“A person of the voter’s choice” is not absolute: Fifth Circuit narrows VRA § 208 preemption and tightens pre‑enforcement standing in challenges to Texas S.B. 1

Introduction

In La Union del Pueblo Entero v. Abbott, the U.S. Court of Appeals for the Fifth Circuit reversed a district court’s permanent injunction against several voter-assistance provisions in Texas Senate Bill 1 (S.B. 1). The plaintiffs—voter-advocacy organizations and civil-rights groups—argued that S.B. 1’s disclosure, oath, and compensation restrictions are preempted by Section 208 of the Voting Rights Act (VRA), which grants voters who are blind, disabled, or unable to read or write the right to receive “assistance by a person of the voter’s choice,” except for employers and unions. The district court agreed and enjoined enforcement statewide.

The Fifth Circuit (Judge Duncan, joined by Judge Smith) reversed. The court held that:

• No plaintiff organization established Article III standing to challenge S.B. 1’s disclosure and oath provisions because alleged fears of prosecution were speculative and resource-diversion theories were insufficient.
• Some organizations did have standing to challenge the compensation provisions because their intended conduct plausibly risked prosecution, but those provisions are not preempted by VRA § 208.

Judge Graves dissented, arguing both that the compensation limits conflict with § 208 and that plaintiffs did demonstrate standing to challenge the oath and disclosure provisions. This decision refines the interplay between federal voting rights and state election administration, and it tightens the standard for organizational standing in pre-enforcement challenges.

Summary of the Judgment

• Standing
  • Disclosure provisions (S.B. 1 §§ 6.03, 6.05, 6.07): No organizational or associational standing. The court found no credible threat of enforcement; alleged recruitment difficulties and chills were speculative; diversion of resources was inadequate under current standing doctrine.
  • Oath provision (S.B. 1 § 6.04): No standing. Fears of prosecution were speculative; the amended oath largely reiterated existing law and consequences.
  • Compensation provisions (S.B. 1 §§ 6.06, 7.04): Standing exists for some plaintiffs (e.g., OCA–Greater Houston and LUPE for § 6.06; LUPE- and LULAC-aligned plaintiffs for § 7.04) due to a credible threat of prosecution for intended, ongoing activities.
• Preemption (Merits)
  • Outcome: VRA § 208 does not preempt Texas’s bans on compensated assistance to mail voters (§ 6.06) or compensated “vote harvesting” (§ 7.04).
  • Rationale: Section 208 guarantees assistance from “a person of the voter’s choice” but does not eliminate all state regulation of assistors. Reading § 208 to displace broad swaths of state law would upend the federal–state balance in election administration without a “clear and manifest” congressional directive.
• Disposition: Reversed, permanent injunction vacated, and case remanded.

Analysis

Precedents Cited and Their Influence

• Standing authorities:
  • Spokeo, Inc. v. Robins, Lujan v. Defenders of Wildlife: Foundations for injury in fact, traceability, and redressability.
  • Clapper v. Amnesty International: Speculative “chains of possibilities” do not establish standing.
  • FDA v. Alliance for Hippocratic Medicine (2024): Organizations cannot “spend their way into standing” by diverting resources to advocacy; organizational standing requires more than self-imposed expenditures.
  • Susan B. Anthony List v. Driehaus: Pre-enforcement standing exists where there is an intention to engage in arguably proscribed conduct and a credible threat of prosecution.
  • TransUnion LLC v. Ramirez: Concrete injury and historical analogs are required; subjective chill alone is insufficient outside the First Amendment context.
  • Crawford v. Marion County Election Board: “Usual burdens of voting” do not constitute cognizable injury.
  • Fifth Circuit applications including Texas State LULAC v. Elfant, Nat’l Press Photographers Ass’n v. McCraw, Vote.Org v. Callanen, and In re Gee shaped the credible-threat and redressability analysis.
• Preemption authorities:
  • Kansas v. Garcia, Chamber of Commerce v. Whiting, Geier v. Honda: Structure of preemption doctrines and caution against freewheeling “purposes and objectives” preemption.
  • Deanda v. Becerra (5th Cir. 2024), Barrosse v. Huntington Ingalls (5th Cir. 2023): High threshold for “purposes and objectives” preemption; presumption against preemption where state police powers are implicated.
  • Storer v. Brown, Washington State Grange v. Washington State Republican Party: States’ longstanding authority to regulate election procedures.
  • Republican National Committee v. Wetzel (5th Cir. 2024): Elections Clause caveat; not controlling here because § 208 is not asserted as Elections Clause legislation.
  • Expressio unius canon cases: United States v. Vargas (en banc), Barnhart v. Peabody Coal, Marx v. General Revenue Corp. Emphasized that omitted items must be part of a “series” and the context must signal exclusivity—conditions the court found lacking.
  • INS v. Chadha, Matter of DeBerry, Virginia Uranium, Inc. v. Warren: Legislative history is not law; supremacy flows from enacted text; courts avoid “brooding” federal interests untethered to statutory language.
  • OCA–Greater Houston v. Texas (5th Cir. 2017): Limited to the scope of “assistance to vote” under § 208 (i.e., what “to vote” covers) rather than who may assist; the panel declined to read OCA as controlling on the identity of assistors.

Legal Reasoning

1) Standing

The majority’s standing analysis drew three bright lines. First, speculative enforcement fears are not a concrete injury. The court found no evidence that anyone had violated or been prosecuted under S.B. 1’s disclosure or oath provisions, and no credible threat of enforcement existed. Thus, alleged “chilling effects” outside the First Amendment context did not suffice. Second, resource-diversion standing—post-Alliance for Hippocratic Medicine—cannot be manufactured by choosing to expend time and money on education or advocacy in response to a law; organizations must show that the law directly impairs core operational activities in a concrete way. Third, pre-enforcement standing is viable when plaintiffs intend to engage in arguably proscribed conduct and prosecutors have not disclaimed enforcement, as with the compensation provisions based on record testimony and plaintiffs’ stated plans.

• Disclosure provisions: Organizational standing failed because recruitment difficulties rested on “baseless speculation” of future prosecution; associational standing failed because alleged member harms were self-imposed reactions to speculative risks, and modest delays at the polls were “usual burdens of voting.”
• Oath provision: Similar result. The oath’s additions largely made explicit existing legal consequences (e.g., perjury) and did not generate a credible threat of prosecution for lawful assistance. Absent evidence of intent to violate or a likelihood of enforcement, fears were too conjectural.
• Compensation provisions: The court found concrete injury and credible threats for organizations that planned compensated assistance to mail voters (§ 6.06) or paid “vote harvesting” (§ 7.04). The prosecutor defendants had not disavowed enforcement; injunctions could redress the threat.

2) Preemption (VRA § 208 vs. S.B. 1’s Compensation Provisions)

The court framed the preemption question as a “purposes and objectives” conflict-preemption claim, which must clear a “high threshold” and is subject to a presumption against preemption when state historic police powers—like election administration—are at stake. Because § 208 was not asserted as Elections Clause legislation, the presumption applied.

On the text of § 208, the panel held that “assistance by a person of the voter’s choice” does not mean “assistance by any person whatsoever, regardless of state election rules.” Reading § 208 to erase ordinary, neutral eligibility restrictions on assistors (e.g., minors, armed individuals, electioneers, candidates, prisoners) would produce implausible results and lack a clear statement from Congress to displace state law so broadly. The court rejected the district court’s attempt to draw a line between “generally applicable” laws and “assistor-specific” laws; a ban on firearms at polling places and a rule barring armed assistors both limit who can assist in equal measure.

The court declined to extend its 2017 decision in OCA–Greater Houston, explaining that OCA addressed the scope of “assistance to vote” (what activities and stages are covered), not the identity of who may assist. OCA did not speak to broad preemption of state eligibility rules for assistors.

The court also rejected the expressio unius argument that because § 208 expressly excludes employers and unions, all other exclusions are barred. The exclusions are not part of an “associated series” that signals exclusivity, and they are conceptually different from compensation-based restrictions. Congress’s choice to list employer/union conflicts of interest does not resolve whether states can regulate other risk factors like paid ballot harvesting.

Finally, the court discounted the Senate Report on the 1982 VRA amendments, noting it is not law and cannot overcome the presumption against preemption or the requirement of a clear and manifest congressional intent. Even if consulted, the report acknowledges state authority to establish procedures that protect voters’ rights and anticipates only modest preemptive effects from § 208.

The Dissent (Judge Graves): Counter-Analysis

• Standing:
  • Associational standing: Arc members with disabilities lost access to their preferred assistors due to reasonable fears of criminal exposure; that is a present injury to voting rights, not mere speculation.
  • Organizational standing: Under Havens Realty and OCA–Greater Houston, plaintiffs showed perceptible impairments to core services (e.g., reduced volunteers, increased training burdens, inability to conduct assistance programs), not just policy advocacy costs.
  • Pre-enforcement risk: Texas had not disclaimed enforcement; S.B. 1 is recent; and the Attorney General was pursuing “assistance fraud” matters—collectively supporting a credible threat.
  • Vagueness chill: New oath language (e.g., “did not pressure or coerce,” prospective non-disclosure of how a voter voted) can require subjective judgments under penalty of perjury, inviting investigations. That concrete chill impairs operations and member participation.
• Preemption:
  • Text and structure: § 208 vests the choice of assistor in the voter, subject only to the statute’s two enumerated exceptions. By adding compensation-based exclusions, Texas restricts that federally protected choice.
  • Legislative history: The 1982 Senate Report (recognized as authoritative context in Thornburg v. Gingles) demonstrates Congress’s intent to prevent state narrowing of the right, including limitations that channel assistance to poll officials or otherwise undermine meaningful choice.
  • VRA’s federalism profile: The Act was designed to displace state laws that abridge access, enforcing protections under the Reconstruction Amendments; the “clear and manifest” standard is satisfied here.
  • Absurdity canon: The majority’s hypotheticals are inapt; neutral entry restrictions (no guns, no electioneering, no prisoners in polling places) are categorically different from laws directly redefining who may assist.
  • Effect on § 208: The majority’s approach risks hollowing § 208’s voter-centric guarantee by letting states “superintend” assistance through categorical exclusions unrelated to the two statutory exceptions.

Impact

• Within the Fifth Circuit (TX, LA, MS):
  • States may enforce bans on compensated assistance and compensated “vote harvesting” without violating § 208, absent a clearer conflict. Expect similar laws to be proposed or defended with renewed confidence.
  • Assistance regulations that target conduct at the polling place (e.g., candidate, minor, or armed assistors; electioneering restrictions) are unlikely to be preempted by § 208 under this reasoning.
• Standing doctrine for civil-rights organizations:
  • Pre-enforcement challenges must show concrete intended conduct and a credible threat of prosecution; generalized chill or fear is insufficient outside the First Amendment context.
  • Resource-diversion standing is narrowed after Alliance for Hippocratic Medicine. Organizations should build evidentiary records showing direct, non-self-inflicted interference with core services, not just educational outreach.
• Scope of VRA § 208:
  • OCA (2017) remains good law on the breadth of “assistance to vote” (what counts as “voting” tasks), but it does not control who may serve as an assistor. The panel’s reading leaves states with room to regulate who assists, provided the core right to assistance is not effectively extinguished.
  • Future litigation may pivot to as-applied challenges (e.g., if a compensation ban effectively leaves certain voters without feasible assistance) or to other constitutional claims (due process vagueness, First Amendment implications of assistance, ADA/§ 504 accommodations in special contexts).
• Potential circuit friction:
  • The dissent leans on legislative history and a robust view of VRA displacement. If other circuits read § 208 more aggressively, a circuit split could emerge, inviting Supreme Court review.

Complex Concepts Simplified

• Section 208 (VRA): Guarantees that voters who are blind, disabled, or unable to read or write may receive assistance “by a person of the voter’s choice,” except for the voter’s employer/agent or union/agent.
• Types of preemption:
  • Express: Congress expressly says a federal law overrides state law.
  • Field: Congress so thoroughly regulates an area that no room remains for states.
  • Conflict: State law conflicts with federal law—either physically impossible to comply with both, or the state law stands as an obstacle to federal purposes (“purposes and objectives”).
• Presumption against preemption: Courts assume Congress does not intend to displace state historic police powers (like election administration) unless the statute clearly says so.
• Pre-enforcement standing: Plaintiffs can sue before breaking the law if they intend to engage in arguably prohibited conduct and face a credible threat of enforcement; mere subjective chill or speculative fear is not enough.
• Organizational vs. associational standing:
  • Organizational: The group itself is injured (e.g., direct impairment of core services).
  • Associational: At least one member has standing, the interests are germane to the mission, and the claim doesn’t require individualized participation.
• Expressio unius: A canon of interpretation: listing certain items implies exclusion of others—used cautiously and only when context indicates the list is exclusive.
• “Vote harvesting” in S.B. 1: Defined as in-person interaction with voters, in the presence of an official or mail ballot, intended to deliver votes for a specific candidate or measure. S.B. 1 criminalizes providing or receiving compensation for such activity.

Practical Guidance

• For state election officials and legislators:
  • Neutral, content-independent rules that define who may assist (e.g., age, role, conflict-of-interest, safety within the polling place) are defensible under this decision.
  • Compensation bans must be clearly defined and consistently enforced; consider safe harbors (e.g., caregivers) with workable definitions to avoid vagueness concerns.
  • Build clear records of purpose (ballot integrity, anti-fraud interests) and avoid rules that effectively eliminate assistance options for protected voters.
• For advocacy organizations:
  • For standing, document concrete, imminent plans to engage in arguably prohibited conduct and specific threats of enforcement (e.g., official statements, past or pending investigations, charging histories).
  • Resource-diversion claims should highlight direct interference with core program delivery, not general education or advocacy expenditure.
  • Consider as-applied challenges where the law, in operation, leaves particular voters without practicable assistance.
• For litigators:
  • Separate standing by provision; the Fifth Circuit insisted on a provision-by-provision analysis.
  • When raising § 208 preemption, anchor arguments in text and concrete conflicts; legislative history alone will not carry a “clear and manifest” intent showing.
  • Do not rely on a broad reading of OCA (2017) to control who may assist; its holding concerned the scope of what “to vote” covers, not identity restrictions.

Conclusion

La Union del Pueblo Entero v. Abbott reshapes two critical fronts of voting-rights litigation in the Fifth Circuit. On standing, the court tightened the pre-enforcement threshold for organizational plaintiffs, making clear that speculative fear and generalized resource diversion—outside the First Amendment context—do not suffice. On the merits, the court held that VRA § 208 does not categorically preempt state regulation of who may assist, upholding Texas’s bans on compensated assistance and paid “vote harvesting” as consistent with the federal guarantee of assistance “by a person of the voter’s choice.”

The dissent underscores a competing vision: one that reads § 208’s voter-centered “choice” more robustly and treats the VRA as a statute designed to displace restrictive state measures that narrow access for voters needing assistance. That interpretive divide may generate further appellate attention, and possibly Supreme Court review, especially if other circuits take a broader view of § 208’s preemptive force.

For now, within the Fifth Circuit, states retain wide latitude to set neutral eligibility criteria for assistors, while litigants challenging such laws must assemble concrete records of intended conduct and credible enforcement risk. The decision reaffirms that § 208 is a powerful but not limitless safeguard—it ensures meaningful assistance, but does not strip states of their traditional authority to superintend the conditions under which that assistance occurs.