(CN) - Parties on opposite sides of Texas' strict new election access law appeared before a three-judge panel of the Fifth Circuit Court of Appeals on Wednesday, attempting to resolve claims the measure violates Section 208 of the Voting Rights Act. After presiding over a six-week bench trial in October 2024, U.S. District Judge Xavier Rodriguez determined that it does, declaring that Texas' restrictions on voting assistance unlawfully narrow voters' federally protected rights. As a result, several provisions of Senate Bill 1 were struck down or enjoined.

On Wednesday, three attorneys for state defendants argued the lower court wrongfully struck down the rules by misinterpreting Section 208, which they say permits reasonable, generally applicable regulations and does not preempt Texas' safeguards against fraud, coercion and abuse in the voting process. Representing the Texas attorney general's office and secretary of state, Assistant Attorney General William Francis Cole said Section 208 ensures a "simple promise."

"Blind, illiterate and disabled voters may enjoy voting assistance from an assistor of their choice, not one provided for them by the government, and not any person under any circumstances at any time," Cole said. 

He added the district court's order transforms that promise "into a blunt object that would invalidate even the most modest, neutral or procedural of election laws."

Cole's primary arguments included that the plaintiffs lack standing because of the absence of specific injuries, while their claims had no apparent traceability to his clients. Neither the Texas attorney general nor the secretary of state would prosecute crimes under SB1. Instead, prosecutions would be handled by district attorneys, Cole explained.  

The plaintiffs had cited "fear of prosecution" as an injury, but Cole said that was speculative, and there have been no prosecutions or investigations under SB1, which was passed by a partisan vote in 2021. Cole also argued that the plaintiff organizations lack standing because they cannot vote. 

Attorney John Matthew Gore, for intervenors including the Republican National Committee, added that the plaintiffs failed to demonstrate SB1 was preempted by Section 208.

"There's no exceedingly clear language in section 208 that Congress sought to displace the federal-state balance of authority when it comes to generally applicable assistance regulations. Instead, Congress enacted section 208 for a critical but valid purpose, to regulate who may give voters assistance." 

Gore said the state law does not restrict who may be chosen as an assistor. Instead, it only places "generally applicable regulations" on how those individuals may provide assistance. 

"The [lower] court's erroneous conclusion otherwise would imperil broad swaths of commonsense election laws all across the country, in direct contradiction of Congress' intent and states' authority to set the rules of elections," he said. 

A third attorney for the defendants, Eric J.R. Nichols, said the Harris County District Attorney should be dismissed from the case, citing a lack of jurisdiction. 

Representing a group of voting rights organizations, attorney Nina Perales defended the lower court's order, arguing certain provisions of SB1, such as the assistor oath and disclosure requirements, unlawfully obstruct the rights provided in Section 208. Perales said such provisions deter assistors - particularly from community service organizations - and create unnecessary obstacles.

Perales said the defendants have admitted that the law will criminalize otherwise harmless acts of kindness or minimal incentives for helping people vote. Hypothetically, it would be a felony for an elderly voter to receive assistance to mail or complete their ballot from a social services organization they know and trust. If a blind voter buys lunch for a friend in exchange for help completing their mail ballot, both could be prosecuted. If a disabled voter pays the high schooler who lives next door $20 to help complete or mail or ballot, they could both be charged. 

"Section 208 is a short and specific federal statute," Perales said. "Blind, disabled and low-literate voters have the right to vote with the assistance of a person of their choice."

She added the state cannot "layer on" categories of individuals who impair the voters' choice, and the requirement that assistors take an oath "conditions your ability to exercise your right under Section 208 on making a representation that you're eligible, whether the voter wants to make that representation or not."

Victor Genicin, another attorney for the plaintiffs, said SB1's provisions work together to obstruct Section 208 by disfavoring assisters from community service organizations, which reduces the available pool of assisters. He noted that the district court found these provisions deter people who previously assisted voters from continuing to do so and discourage voters from seeking help from their preferred assistors.

"The challenged provisions deter people who assisted voters in the past ... and chill voters who need assistance from obtaining help from their assistors of choice," Genecin said. 

Finally, attorney Zachary Dolling attacked a provision of SB1 that bans compensated mail voting assistance, arguing the AG's collaboration with local prosecutors and the DA's refusal to disavow prosecution constituted a credible threat of prosecution, even without prior prosecutions. Dolling highlighted that the statute acts as a deterrent and that the DA's refusal to disavow prosecution increases the threat. 

The court discussed the need for an injunction against the state to bind local prosecutors, emphasizing that local prosecutors represent the state when enforcing state laws.

The panel included U.S. Circuit Judges Jerry E. Smith, James E. Graves Jr. and Stuart Kyle Duncan, appointees of presidents Reagan, Obama and Trump, respectively. In rebuttal, Judge Smith said as a practical matter, the organizational plaintiffs are being restrained and SB1 does place additional restraints upon them.

Cole suggested the plaintiff organizations may have First Amendment claims, but not VRA claims. He said the provisions do not prevent "get out the vote" organizations from providing voter assistance. Instead, it prevents a "transactional exchange."

"If you're specifically paid to go do the voter assistance, that's what it's targeting, not just anybody," he said. 

The panel did not indicate when it would rule.

Source: Courthouse News Service