ALLENTOWN – A federal judge has denied an attempt by five local voters to secure a preliminary injunction to prevent the certification of results from November’s general election by the Lehigh County Board of Elections, since the plaintiffs’ votes were set to be discarded due to their signatures lacking an accompanying date.
Linda Migliori, Francis J. Fox, Richard E. Richards, Kenneth Ringer and Sergio Rivas first 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 detailed 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.”
UPDATE
On Feb. 24, 2022, all parties, intervenors and amici indicated to the Court that they wished to rely solely on their briefs and waived oral argument.
U.S. District Court for the Eastern District of Pennsylvania Judge Joseph F. Leeson Jr. granted the Lehigh County Board of Elections’ motion for summary judgment on March 16, in a 28-page opinion.
Leeson found that “the Commonwealth of Pennsylvania, as well as its citizens, have important interests in the integrity of the election process by holding fair, efficient and fraud-free elections that are supported by the handwritten date requirement.”
“An elector’s compliance with the signature and date requirement is an important guard against fraud. Where an elector fully complies with the instructions on the outer envelope, the electoral authorities conducting the election can be assured of the date on which the ballot was executed. Where, however, the outer envelope remains undated, the possibility for fraud is heightened, as individuals who come in contact with that outer envelope may, post hoc, fill in a date that is not representative of the date on which the ballot was executed. Moreover, that the parties agree to the timeliness of the ballots in this particular case does not alter the analysis. That these plaintiffs returned their ballots before the deadline does not obviate the requirement’s general purpose of combatting fraud in elections,” Leeson said.
“Accordingly, this Court finds that an important public interest in the integrity of an election process that ensures fair, efficient and fraud-free elections is served by compliance with the statute mandating the handwritten date requirement. These important government interests outweigh the minor condition imposed by the handwritten date requirement. Therefore, summary judgment is granted in defendants’ favor on plaintiffs’ constitutional claim.”
The plaintiffs were 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 was 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, Samantha G. Zimmer and Shohin Hadizadeh Vance 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