Last year, the 9th Circuit Court of Appeals blocked both GOP-supported measures: one that bars counting votes cast in the wrong precinct but in the right county, and another that limits who can turn in another person’s absentee mail ballot on a voter’s behalf.
Arizona had largely transitioned to mail voting even before the pandemic, but the 9th Circuit observed that only 18% of Native American voters receive mail service, and many living on remote reservations lack reliable transportation options. That led some voters to ask others in their community to turn their completed ballots in, which Republicans have sought to deride as “ballot harvesting” in an attempt to delegitimize the practice. The invalidated law had limited who could handle another person’s mail ballot to just close relatives, caregivers, or postal service workers.
The 9th Circuit’s ruling also invalidated a separate provision prohibiting out-of-precinct voting, in which a voter shows up and casts a ballot at the wrong polling place but in the right county on Election Day. Under the invalidated law, voters in such circumstances could only cast a provisional ballot, which were automatically rejected if it was later confirmed that the voter had indeed showed up at the wrong polling place.
The appellate court decision relied on Section 2 of the Voting Rights Act, which prohibits laws that have a discriminatory effect against racial minorities regardless of whether there was an intent to discriminate. The finding of a discriminatory effect is critical because it’s often much more difficult if not impossible to prove that lawmakers acted with illicit intent, whereas statistical analysis can more readily prove that a law has a disparate negative impact on protected racial groups.
It’s this so-called “effects test” that is the key remaining plank of the Voting Rights Act following the Supreme Court’s notorious 2013 decision in Shelby County v. Holder, which invalidated a requirement that many jurisdictions with a history of discriminatory voting laws had to obtain Justice Department approval to make any changes to voting. Some legal observers had warned before this latest decision that even if the effects test weren’t formally struck down, the Supreme Court could make it so difficult to comply with the requirements to prove discrimination that the VRA would nevertheless become meaningless.
While the court did not strike down the rest of the foundation Voting Rights Act an apocalyptic scenario of ruling Section Two itself unconstitutional, their decision is still devastating to voting rights and could render much of the VRA dead letter.