PHILADELPHIA – The U.S. Court of Appeals for the Third Circuit has overturned a lower court ruling which had decided that undated mail-in ballots must be accepted as valid votes by all county boards of election in Pennsylvania, after the Republican Party’s state and national wings appealed the initial ruling – a decision likely to head to the U.S. Supreme Court on appeal and have tremendous import in November’s presidential election, which will once again see the Keystone State as a battleground.
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 in 2022, 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 not installed until 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, 2023, 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 2022’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.
On Dec. 6, 2023, intervenor-defendants including the national and state organizations of the Republican Party (who were later granted intervening status, after their initial attempt was denied) filed notice that they would appeal Baxter’s ruling of last month to the Third Circuit.
UPDATE
In a 2-1 memorandum opinion handed down Wednesday, Third Circuit judges Cindy K. Chung and Thomas L. Ambro were in favor of overturning Baxter’s ruling, while Patty Shwartz dissented from the majority.
All three judges were appointed by Democratic presidents. Judges Ambro and Chung were appointed by President Bill Clinton and President Joe Biden, respectively, while Judge Shwartz was appointed by President Barack Obama.
As author of the majority opinion, Ambro stated the Materiality Provision does not apply to rules outlining how a voter must cast their ballot for it to be officially counted.
“Section 10101(a)(2)(B) of the Civil Rights Act of 1964, called the Materiality Provision, prohibits denial of the right to vote because of an ‘error or omission’ on paperwork ‘related to any application, registration, or other act requisite to voting,’ if the mistake is ‘not material in determining whether [an] individual is qualified’ to vote. Because the date requirement is irrelevant to whether a vote is received timely, the blink response is to believe a voter’s failure to date a return envelope should not cause his ballot to be disqualified. But our role restricts to interpreting a statute, and there we hold that the Materiality Provision only applies when the State is determining who may vote. In other words, its role stops at the door of the voting place,” Ambro said.
“The Provision does not apply to rules, like the date requirement, that govern how a qualified voter must cast his ballot for it to be counted. We reach this conclusion because a contrary approach cannot be reconciled with the text and historic backdrop of the statute, nor cabined to the date requirement while leaving intact other vote-casting rules that serve valid state interests. Accordingly, we reverse the District Court’s decision and remand for further consideration of the pending equal protection claim.”
In her dissent, Shwartz said that her majority colleagues’ finding meant that “from a practical perspective…the State may toss a ballot cast by a qualified voter based upon mistakes on required paperwork immaterial to determining voter qualifications.”
“Today’s ruling is a clear reminder that all voters must carefully review and comply with every instruction and requirement imposed upon them. If they do not, they risk having their otherwise valid votes discounted based on even the most inconsequential mistake. One can only hope that election officials do not capitalize on the majority’s narrow interpretation of the Materiality Provision by enacting unduly technical and immaterial post-registration paperwork requirements that could silence the voices of qualified voters,” Shwartz said.
Republican National Committee Chairman Michael Whatley applauded the ruling.
“This is a crucial victory for election integrity and voter confidence in the Keystone State and nationwide. Pennsylvanians deserve to feel confident in the security of their mail ballots, and this Third Circuit ruling roundly rejects unlawful left-wing attempts to count undated or incorrectly dated mail ballots. Republicans will continue to fight and win for election integrity in courts across the country ahead of the 2024 election,” Whatley said.
ACLU Pennsylvania Executive Director Mike Lee cautioned that this ruling could cause “thousands” of voters statewide to be disenfranchised.
“If this ruling stands, thousands of Pennsylvania voters could lose their vote over a meaningless paperwork error. The ballots in question in this case come from voters who are eligible and who met the submission deadline. In passing the Civil Rights Act, Congress put a guardrail in place to be sure that states don’t erect unnecessary barriers that disenfranchise voters. It’s unfortunate that the court failed to recognize that principle. Voters lose as a result of this ruling,” Lee stated.
ACLU Voting Rights Project senior staff attorney Ari Savitzky concurred.
“The thousands of voters affected here are eligible and registered. They completed their mail ballots, signed the return envelope and got their ballots in on time. Their votes should count. We strongly disagree with the panel majority’s conclusion that voters may be disenfranchised for a minor paperwork error like forgetting to write an irrelevant date on the return envelope of their mail ballot. We are considering all of our options at this time. And we will not stop fighting for voters,” Savitzky said.
Any appeal of the Third Circuit’s ruling would be headed to the U.S. Supreme Court.
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