Certification Before Preemption: The Eleventh Circuit’s Federalism-First Approach to Alabama’s SB1 Absentee-Assistance Crimes

I. Introduction

In Alabama State Conference of the NAACP v. Attorney General, State of Alabama, No. 24‑13111 (11th Cir. 2025), the Eleventh Circuit confronted a clash between Alabama’s new anti–“ballot harvesting” statute (SB1) and Section 208 of the Voting Rights Act (“VRA”), 52 U.S.C. § 10508. SB1 criminalizes certain forms of assistance with absentee ballot applications, imposing severe penalties (including up to twenty years in prison), while Section 208 guarantees that blind, disabled, and illiterate voters may receive assistance from a person of their choice.

Several civic and disability-rights organizations—Greater Birmingham Ministries (GBM), the Alabama State Conference of the NAACP, the League of Women Voters of Alabama and its Education Fund (LWVAL), and the Alabama Disabilities Advocacy Program (ADAP)—challenged SB1. They argued that it conflicts with and is preempted by Section 208 insofar as it criminalizes the very assistance that Section 208 guarantees to vulnerable voters.

The district court agreed in substantial part and preliminarily enjoined enforcement of SB1’s core absentee-application assistance restrictions with respect to blind, disabled, and illiterate voters. On appeal, however, the Eleventh Circuit did not reach the merits. Instead, it found Alabama’s statute too ambiguous—and too central to state election administration—to interpret on its own. Citing federalism, comity, and the need to resolve threshold issues of standing and preemption, the court certified a series of detailed questions to the Alabama Supreme Court under Alabama Rule of Appellate Procedure 18.

This opinion does not decide whether SB1 is valid or preempted. Its significance lies elsewhere: it crystallizes a federal appellate doctrine for handling ambiguous state criminal election laws that intersect with federal voting-rights protections. It emphasizes state courts’ primacy in interpreting their own statutes, especially where those interpretations directly determine (1) whether federal jurisdiction exists and (2) whether state law conflicts with federal law.

II. Summary of the Eleventh Circuit’s Opinion

A. Background on Alabama’s SB1 and Section 208

Alabama generally permits absentee voting only for voters who meet one of eight specific statutory conditions (such as being out of the county, ill, disabled, a caregiver, in jail for a non–moral-turpitude offense, etc.). The absentee process involves:

• Obtaining an absentee-ballot application (online, from the Absentee Election Manager, or by mail upon request);
• Completing the application and attaching a copy of photo ID; and
• Submitting the completed application to the county Absentee Election Manager in person, by mail, or by commercial carrier.

In 2024, Alabama enacted SB1, codified at Ala. Code § 17‑11‑4 (2025), with the stated aim (according to the Attorney General) of combating “self-interested ballot harvesters.” The statute contains three key provisions challenged in this case:

1. Payment Provision – § 17‑11‑4(d)(1): It is unlawful for a “third party” to knowingly receive a “payment or gift” for: “distributing, ordering, requesting, collecting, completing, prefiling, obtaining, or delivering” an absentee ballot application. This is a Class C felony (1 year and 1 day to 10 years, up to $15,000 fine).
2. Gift/Payor Provision – § 17‑11‑4(d)(2): It is unlawful for any person knowingly to pay or provide a gift to a third party for the same set of activities. This is a Class B felony (2 to 20 years, up to $30,000 fine).
3. Submission Restriction – § 17‑11‑4(c)(2): It is unlawful “for an individual to submit a completed absentee ballot application to the absentee election manager other than his or her own application,” with limited exceptions (notably for emergency medical treatment shortly before an election, declared emergencies, and UOCAVA voters).

At the same time, SB1 also adds an apparently protective subsection:

Assistance Provision – § 17‑11‑4(e): “Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by an individual of the voter's choice, other than the voter's employer or agent of that employer or officer or agent of the voter's union.”

This language tracks Section 208 of the VRA almost verbatim, except for substituting “individual” for “person.”

B. The Plaintiffs and Their Activities

The plaintiff organizations—GBM, the Alabama NAACP, LWVAL, and ADAP—are non-profit, non-partisan groups that have long assisted voters, particularly blind, disabled, and illiterate voters, in navigating absentee voting. Their activities include:

• Holding educational events about absentee voting;
• Training volunteers to assist voters with absentee applications;
• Creating and distributing printed and online educational materials;
• Helping voters obtain, complete, and submit absentee applications (including reading the form aloud, explaining terms, physically filling in the form at the voter’s direction, making ID copies, and placing completed applications in the mail); and
• Providing volunteers with food, water, gas stipends, and branded materials (t‑shirts, pens, etc.) in connection with their work.

They also assist incarcerated eligible voters and work with staff at residential and mental-health facilities who help disabled residents vote.

Because SB1 criminalizes receiving or giving payments or gifts for certain absentee-application-related acts, and bars anyone from submitting another person’s completed application (subject to narrow exceptions), Plaintiffs feared they and their staff, volunteers, and associated caregivers or officials would face felony or misdemeanor charges if they continued their work.

C. District Court Proceedings

Plaintiffs sued the Alabama Attorney General, the Secretary of State, and 42 District Attorneys, asserting multiple federal claims (First and Fourteenth Amendments, Section 208, and the Help America Vote Act). By agreement, the District Attorneys were dismissed but bound by any non-monetary relief against the Attorney General and Secretary.

The district court:

• Dismissed all claims except the Section 208 preemption claim;
• Dismissed the Secretary of State, leaving the Attorney General as the sole defendant; and
• Ultimately granted a preliminary injunction, enjoining the Attorney General from enforcing the Payment and Gift Provisions and the Submission Restriction against blind, disabled, and illiterate voters.

The district court viewed Plaintiffs’ claim as “classic conflict preemption” and applied a standard drawn from Senate Judiciary Committee reports: state laws are preempted by Section 208 only to the extent they “unduly burden” the federal right, a “practical” fact-dependent determination. It held that:

• The Submission Restriction unduly burdened Section 208 because it criminalized returning anyone else’s absentee application with “no exception” for Section 208 voters; and
• The Payment and Gift Provisions plausibly unduly burdened Section 208 by restricting the ability of organizations and their paid staff/volunteers (who receive things of value) to assist blind, disabled, and illiterate voters.

D. The Eleventh Circuit’s Disposition: Certification Instead of Merits

On appeal, the Attorney General argued that:

• Plaintiffs lacked standing because their activities were not actually criminalized by SB1, properly construed; and
• The district court erred in concluding that Section 208 preempts SB1’s provisions.

Ordinarily, the Eleventh Circuit would review the preliminary injunction for abuse of discretion (Gonzalez v. Governor of Georgia, 978 F.3d 1266 (11th Cir. 2020)). Here, however, the court declined to reach the merits. For two related reasons, it concluded it could not proceed without authoritative state-court guidance on SB1’s meaning:

1. Standing concerns. If, correctly interpreted, SB1 does not criminalize Plaintiffs’ activities, then they lack an injury in fact (no credible threat of prosecution), and the federal courts would lack Article III jurisdiction. The court emphasized its independent duty to examine standing, even if the parties did not raise it, citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230–31 (1990).
2. Preemption analysis depends on state law meaning. The district court’s conflict-preemption analysis turned on how SB1 actually works. But SB1’s text is “not a very clear law” and contains “vague and undefined terms” and apparent internal conflicts. Without authoritative state-court interpretation, the Eleventh Circuit could not reliably determine whether SB1 “unduly burdens” Section 208 rights.

Unable to resolve these threshold questions based on the statutory text and the parties’ conflicting interpretations—and recognizing that Alabama’s Attorney General’s views are only advisory, not binding under Alabama law—the Eleventh Circuit certified four detailed questions to the Alabama Supreme Court, effectively pausing the federal appeal until the state court clarifies the meaning of SB1.

III. Analysis

A. Precedents and Authorities Cited

1. Standing and Jurisdiction: FW/PBS, Inc. v. City of Dallas

The Eleventh Circuit invoked FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990), for the proposition that federal courts have an “independent obligation” to examine their own jurisdiction, and that standing is “perhaps the most important” jurisdictional doctrine. The Supreme Court in FW/PBS held that even when parties do not raise standing, federal courts must assess whether plaintiffs have suffered an injury in fact that is fairly traceable to the challenged action and redressable by the court.

Applied here, if Alabama’s SB1, properly interpreted, does not apply to Plaintiffs’ conduct, then Plaintiffs have no cognizable injury from a credible threat of prosecution, and the entire federal litigation collapses for lack of Article III jurisdiction. That possibility pushed the Eleventh Circuit toward seeking definitive guidance rather than making its own predictive state-law interpretation.

2. Certification and Federalism: WM Mobile Bay Env’t Ctr., In re Mooney, Edwards, Clarke, Spain

Several Eleventh Circuit decisions frame certification as the preferred tool when unresolved questions of state law are dispositive:

• WM Mobile Bay Env’t Ctr., Inc. v. City of Mobile Solid Waste Auth., 972 F.3d 1240 (11th Cir. 2020): The court described certification as the “better option” when substantial doubt exists on a dispositive state-law issue and emphasized that, as a matter of “federalism and comity,” significant issues of Alabama law should be decided first by the Alabama Supreme Court.
• In re Mooney, 812 F.3d 1276 (11th Cir. 2016): Cited for the same proposition, reinforcing that federal courts should defer to state high courts when state law is uncertain and outcome-determinative.
• Edwards v. Kia Motors of America, Inc., 554 F.3d 943 (11th Cir. 2009): Stands for the principle that a state supreme court’s answers to certified questions are “conclusive” as to state law in the certifying federal court.
• United States v. Clarke, 780 F.3d 1131 (11th Cir. 2015), and Spain v. Brown & Williamson Tobacco Corp., 230 F.3d 1300 (11th Cir. 2000): Emphasize that certified questions are “intended only as a guide” and that the state supreme court is free to restate, expand, or modify the questions in addressing the underlying issues.

By invoking this line of cases, the Eleventh Circuit signals that this is the paradigm case for certification: state statutory language is unclear; the meaning of that language is dispositive of both standing and preemption; and the subject matter—state election administration and criminal law—is classically an area where state courts’ interpretive authority should be respected.

3. Limits of Attorney General Opinions: Health Care Auth. for Baptist Health v. Central Ala. Radiation Oncology

The Eleventh Circuit notes that, under Alabama law, opinions of the Attorney General are advisory and non-binding. It cites Health Care Auth. for Baptist Health v. Central Ala. Radiation Oncology, LLC, 292 So. 3d 623, 635 (Ala. 2019), where the Alabama Supreme Court held that an Attorney General’s opinion “is only advisory; it is not binding on this Court and does not have the effect of law.”

This is crucial because the Attorney General attempted to narrow SB1’s reach in litigation (e.g., by arguing that general wages to health aides do not constitute “payments” for absentee-application assistance unless accompanied by a special bonus). The Eleventh Circuit declines to accept these litigation positions as authoritative. Instead, it insists that only the Alabama Supreme Court’s interpretation can definitively resolve these textual ambiguities.

4. Canons of Statutory Construction: Scalia & Garner’s Reading Law

The opinion cites Antonin Scalia and Bryan Garner’s Reading Law: The Interpretation of Legal Texts for the proposition that courts should avoid constructions that create internal conflicts within a statute if a harmonious reading is reasonably available. This canon is invoked in discussing whether the assistance guarantee in § 17‑11‑4(e) should be read to harmonize with, and perhaps implicitly limit, the Payment and Gift Provisions and the Submission Restriction, rather than to exist in tension with them.

B. The Court’s Legal Reasoning

1. From Merits to Threshold: Why Standing Came First

This is, substantively, a Voting Rights Act preemption case. But procedurally, the Eleventh Circuit shifts the spotlight from preemption to justiciability. Federal courts may only adjudicate actual “cases” or “controversies” under Article III. In pre-enforcement challenges to criminal statutes, plaintiffs typically establish injury in fact by showing a credible threat of prosecution for constitutionally protected or federally protected conduct.

Here, Plaintiffs allege they face serious felony and misdemeanor exposure under SB1 if they continue assisting Section 208 voters with absentee applications in the ways they have historically done. But whether that threat is “credible” depends on what SB1 actually prohibits—and that, in turn, depends on how Alabama courts interpret its key terms and internal interactions.

Thus, standing and merits are intertwined: a narrow state-law interpretation might both:

• Eliminate Plaintiffs’ injury (no credible threat of prosecution, so no standing); and
• Avoid any conflict with Section 208 (thus negating preemption and mooting the federal claim).

Recognizing this, the Eleventh Circuit declines to guess at state law and instead seeks authoritative clarification before deciding whether it has jurisdiction at all.

2. The Four Major Ambiguities in SB1

The opinion isolates four main textual uncertainties in SB1. These are the core of the certified questions.

a. The Role of § 17‑11‑4(e): Does It Create an Implied Exception?

Section 17‑11‑4(e) guarantees that any voter who needs assistance “to vote” because of blindness, disability, or inability to read or write “may be given assistance by an individual of the voter's choice,” subject only to the employer/union-agent exclusion. This mirrors Section 208’s protection.

The key question: Does that language implicitly carve out an exception to SB1’s criminal prohibitions?

• Attorney General’s view. The AG contends that § 17‑11‑4(e) creates an exception to the Submission Restriction for assistors of blind, disabled, and illiterate voters—allowing those assistors to submit applications on the voter’s behalf—but not to the Payment and Gift Provisions. In his view, the latter still criminalize “paid” or “gift-supported” assistance even for Section 208 voters.
• Plaintiffs’ view. Plaintiffs argue that § 17‑11‑4(e) states a voter’s right but does not immunize assistors from criminal liability. The subsection says nothing about exemptions from other subsections, and other parts of SB1 that do create exceptions (e.g., for emergencies and UOCAVA voters) are explicit.

The Eleventh Circuit notes that § 17‑11‑4(e) speaks in terms of the voter’s right to be “given assistance,” not the assistor’s immunity. It also observes that other exceptions are explicit and differently worded, and that presumably no one thinks an assistor may commit unrelated crimes (e.g., jailbreak) in the name of providing assistance.

However, the court also recognizes that a harmonizing reading—that § 17‑11‑4(e) functions as a structural “safe harbor” for Section 208 voters and their assistors—would eliminate or narrow any conflict between state and federal law. Without guidance from the Alabama Supreme Court, the Eleventh Circuit refuses to choose between these competing readings.

b. What Counts as “Distributing, Ordering, Requesting, Collecting, Completing, Prefilling, Obtaining, or Delivering”?

SB1 does not criminalize all “assistance” with absentee voting. It targets only specific verbs related to absentee applications: “distributing, ordering, requesting, collecting, completing, prefiling, obtaining, or delivering”. None of these terms is defined, and their ordinary meaning could be narrow (e.g., physical handling of forms) or broad (including educational or advisory work).

Plaintiffs’ activities are diverse. To avoid guesswork, the Eleventh Circuit lists, in its certified Question 2, a detailed set of 23 concrete actions and asks the Alabama Supreme Court whether any of them fall within SB1’s prohibited verbs. These activities range from:

• Giving a voter a blank application (2(a));
• Providing pens, envelopes, or stamps (2(b));
• Informing voters about absentee rules or answering questions (2(c)–(d));
• Creating and distributing educational materials, online and in print (2(e)–(f));
• Printing or linking to application forms (2(g)–(h));
• Helping voters download applications (2(i));
• Explaining how to fill out applications, reading them aloud, or walking voters through them (2(j)–(l));
• Physically completing the form at the voter’s direction (2(m));
• Clarifying complex terms, witnessing signatures, and copying IDs (2(n)–(p));
• Reviewing applications for errors (2(q));
• Submitting applications to election officials (2(r));
• Placing applications in an envelope, sealing, stamping, and mailing (2(s)–(t));
• Referring voters to voting-rights counsel (2(u)); and
• Holding events or trainings around absentee voting (2(v)–(w)).

The breadth and specificity of this list is striking. It illustrates how, without statutory definitions, everyday get-out-the-vote activities can plausibly be characterized as “distributing,” “collecting,” or “delivering” applications—or alternatively, as outside those terms.

The answer to this question will shape both standing (which Plaintiffs actually face criminal exposure) and the preemption analysis (which forms of Section 208–protected assistance, if any, are criminalized by SB1).

c. “Payment” and “Gift” and the Knowledge Requirement

The Payment and Gift Provisions penalize those who “knowingly” receive a “payment or gift for” or pay/give a gift to a third party “to” engage in the listed absentee-application activities. Again, none of the key nouns (“payment,” “gift”) is defined in the statute.

The Eleventh Circuit highlights two puzzles:

• Ordinary wages and salaries. Do health aides, residential staff, or employees of plaintiffs’ organizations—who are paid for general caregiving or outreach work that happens to include absentee-application assistance—receive “payment for” assistance within the meaning of SB1? Under Alabama’s criminal code, a person acts “knowingly” with respect to conduct if he is aware that his conduct is of that nature or that the relevant circumstance exists. See Ala. Code § 13A‑2‑2(2). Thus, if both payer and recipient know that part of the job duties is helping with absentee applications, does the salary qualify as a “payment for” such assistance?
• In-kind support as “gifts.” Plaintiffs note that volunteers are frequently provided food, water, gas stipends, and branded materials to facilitate their work. Are these “gifts” “for” or “to” assist with absentee applications? If so, both volunteers and organizations might fall within SB1’s felony prohibitions.

The Attorney General urges a narrower understanding: only payments or gifts specially earmarked as compensation for absentee-application assistance—e.g., a “bonus” paid for each application—would be covered. But the statute’s text does not articulate such a limitation, and the Eleventh Circuit is unwilling to rely on a non-binding narrowing gloss to salvage the statute or to defeat standing.

d. Who Is a “Third Party”?

SB1 applies its Payment and Gift Provisions only where a “third party” receives payment or a gift. The statute does not define “third party,” and the opinion notes uncertainty over whether:

• Paid health aides;
• Healthcare workers and facility staff;
• Staff and volunteers of Plaintiffs’ organizations; and
• Prison or jail officials

are “third parties” within the meaning of the statute. If, for example, a caregiver is paid by the voter herself, is that caregiver a “third party” as between the voter and herself? Or is “third party” meant to refer only to intermediaries not in the direct payer–payee relationship? The text gives no clear answer.

Again, the Eleventh Circuit leaves this question for the Alabama Supreme Court, recognizing that its resolution has major consequences for the scope of criminal liability.

3. Certification as the Chosen Federalism Tool

Instead of abstaining entirely or attempting its own predictive interpretation of Alabama law, the Eleventh Circuit opts for certification—a hybrid approach that:

• Retains jurisdiction over the federal case;
• Transmits the entire record to the Alabama Supreme Court; and
• Asks the state high court to answer specific (but non-limiting) questions of state law.

The court frames this as the “better option” in light of:

• The “substantial doubt” about SB1’s meaning;
• The dispositive nature of that meaning for both standing and preemption; and
• Basic principles of comity and state sovereignty in the regulation of elections and criminal law.

Importantly, by explicitly noting that its questions are “intended only as a guide,” the Eleventh Circuit invites the Alabama Supreme Court to reframe or expand the issues. This open-ended invitation underscores the respect owed to state courts as final expositors of state law.

4. Relationship to Section 208 Preemption Analysis

While the Eleventh Circuit does not reach a preemption holding, the structure of its concerns reveals how it views the Section 208 analysis:

• If SB1—properly construed by the Alabama Supreme Court—allows blind, disabled, and illiterate voters to receive assistance “by a person [or individual] of the voter’s choice” throughout the absentee-application process, including from paid caregivers and organizational volunteers, the conflict with Section 208 may evaporate.
• Conversely, if SB1 criminalizes core Section 208–protected assistance (for example, a blind voter’s chosen assistor physically completing and submitting the absentee application, especially when that assistor is a paid caregiver or a volunteer receiving de minimis support), the Eleventh Circuit will have to square that with the VRA and the Senate’s “undue burden” standard.

In other words, the Alabama Supreme Court’s answers will determine whether the Eleventh Circuit faces a serious Supremacy Clause clash or can resolve the case on narrower, jurisdictional, or non-preemption grounds.

C. Potential Impact on Future Cases and on Election Law

1. Strengthening the Role of State Courts in Election-Law Disputes

This opinion reinforces a robust role for state supreme courts in defining the scope of their election laws, especially when those laws are challenged as conflicting with federal voting-rights protections. Rather than having a federal appellate court predict how Alabama courts would read SB1, the Eleventh Circuit insists on giving the Alabama Supreme Court the first and final word on statutory interpretation.

Practically, this approach:

• Reduces the risk that federal courts will misinterpret or overbreadth state statutes;
• Enables state courts to adopt narrowing constructions that may avoid federal constitutional or statutory conflicts; and
• Signals to litigants that in complex, ambiguous election-law disputes, certification may delay resolution but produce more durable, authoritative outcomes.

2. Implications for Section 208 Litigation Nationwide

Section 208 litigation is increasing, particularly in states that have enacted strict regulations on third-party assistance in voting and absentee processes, often under the banner of combating “ballot harvesting.” This opinion, though procedural, has several broader implications:

• Fact-intensive, state-law-first approach. Federal courts may increasingly insist on granular, state-law clarification before adjudicating whether such statutes are preempted by Section 208.
• Scope of “assistance.” The Eleventh Circuit’s detailed certification list reflects a highly functional view of voting assistance, encompassing not only physical handling of forms but also informational, advisory, and accessibility-related help. State courts’ answers to such questions will influence how broad or narrow Section 208’s practical reach is understood to be.
• State analogs to Section 208. Many states, like Alabama, have enacted statutory language that mirrors Section 208. How those provisions are harmonized—or not—with anti-harvesting restrictions will be central to whether state law preserves or undermines the federal right to assistance.

3. Drafting Lessons for State Legislatures

The Eleventh Circuit’s concerns expose potential drafting pitfalls for legislatures seeking to regulate absentee-assistance activity while respecting Section 208:

• Define key terms. Terms like “distributing,” “collecting,” “delivering,” “payment,” “gift,” and “third party” should be clearly defined to avoid sweeping in harmless or essential assistance and to reduce vagueness and overbreadth challenges.
• Express exceptions for Section 208 voters. If a legislature intends to preserve the rights of blind, disabled, and illiterate voters to receive assistance from a person of their choice, it should say so explicitly and specify that the assistor is not subject to criminal liability for that assistance.
• Address ordinary caregiving and civic activity. Statutes should clarify whether and how they apply to:
  • Paid caregivers and health aides;
  • Nonprofit staff and volunteers;
  • In-kind support (snacks, travel stipends, basic supplies) provided during civic-engagement work.
  Failure to do so invites litigation and judicial narrowing.

4. Pre-Enforcement Standing and the Limits of “Trust Us” Narrowing

The opinion underscores that state officials’ assurances about how they intend to enforce a criminal statute are not enough to defeat standing or cure statutory ambiguity. The Attorney General’s litigating position—that only special “bonuses” for absentee assistance are covered, and that ordinary caregiving duties are safe—cannot substitute for statutory language or binding judicial construction.

For plaintiffs contemplating pre-enforcement challenges:

• If a statute is facially broad and ambiguous, and carries severe penalties, courts are likely to find a credible threat of prosecution unless and until authoritative state-court narrowing occurs.
• Certification provides a path to test whether narrow constructions are indeed available and adopted, rather than merely posited by enforcement officials.

5. Disability Rights, Federally Funded Advocacy, and Criminal Exposure

ADAP’s role raises a particular concern: it is a federally funded Protection and Advocacy (P&A) agency whose mission includes facilitating accessible voting. The Eleventh Circuit expressly asks whether ADAP’s federally funded activities—or the federal grant itself—might create criminal liability under SB1’s Payment and Gift Provisions.

If, for example, Alabama law were interpreted to criminalize ADAP’s core functions, a direct Supremacy Clause conflict would arise between state law and federal P&A mandates, in addition to Section 208. Certification may thus force the Alabama Supreme Court to confront the compatibility of SB1 with federal disability rights frameworks as well as voting-rights law.

IV. Clarification of Key Legal Concepts

1. Section 208 of the Voting Rights Act

Section 208 provides that any voter who needs assistance “to vote” because of blindness, disability, or inability to read or write “may be given assistance by a person of the voter’s choice,” excluding only the voter’s employer or union agents. Courts have generally read this as:

• Covering all stages of the actual act of voting, including marking and casting ballots; and
• Applying to all modes of voting, including absentee and mail-in voting, not just in-person polling-place voting.

The key federal question in this case is whether assistance with absentee applications is part of the “assistance to vote” protected by Section 208. The district court effectively said yes; the Eleventh Circuit’s certification assumes that at least some absentee-application assistance is plausibly within Section 208’s sweep, but leaves the precise scope for future resolution.

2. Preemption and “Conflict Preemption”

Under the Supremacy Clause, federal law can displace state law in several ways:

• Express preemption: Congress explicitly says a federal statute overrides state law.
• Field preemption: Congress so thoroughly regulates an area that there’s no room for state law.
• Conflict preemption: State law conflicts with federal law (making compliance with both impossible) or stands as an “obstacle” to the full purposes and objectives of Congress.

This case involves alleged conflict preemption. Plaintiffs argue that SB1 stands as an obstacle to Section 208’s purpose—ensuring that certain vulnerable voters can actually exercise the right to vote through assistance from a person of their choice. The district court used a specific Senate Report formulation: state law is preempted to the extent it “unduly burdens” Section 208’s right.

Whether SB1 poses such an “undue burden” depends directly on how broadly it criminalizes assistance activities that Section 208 protects—a question the Eleventh Circuit defers to Alabama’s courts.

3. Standing and Pre-Enforcement Challenges

To sue in federal court, plaintiffs must show:

1. Injury in fact: a concrete and particularized harm, either actual or imminent;
2. Causation: the injury is fairly traceable to the defendant’s conduct; and
3. Redressability: a favorable court decision will likely redress the injury.

In pre-enforcement challenges to criminal statutes (like this one), plaintiffs often show injury in fact by demonstrating a credible threat of prosecution if they engage in intended conduct. Courts consider:

• The text and penalties of the statute;
• The history of enforcement or stated enforcement intentions; and
• Whether plaintiffs genuinely intend to engage in arguably proscribed conduct.

Here, the severe penalties and Plaintiffs’ long-standing activities support a credible-threat finding—if SB1 actually covers those activities. The Eleventh Circuit’s reluctance to decide standing without clear state-law interpretation underscores how statutory ambiguity can complicate pre-enforcement standing analysis.

4. Certification of Questions of State Law

Certification is a procedure by which a federal court sends specific legal questions about state law to the state’s highest court for authoritative resolution. In Alabama, Rule 18 of the Alabama Rules of Appellate Procedure governs certification.

Certification:

• Is discretionary (the state supreme court can accept or decline);
• Is not an appeal in the traditional sense; and
• Results in binding answers on the meaning of state law for the certifying federal court.

It allows federal courts to avoid speculative or incorrect interpretations of state law and can foster cooperative federalism, particularly in sensitive areas like election administration and criminal justice.

5. “Ballot Harvesting” vs. Section 208 Assistance

“Ballot harvesting” is a colloquial term used to describe third parties’ collection and return of absentee ballots or related materials, often in bulk. Critics argue it can facilitate fraud or undue influence; proponents see it as a lifeline for voters who cannot easily mail or deliver their ballots.

Section 208’s guarantee of assistance from a person of the voter’s choice protects individualized assistance for voters with certain disabilities or literacy barriers. The legal challenge in this case arises because SB1’s broad criminalization of compensated or gift-supported “assistance” with absentee applications may sweep in precisely the individualized help that Section 208 protects, even if the legislature’s stated goal was to curb large-scale or exploitative ballot harvesting.

V. Conclusion

Alabama State Conference of the NAACP v. Attorney General, State of Alabama does not resolve the underlying conflict between Alabama’s SB1 and Section 208 of the Voting Rights Act. Instead, it sets a procedural and doctrinal template: when a state criminal election law is both ambiguous and outcome-determinative for federal standing and preemption, federal courts should favor certification to the state supreme court over unilateral interpretation.

Key takeaways include:

• Federal courts have an independent duty to ensure Article III jurisdiction; where criminal exposure depends on unresolved state-law interpretation, that inquiry may precede and shape the preemption analysis.
• State attorneys general’s litigating positions cannot substitute for authoritative statutory construction; state supreme courts remain the final arbiters of state law.
• Ambiguously drafted “ballot harvesting” statutes risk criminalizing ordinary civic engagement and disability-related assistance; precise definitions and explicit protections for Section 208 voters and their assistors are crucial to avoid conflict with federal law.
• Certification allows state courts to adopt narrowing constructions that may both preserve federal rights and clarify state enforcement, reducing uncertainty for civic organizations and voters.

Whatever the Alabama Supreme Court ultimately decides, this Eleventh Circuit opinion stands as an important precedent on the interplay between federal voting rights, state election crimes, and the institutional roles of federal and state courts. It underscores that in the sensitive domain of voting, especially where vulnerable populations and severe criminal penalties are involved, clarity in the law is not a luxury but a constitutional necessity.