ERIE – A federal judge has turned away an intervening Republican attempt to dismiss litigation brought by six voters’ rights groups against Secretary of the Commonwealth Al Schmidt 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 last September and has not yet 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 came 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 last year.
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.”
The Republican intervenor defendants filed a motion to dismiss the case on Jan. 17. In that dismissal motion, the Republican intervenors argued the “mandatory application of the Date Requirement is not implicated by and does not violate the Federal Materiality Provision” and “argue that the application of the Date Requirement does not violate the Fourteenth Amendment because there is no differential treatment and even if there is, the Date Requirement passes constitutional muster.”
UPDATE
On June 8, U.S. District Court for the Western District of Pennsylvania Judge Susan Paradise Baxter rejected that same dismissal motion in a memorandum opinion.
“Plaintiffs allege that they were (1) Denied the right to vote when their ballots were not counted; (2) Because of an incorrect date on or a failure to date; (3) The outer Return Envelope required to cast a mail-in ballot and (4) That this date is not material to determining their qualifications to vote. In making a determination as to whether plaintiffs have stated a claim, this Court must accept the veracity of the well-pleaded factual allegations and view them in the light most favorable to plaintiffs. Here, plaintiffs have met all the basic requirements in order to state a claim as they have factually supported each of the components of the claim,” Baxter said.
“In their motion to dismiss, the intervenor defendants contend that the application of the Date Requirement does not implicate, let alone violate, the Materiality Provision. Intervenor defendants make several arguments in this regard. These arguments are based almost exclusively on a dissent from the denial of an application for stay at the U.S. Supreme Court. Indeed, the majority of the legal citation in their brief is to this dissenting opinion. Intervenor defendants take the dissenting opinion and extrapolate their reasoning therefrom. This Court is not swayed by such arguments at this stage in the proceedings because they find their genesis in an opinion that carries little, if any, precedential weight.”
Though the intervenor defendants argued that the Materiality Provision does not apply because the Date Requirement is only a rule for casting a ballot and is not a ballot itself, Baxter said this ran contrary to both the statutory text and a recent Supreme Court of Pennsylvania ruling in Ball v. Chapman, which stated: “We recognize that, although the Court’s rationale was expressed in serial opinions, an undeniable majority already has determined that the Election Code’s command is unambiguous and mandatory, and that undated ballots would not be counted in the wake of In re 2020 Canvass. This result was apparent from the face of the opinions. Four justices agreed that failure to comply with the date requirement would render a ballot invalid in any election after 2020. Pennsylvania’s candidates, electors, and local officials therefore were on notice that ballots must be dated, and that failure to provide a date would result in disqualification.”
“Because Pennsylvania law, as interpreted by the Supreme Court of Pennsylvania, mandates compliance with the Date Requirement for a mail-in ballot to be counted, the Date Requirement is subject to the Materiality Provision in this regard. Next, they argue that because the Date Requirement does not result in a qualification determination, it is outside the scope of the Materiality Provision. Intervenor-defendants’ focus is too narrow. The Materiality Provision is implicated when a ballot is not counted because of an error on voting-related paperwork that is not material to determining qualifications of the voter…The language defining ‘vote’ in the text of the Materiality Provision is broad and far-reaching. Certainly, Congress’ expansive definition of the word ‘vote’ includes dating a return envelope,” Baxter explained.
“Finally, intervenor defendants argue that the Date Requirement is not a ‘record or paper relating to any application, registration, or other act requisite to voting’ within the meaning of the federal statute. They explain that because Pennsylvania law equates completing the declaration on the outer Return Envelope with casting a ballot, the Date Requirement cannot be requisite to the act of voting – instead, it is voting. This Court disagrees with the intervenor defendants’ interpretation in this regard. The ballot itself is the vote and the outer Return Envelope is requisite to, or essential to, completion of the act of voting. At this stage of the proceedings, accepting the veracity of their factual allegations. Plaintiffs have sufficiently stated a plausible claim for relief.”
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, Kate Steiker-Ginsberg, Marian K. Schneider, Witold J. Walczak, Richard Ting, Sophia Lin Lakin, Adriel I. Cepeda Derieux, Ari J. Savitzky, Luis Manuel Rico Roman and Megan Christine Keenan of the American Civil Liberties Union in Philadelphia, Pittsburgh and New York, N.Y., plus Brittany C. Armour, David Newmann and Elizabeth D. Femia 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