The U.S. 5th Circuit Court of Appeals will hear arguments Thursday over an obscure provision in the Texas Election Code that critics say makes it harder for Texans not proficient in English to get assistance while voting.
Amid last-minute efforts to overhaul the state’s voter identification law in light of an ongoing legal fight, the Texas Legislature gaveled out without addressing another embattled election law that’s now moving forward in federal court.
The U.S. 5th Circuit Court of Appeals on Thursday will take up a legal challenge to an obscure provision in the Texas Election Code that requires interpreters helping someone cast a ballot to also be registered to vote in the same county in which they are providing help.
That state law has been on hold since last year after a federal district judge ruled it violated the federal Voting Rights Act under which any voter who needs assistance because of visual impairments, disabilities or literacy skills can be helped in casting a ballot by the person of their choice, as long as it’s not their employer or a union leader.
“There’s nothing that’s being imposed. The state just needs to get out of the way,” said Jerry Vattamala, director of the Asian American Legal Defense and Education Fund’s democracy program.
AALDEF brought the lawsuit against the voting law on behalf of the Greater Houston chapter of the Organization of Chinese Americans and the late Mallika Das, a Williamson County resident who was unable to get help from her son to cast her ballot in 2014.
A U.S. citizen born in India, Das had brought her son, Saurabh, to help her vote. She spoke Bengali, an Asian dialect, and her limited English proficiency had made it difficult in the past. But when Saurabh told poll workers he intended to interpret the ballot for his mother, an election official determined he didn’t meet the state’s voter registration requirements because he was registered to vote in neighboring Travis County.
Das’ voting dilemma, which jumpstarted the legal challenge, illustrates the complexities behind Texas’ election requirements that language-minority voters are left to navigate.
One provision of state election code allows voters to select an “interpreter” to help them communicate with an election officer and “accompany the voter to the voting station for the purpose of translating the ballot to the voter.” A separate provision governs “assistors” and says voters can receive help reading or marking a ballot and states that assistance “occurs while the person is in the presence of the voter’s ballot.”
The interpreter, unlike an assistor, must be registered to vote in the same county.
The state has argued the interpreter provision of state law is constitutional and “supplemental” to the minimum requirements set forth by the Voting Rights Act.
Attorneys for the state have also acknowledged that Williamson County erroneously “conflated the two provisions.” Had Saurabh said he was assisting his mother — not interpreting the English ballot for her — he would have been allowed to join her in the voting booth to help her cast a proper vote, state attorneys have conceded.
That distinction “arbitrarily” restricts voters with limited English proficiency and is “illustrative” of “why particular words matter,” U.S. District Judge Robert Pitman said in an August ruling against the state. And the Texas interpreter restrictions “flatly contradict” the Voting Rights Act, he added.
After Pitman scolded the state, two Democratic lawmakers sought to simplify the issue earlier this year by nixing the interpreter section of state law altogether — a proposal that picked up endorsements from the Texas Association of Election Administrators, the League of Women Voters, MALDEF and the Texas Democratic Party.
But their peers showed little appetite to address the issue.
“I don’t see how we could in legislative action place a criteria that would limit it more than a constitutional standard,” said state Sen. Sylvia Garcia, D-Houston, who filed one of the measures during this year’s regular legislative session that would’ve only left in place the assistor provision. “I just don’t think the state is serious about the right to vote or access to the election box. We just seem to bend over backwards to place barriers instead of working to increase voter turnout.”
Her legislation to bring the state in line with federal law languished in the Senate State Affairs Committee after colleagues raised concerns that it would allow voters to obtain help at the polls from noncitizens, Garcia said. The voter registration requirement by default requires the interpreter to be a U.S. citizen and 18 years old.
But sometimes voters ask their minor children to help them cast their ballots, Democratic state Rep. Ramon Romero of Fort Worth told the House Elections Committee during an April hearing. His proposal was similar to Garcia’s and also did not advance out of committee.
Despite the intricacies between interpreters and assistors, the case could ultimately come down to a question of standing if the state has its way.
The Texas Attorney General’s office, which is representing the state in the lawsuit, declined to comment on pending litigation. But in a brief filed with the 5th Circuit, state attorneys argued that the lower court erred in its ruling by allowing the lawsuit to move forward despite Das’ death before there was a judgment in the lower court.
The remaining plaintiffs in the case — the Greater Houston chapter of the Organization of Chinese Americans — “rode the coattails” of the former lead plaintiff, Das, “by arguing that her alleged injuries, accrued in Williamson County, may befall its members in Harris County,” the AG’s office wrote in its filing.
They also contend that the state shouldn’t be a party in the case because local authorities — and not the Secretary of State whose office oversees elections — implemented the interpreter provisions.
The New Orleans-based appellate court will take up the case in its morning session on Thursday.
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