arkansas voter assistance case, he said.
Legal scholars are debating if Monday’s decision to not consider the Arkansas case is terrible or if the high court is simply waiting to take up the North Dakota case, Barreto said.
“In the short term it will have effects that if you were hoping to get relief, now you can’t,” he said. “But it could be that in six months or a year the Supreme Court weighs in on the Turtle Mountain case and there’s some other outcome.”
Arkansas Attorney General Tim Griffin on Tuesday said the Supreme Court declining to review Arkansas’ voter assistance lawsuit is a victory for the state.
“I applaud the Court for following the plain meaning of the language in the Voting Rights Act,” Griffin said. “We will continue to enforce our commonsense laws that promote election security around assistance in marking ballots.”
