ERIE – After a federal judge recently decided that undated mail-in ballots must be accepted as valid votes by all county boards of election in Pennsylvania – a decision to have tremendous import in next year’s presidential election, which will once again likely see the Keystone State as a battleground – the Republican Party’s state and national wings have appealed that decision.
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, 2022 versus then-Secretary of the Commonwealth Leigh M. Chapman (later replaced upon her departure from office by current Secretary Al Schmidt) and the Boards of Election for all 67 Pennsylvania counties.
The litigation was initially filed only three days after the Supreme Court of Pennsylvania ruled to leave undated mail-in ballots uncounted last year, siding with Republicans who brought a lawsuit in the matter.
However, that body’s judges did not find consensus on whether issuing a mandate on the envelope dates, as per Pennsylvania state law, would violate the Materiality Provision of the federal Civil Rights Act of 1964 – which states that immaterial errors or omissions should not be utilized to prevent citizens from voting.
Among the six state Supreme Court justices, three Democratic justices (now-Chief Justice Debra Todd, Christine Donohue and David N. 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 at that time since former Chief Justice Max Baer, a Democrat, passed away in September 2022 – and the next state Supreme Court Justice, Daniel D. McCaffery, was not elected until this past November and will be installed in January.
“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 November 2021’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 November [2022] 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.
“[The] 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 instant case on Nov. 7, 2022 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” – however, U.S. District Court for the Western District of Pennsylvania Judge Susan Paradise Baxter rejected that petition for intervention last June.
Furthermore and in response to cross-motions for summary judgment between the parties, Baxter issued a memorandum opinion on Nov. 21 which unanimously found in favor of the plaintiffs and decided that undated mail-in ballots must be accepted as legitimate votes, if they are received by their specified deadline time.
In her ruling, Baxter found that county boards of election will not be permitted to reject mail ballots which lack accurate, handwritten dates on their return envelopes. Though the inclusion of the date is mandated by Pennsylvania state law, Baxter opined that information was “wholly irrelevant” when elections officials are deciding whether the ballot in question was received in a timely fashion or whether the voter may legally cast a ballot.
“The important date for casting the ballot is the date the ballot is received. Here, the date on the outside envelope was not used by any of the county boards to determine when a voter’s mail ballot was received in the November 2022 election. Instead, the counties time-stamped ballots when they were returned. The lack of a date next to the voter declaration on the return envelope was not material to the determination of when the ballot was received,” Baxter said.
“Irrespective of any date written on the outer Return Envelope’s voter declaration, if a county board received and date-stamped a 2022 general election mail ballot before 8 p.m. on Election Day, the ballot was deemed timely received under the Commonwealth’s Election Code. On the other hand, if the county board received a mail ballot after 8 p.m. on Election Day, the ballot was not timely and was not counted, despite the date placed on the Return Envelope.”
More than 7,600 ballots cast across 12 Pennsylvania counties – counties who were also named as defendants in the suit – in last year’s midterm elections were rendered invalid because their outer envelopes lacked a date or listed an incorrect date, according to the ruling.
After former President Donald Trump claimed that mail-in voting was filled with fraud in the 2020 Presidential Election, the Republican Party, both in Pennsylvania and at a national level, has litigated extensively against the practice.
Baxter, the presiding judge in this matter, was appointed by Trump.
Members of plaintiff counsel from the American Civil Liberties Union applauded Baxter’s ruling.
“Every eligible person who casts a ballot should have their vote counted. The handwritten-date requirement is completely irrelevant and unnecessary because elections officials know whether the ballot was received on time. And the whole point of this provision in the Civil Rights Act was to stop states from disqualifying votes for frivolous reasons, like this date requirement. We’re grateful that the court understood that,” ACLU Pennsylvania Legal Director Witold J. Walczak said.
Fellow counsel from the ACLU’s Voting Rights Project, Ari J. Savitzky, concurred.
“The right to vote is sacred. Throwing out valid votes because of a minor paperwork error is undemocratic and illegal. This ruling ensures that Pennsylvanians who vote by mail, including senior citizens and voters with disabilities, will not face disenfranchisement because of a trivial mistake in handwriting an irrelevant date on the outer return envelope. Federal law requires nothing less, as the court’s decision makes crystal clear,” Savitzky said.
UPDATE
On Dec. 6, intervenor-defendants including the national and state organizations of the Republican Party filed notice that they would appeal Baxter’s ruling of last month.
“Notice is hereby given that intervenor-defendants, the Republican National Committee, National Republican Congressional Committee and Republican Party of Pennsylvania appeal to the United States Court of Appeals for the Third Circuit from the judgment entered in this case on Nov. 29, 2023. This appeal is taken under 28 U.S.C. Section 1291,” according to the notice.
According to 28 U.S.C. Section 1291, “The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court.”
The plaintiffs were 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 were represented by Michael Fischer, Jacob Boyer, Elizabeth Lester-Abdalla and Kathleen A. Mullen of the Pennsylvania Office of the Attorney General in Harrisburg, Robert Wiygul and John B. Hill of Hangley Aronchick Segal Pudlin & Schiller in Philadelphia, along with various counsel representing the county Boards of Election statewide.
The intervenor-defendants are represented by Thomas W. King III and Thomas E. Breth of Dillon McCandless King Coulter & Graham in Butler, Kathleen A. Gallagher of The Gallagher Firm in Pittsburgh, plus John M. Gore, E. Stewart Crosland and Louis J. Capozzi III of Jones Day, in Washington, D.C.
U.S. Court of Appeals for the Third Circuit case 23-3166
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