ALLENTOWN – A quintet of local plaintiffs whose mail-in votes from November’s general election were set to be discarded due to their signatures lacking an accompanying date have sued the Lehigh County Board of Elections in federal court, seeking an emergency preliminary injunction to prevent the certification of the results.
Linda Migliori, Francis J. Fox, Richard E. Richards, Kenneth Ringer and Sergio Rivas filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Jan. 31 versus the Lehigh County Board of Elections. All parties are of Lehigh County.
(Since the time of filing, Lehigh County judicial candidates Zac Cohen and David Ritter have been named as an intervenor plaintiff and an intervenor defendant, respectively. The outcome of their race could be decided in this case.)
The suit details that the five plaintiffs find themselves among 257 Lehigh County voters who did not write a date next to their signatures, on their mail-in ballots’ return envelope.
Besides asking the federal court to delay the certification of the votes, it wants all 257 votes counted as part of the final total – otherwise, the plaintiffs argue that invalidating the mail-in ballots is tantamount to “disenfranchisement” and that will “cause irreparable harm.”
The Lehigh County Board of Elections voted unanimously Nov. 15 to allow the ballots, a decision which Lehigh County Court of Common Pleas Judge Edward Reibman affirmed.
On Jan. 3, the Commonwealth Court ruled 2-1 to throw out the 257 mail-in ballots in question. Four weeks later, it found that the state law permitting mail-voting was unconstitutional.
The Lehigh County Board of Elections answered the complaint on Feb. 11.
“The Board of Elections admits the ballots at issue were not counted based a facial defect consisting of the voter’s failure to date the ballot-return envelope. The Board denies, however, that the ballots are otherwise valid and/or do not contain another defect, as the ballots were immediately removed and placed in sealed envelope upon the missing date being discovered. At this time no statement or position can be made relative to the validity of the remaining ballots,” per the Board.
The same day, both sides filed motions for summary judgment.
“The undisputed record in this case makes clear that plaintiffs are eligible, registered voters in Lehigh County, who properly applied for and completed their mail-in ballots, signed the declaration on the outer envelopes, and timely returned their ballot package to the County,” according to the plaintiffs’ motion.
“The lack of a handwritten date on plaintiffs’ and 252 other voters’ mail-in-ballot-return envelopes is the only reason their ballots will not be counted. Even interpreting the facts in the light most favorable to the defendants Board and Ritter, disenfranchisement of 257 voters based on a ministerial handwritten-date requirement that is immaterial and serves no practical purpose violates the Civil Rights Act and the First and Fourteenth Amendments to the U.S. Constitution.”
Meanwhile, the defense finds no such violation of the plaintiffs’ constitutional rights.
“The interest, as determined by both the Supreme Court of Pennsylvania and the Commonwealth Court of Pennsylvania, of ensuring a fair and honest election, and the manner in which Pennsylvania has elected to address this concern is minimal and purely mechanical...As a result, the burden placed upon mail-in voters under Pennsylvania law to include the date on the outer envelope of their ballot does not constitute an undue burden under the First or Fourteenth Amendments to the United States Constitution and is justified by Pennsylvania’s weighty interests in fraud prevention and ensuring the integrity of its elections,” countered the defendants’ respective motion.
“Indeed, where, as here, Pennsylvania’s Election Code imposes only ‘reasonable, nondiscriminatory’ restrictions on the right to vote, strict scrutiny is not required. Further, a showing there are important regulatory interests that justify the limited restrictions imposed, must result in a determination that no violation of First and Fourteenth Amendment rights has occurred. Therefore, plaintiffs cannot demonstrate the requisite element of a viable claim under this count as a matter of law.”
For counts of rejection of ballots for immaterial errors or omissions in violation of the Materiality Provision of the Civil Rights Act, undue burden on the fundamental right to vote in violation of the First and Fourteenth Amendments to the U.S. Constitution, denial of plaintiffs’ voting rights without pre-denial notice and opportunity to cure ballot errors in violation of the Procedural Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, the plaintiffs are seeking the following relief:
• Declaration that enforcement of the handwritten date requirement under 25 P.S. Section 3150.16(a) to reject timely submitted mail-in ballots based solely on failure to insert the date next to the voter’s signature on the return envelope:
a. Violates the Materiality Provision of the Civil Rights Act, 52 U.S.C. Section 10101(a)(2)(B); and
b. Violates the First and Fourteenth Amendments to the U.S. Constitution on their face;
• Declaration that defendant’s failure to ensure mail-in voters are provided with pre-deprivation notice and an opportunity to cure defects in their absentee and mail-in ballot envelopes prior to rejecting those ballots fails to meet minimum requirements of procedural due process and is therefore unconstitutional;
• Injunctive relief preliminarily and permanently enjoining defendant and all persons acting on its behalf from:
a. Rejecting or otherwise not counting the 257 otherwise-valid mail-in ballots timely submitted by 8 p.m. on Election Day based solely on the failure to include a date on the return envelope; and
b. Certifying the 2021 election in Lehigh County without counting such mail-in ballots.
• Award plaintiff costs and reasonable attorneys’ fees pursuant to 42 U.S.C. Section 1988; and
• Grant such other relief as this Court deems just and appropriate.
The plaintiffs are represented by Richard Tsai Ting, Stephen A. Loney Jr., Marian K. Schneider and Witold J. Walczak of ACLU Pennsylvania in both Pittsburgh and Philadelphia, plus Connor P. Hayes in Pittsburgh and Adam C. Bonin, in Philadelphia.
The defendant is represented by Joshua S. Mazin and Lucas John Repka of Repka Law Offices in Nazareth, plus Joshua Voss, Francis G. Notarianni, James G. Gorman III and Samantha G. Zimmer of Kleinbard, LLC, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 5:22-cv-00397
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com