ERIE – Two county boards of election have opposed litigation from six voters’ rights groups against acting Secretary of the Commonwealth Leigh M. Chapman and all of the county boards of election statewide, in order to compel officials to accept undated mail-in ballots and “not disenfranchise voters based on an immaterial paperwork error.”
Pennsylvania State Conference of the NAACP, League of Women Voters of Pennsylvania, Philadelphians Organized to Witness, Empower and Rebuild, Common Cause Pennsylvania, Black Political Empowerment Project and Make the Road Pennsylvania first filed suit in the U.S. District Court for the Western District of Pennsylvania on Nov. 4 versus Chapman and the Boards of Election for all 67 Pennsylvania counties.
The litigation was filed only three days after the Supreme Court of Pennsylvania ruled to leave undated mail-in ballots uncounted, siding with Republicans who brought a lawsuit in the matter.
Among the six state Supreme Court justices, three Democratic justices (Justices Debra Todd, Christine Donohue and David Wecht) felt rejecting the undated ballots ran afoul of the Civil Rights Act’s voting rights tenets, while one Democratic justice and two Republicans (Kevin M. Dougherty, Sallie Updyke Mundy and P. Kevin Brobson) believed it would not.
No seventh-member opinion was issued since former Chief Justice Max Baer, a Democrat, passed away in September and has not been replaced on the judicial body.
“Plaintiffs represent the interests of their combined thousands of members – many of whom are qualified and registered Pennsylvania voters who timely voted by mail-in ballot, and at least some of whom are likely to be directly affected in the 2022 Election by defendants’ enforcement of the immaterial envelope date rule – in ensuring that every valid vote, regardless of political-party alignment, is counted,” according to the instant suit.
“Plaintiffs’ expansive get-out-the-vote and voter education efforts are also burdened, even undermined, by hyper-technical rules that disenfranchise thousands of Pennsylvania voters based on an inconsequential paperwork error. Absent declaratory and injunctive relief from this court, plaintiffs and their members will suffer irreparable harm.”
The suit further comes as the question of whether or not to count undated mail-in ballots in Pennsylvania elections was litigated all the way to the U.S. Supreme Court earlier this fall.
In Ritter v. Migliori, the U.S. Court of Appeals for the Third Circuit counted 257 Lehigh County ballots missing the date on their outer envelopes in last November’s general election for a Lehigh County judgeship, the U.S. Supreme Court then later declared that decision moot.
At that time, Chapman issued a statement in response to the U.S. Supreme Court order regarding undated mail ballots.
“Every county is expected to include undated ballots in their official returns for the Nov. 8 election, consistent with the Department of State’s guidance. That guidance followed the most recent ruling of the Pennsylvania Commonwealth Court holding that both Pennsylvania and federal law prohibit excluding legal votes because the voter omitted an irrelevant date on the ballot return envelope,” Chapman said.
“Today’s order from the U.S. Supreme Court vacating the Third Circuit’s decision on mootness grounds was not based on the merits of the issue and does not affect the prior decision of Commonwealth Court in any way. It provides no justification for counties to exclude ballots based on a minor omission, and we expect that counties will continue to comply with their obligation to count all legal votes.”
The Republican Party of Pennsylvania and Republican National Committee filed to intervene in the case on Nov. 7, describing the action as “the latest salvo in a long line of attempts to persuade the courts to undo the General Assembly’s date requirement for absentee and mail-in ballots.”
“The Commonwealth Court twice has invoked the now-vacated decision in Migliori to depart from the General Assembly’s date requirement in unpublished, non-precedential cases arising out of the 2022 primary election. Finally, just last week, the Supreme Court of Pennsylvania held that the date requirement is mandatory and, thus, that any absentee or mail-in ballot that fails to comply with it is invalid. The Supreme Court of Pennsylvania therefore ordered county boards of elections ‘to refrain from counting any absentee and mail-in ballots received for the Nov. 8, 2022 general election that are contained in undated or incorrectly dated outer envelopes,” the intervenor petition stated.
“Thus, as plaintiffs acknowledge – after seven cases in five courts over two years – the current state of the law is that the General Assembly’s date requirement is mandatory and that any non-compliant absentee or mail-in ballot may not be counted in the 2022 general election and beyond. Plaintiffs now ask the Court to split from the Supreme Court of Pennsylvania and to invalidate the date requirement duly-enacted by the General Assembly and upheld after two years of litigation.”
UPDATE
On Nov. 21, the Cambria County Board of Elections responded that it would not be filing a response to the suit and would instead rely on the responses of others.
The Lancaster County Board of Elections, however, did file an answer on Jan. 4, which denied all of the complaint’s assertions and provided affirmative defenses on its own behalf.
“The Court lacks subject matter jurisdiction over this action. Plaintiffs lack standing. Plaintiffs’ claims are barred by the applicable statutes of limitations. Plaintiffs’ claims are barred by the equitable doctrines of laches, unclean hands, estoppel and/or waiver. Plaintiffs’ complaint fails to set forth a claim upon which relief can be granted. Plaintiffs’ requested relief would run contrary to the separation of powers and usurp the General Assembly’s authority,” the defenses stated.
“Plaintiffs’ claims are moot. Plaintiffs have failed to join indispensable parties to this action. The Court lacks personal jurisdiction of defendant Lancaster County Board of Elections. Plaintiffs’ claims are barred by the doctrine of res judicata and collateral estoppel. Plaintiffs’ claims are barred by the Eleventh Amendment to the U.S. Constitution. Plaintiffs’ claims should be dismissed under various abstention doctrines recognized by this Court.”
For a count of violating the Materialty Provision of the Civil Rights Act, the plaintiffs are seeking the following reliefs:
• A declaration that rejecting timely submitted mail-in ballots based solely on a missing or incorrect date next to the voter’s signature on the return envelope violates the Materiality Provision of the Civil Rights Act;
• Injunctive relief preliminarily and permanently enjoining defendants and all persons acting on their behalf from:
- Rejecting or otherwise not counting the otherwise-valid mail-in ballots timely submitted by 8:00 p.m. on Election Day based solely on a missing or incorrect date on the return envelope;
- Certifying the 2022 election in the Commonwealth of Pennsylvania or any Pennsylvania county or any subsequent election without counting such mail-in ballots.
The plaintiffs are represented by Stephen A. Loney, Marian K. Schneider, Witold J. Walczak, Richard Ting, Sophia Lin Lakin, Adriel I. Cepeda Derieux, Ari J. Savitzky and Megan Christine Keenan of the American Civil Liberties Union in Philadelphia, Pittsburgh and New York, N.Y., plus David Newmann of Hogan Lovells, in Philadelphia.
The defendants are represented by Michael Fischer and Jacob Boyer of the Pennsylvania Office of the Attorney General in Harrisburg, along with various counsel representing the county Boards of Election statewide.
U.S. District Court for the Western District of Pennsylvania case 1:22-cv-00339
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com