Welcome to The Ballot Bulletin, where we track developments in election policy at the federal, state, and local levels. In this month’s issue:
- Federal court rules that Arkansas law limiting voter assistance violates Voting Rights Act
- California enacts four election administration bills
- Legislation update: Legislation activity in August 2022
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Federal court rules that Arkansas law imposing limits on voter assistance violates Voting Rights Act
On August 19, Judge Timothy Brooks, of the U.S. District Court for the Western District of Arkansas, ruled that an Arkansas law imposing a six-person limit on individuals assisting voters violated the federal Voting Rights Act. Brooks barred state and local officials from enforcing the six-person limit.
The law in question
Arkansas Code § 7-5-310 sets out rules related to privacy and voter assistance at polling places. Section 7-5-310(b)(4)(B) says “no person other than [a poll worker or an election official] shall assist more than six voters in marking and casting a ballot at an election.” Section 7-5-310(b)(5) directs poll workers “to make and maintain a list of the names and addresses of all persons assisting voters.”
Section 208 of the Voting Rights Act says “any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice, other than the voter’s employer or agent of the voter’s union.”
The parties to the lawsuit and their arguments
The plaintiffs are Arkansas United, a nonprofit whose self-described mission is “to ensure that immigrants in Arkansas have the information and resources they need to become full participants in the state’s economic, political, and social life,” and L. Mireya Reith, the organization’s founder and executive director. The defendants are Arkansas Secretary of State John Thurston (R), the Arkansas State Board of Election Commissioners, and the election officials from Benton, Sebastian, and Washington counties.
The plaintiffs, who offered voting assistance to limited-English proficient voters in the 2020 election, argued that Arkansas Code § 7-5-310 violated § 208 of the Voting Rights Act and should be struck down as a violation of the Supremacy Clause of the U.S. Constitution.
The defendants argued (a) § 208 of the Voting Rights Act does not extend to limited-English proficient voters, and (b), even if it does, the challenged statute does not conflict with § 208 of the Voting Rights Act.
How the court ruled
- Section 208 of the Voting Rights Act covers limited-English proficient voters. Brooks wrote, “The plain language of [Section 208] compels this interpretation. … The text does not require the voter’s ‘inability to read or write’ be based on a disability rather than lack of education. The plain text encompasses anyone who cannot read or write the language the voting materials are written in. This squarely includes [limited-English proficient] voters, who lack the ability to read their ballot because they cannot read the English language.”
- Section 208 of the Voting Rights Act preempts Arkansas’ six-voter limit: Brooks reasoned that Arkansas’ six-voter limit was “more restrictive” than § 208 of the Voting Rights Act, making “compliance with both … impossible.” Brooks concluded that the six-voter limit “impermissibly narrows the right guaranteed by Section 208.” Brooks also concluded that Arkansas’ six-voter limit “poses an obstacle to Congress’s clear purpose to allow the voter to decide who assists them at the polls.”
- Arkansas’ assistor-tracking provision is not preempted by Section 208 of the Voting Rights Act: Brooks said that Arkansas’ assistor-tracking provision was “the type of permissible state legislation contemplated” by Congress when it adopted the Voting Rights Act. Brooks said, “[W]hile the tracking requirement addresses the same topic as § 208, the two statutes can ‘operate harmoniously.’”
Accordingly, Brooks permanently barred state and local officials from enforcing the six-voter limit. However, the state’s assistor-tracking provision remains in effect.
The defendant’s procedural arguments as to the plaintiffs’ standing and defendants’ sovereign immunity, and the court’s response to those arguments, are omitted from this summary.
Brooks was nominated to the bench by Pres. Barack Obama (D) in 2013 and confirmed by the U.S. Senate in 2014
What comes next
Daniel J. Shults, the director of the State Board of Election Commissioners, said, “The purpose of the law in question is to prevent the systematic abuse of the voting assistance process. Having a uniform limitation on the number of voters a third party may assist prevents a bad actor from having unlimited access to voters in the voting booth while ensuring voter’s privacy is protected.”
A representative for Thurston told The New York Times “that [Thurston’s office] was also reviewing the decision and having discussions with the state attorney general’s office about possible next steps.”
California enacts four election administration bills
In August, California Gov. Gavin Newsom (D) signed four election-related bills into law.
- AB2037: This bill repeals an existing law that prohibits “an establishment where the primary purpose is the sale and dispensation of alcoholic beverages” from being used as a polling place.
- AB2577: This bill requires that the secretary of state establish uniform filing forms for candidates to use when filing their declarations of candidacy and nomination papers.
- AB2608: This bill makes the following changes to state law:
- Requires an elections official to provide a second vote-by-mail ballot to a voter’s representative upon receipt of a written request, signed by the voter under penalty of perjury, stating that the voter failed to receive, lost, or destroyed the original ballot.
- Requires the number of registered voters in the jurisdiction where an election is being held to be determined on the 88th day before the election.
- Makes administrative changes to the state’s military and overseas voter program..
- SB103: This bill requires that presidential electors and alternate electors pledge to cast their electoral ballots for the presidential and vice presidential candidates to whom they are pledged or who are the candidates of the political party that nominated them. This bill provides that any elector who violates this requirement would be automatically removed as an elector. This bill also requires the secretary of state to preside over the meeting of electors.
Legislation update: Legislation activity in August 2022
In August, legislatures in three states took action on 20 election bills.
The chart below identifies the 10 most common policy areas implicated by the bills that state lawmakers acted on in August. The number listed on the blue portion of each bar indicates the number of Democratic-sponsored bills dealing with the subject in question. The number listed on the red portion of the bar indicates the number of Republican-sponsored bills. The purple and gray portions of the bar indicate the number of bipartisan-sponsored bills and bills with unspecified sponsorship, respectively. Note that the total number of bills listed will not equal the total number of enacted bills because some bills deal with multiple subjects.
Democrats sponsored 15 of the 20 bills acted on in August (75%). Republicans sponsored 1 (5%). Bipartisan groups sponsored two (10%). For the remaining two (10%), partisan sponsorship was not specified.
This information comes from Ballotpedia’s Election Administration Legislation Tracker, which went live on June 29. This free and accessible online resource allows you to find easy-to-digest bill tags and summaries—written and curated by our election administration experts! We update our database and bill-tracking daily. Using our powerful interactive search function, you can zero in on more 2,500 bills (and counting) covering these topics:
- Absentee/mail-in voting and early voting policies
- Ballot access requirements for candidates, parties, and ballot initiatives
- Election dates and deadlines
- Election oversight protocols
- In-person voting procedures
- Post-election procedures (including counting, canvassing, and auditing policies)
- Voter ID
- Voter registration and eligibility
To make your search results more precise, we first place bills into one of 22 parent categories. We then apply to each bill one or more of the 88 tags we’ve developed.
If you don’t want to immerse yourself in the world of election legislation quite that often, we have a free, weekly digest that goes straight to your inbox and keeps you caught up on the week’s developments.