Pa. mail ballot fight in U.S. Court of Appeals

Years of litigation and tax dollars later, officials are still asking if putting the correct date on a by-mail ballot matters.

• Jordan Wilkie/WITF
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  As the democracy reporter for WITF, I will cover any kind of story that has to do with how we govern ourselves. That will include doing a lot of election coverage about how to access the ballot, how public officials administer elections, the technology used to run and secure elections, and the laws that govern it all.
  
  My work will also include accountability coverage for elected officials that use their positions to then undermine democratic institutions, like the legislators that voted against the certification of the presidential election results on January 6, 2021. If that weren’t enough, I foresee covering some local government decisions, fights over public records and transparency, and some candidate coverage in 2024. Many stories can have a “democracy frame” meant to help us all understand how our governments work and how we can shape them.
  
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 Matt Smith / For Spotlight PA

Voter registration worker Sharon Schoemaker sorts mail ballots at Lehigh County Government Center in Allentown, Pennsylvania on Nov. 7, 2023.

Update April 30, 2024:

On March 27, the three-judge panel on the 3rd Circuit Court of Appeals ruled mail ballots without a date cannot be counted under the materiality provision in the Civil Rights Act. But the judges sent the case back to the federal district court to consider whether rejecting those ballots violates the Equal Protection Clause of the U.S. Constitution. 

On April 11, the ACLU asked the full 3rd Circuit to consider the case. On April 30, the full circuit declined, letting the three-judge panel’s ruling stand.

Previously reported:

Potentially thousands of votes in the 2024 elections are on the line in an upcoming federal court decision. 

After Tuesday’s hearing, the three-judge panel at the U.S. Court of Appeals Third District will now decide if Pennsylvania can dismiss mail-in ballots with incorrect or missing dates on the return envelope. The judges set no timetable for their decision.

Since the midterm elections, civil rights groups have been arguing with the Republican national and congressional committees in state and federal courts about the importance of putting a date on a mail ballot return envelope in order for the votes inside to be counted . 

“In 2022, over 10,000 Pennsylvanians were denied the right to vote based on a meaningless paperwork error,” argued Ari Savitksy, the lawyer representing the PA NAACP and other plaintiffs, during the hearing. 

At issue is one little box on the return envelope where voters are expected to write the date they filled out their ballot. Sometimes, people mistakenly put their birthdate, the date of the election, or nothing at all. 

John Gore, a lawyer for the Republican groups, argued it is just as important, if not moreso, to get the date right as it is to add a signature on the return envelope. The purpose is to ensure the right voter marked the right ballot. It’s not disenfranchisement, he said, if voters fail to follow the instructions for returning the ballot. 

The state legislature could revise the law to solve the issue, but has failed to address this or similar legal disputes around by-mail voting for years. 

The arguments that lead to the current case began in state court two years ago when the executive branch, through the Secretary of the Commonwealth, gave guidance to counties that they could count ballots with mistaken or omitted dates. 

By that time, voting methods had already become partisan indicators around the country. Democratic candidates widely used mail-in voting as a turnout strategy while Republicans continued to give voice to conspiracy theories popularized by then-President Donald Trump in 2020 that by-mail voting was a security risk. 

The Republican National Committee, the National Republican Congressional Committee and the Republican Party of Pennsylvania sued in state court to block the acceptance of by-mail ballots with incorrect or omitted dates in 2022, and they won on state law questions. 

On the question of whether dismissing votes due to a date error violated federal law, the state supreme court was evenly split and therefore undecided, opening the door for a case in federal court.

In November 2022, the Pennsylvania NAACP, along with other civil rights groups, sued the state and county election offices in federal court. A year later, U.S. District Judge Susan Paradise Baxter, a Trump appointee, ruled rejecting ballots for incorrect dates violated the “Materiality Provision” of the Civil Rights Act.

The state Republican party and national committees, who intervened in the case as defendants, appealed the decision to the Third Circuit Court of Appeals, where the case was heard on Tuesday. 

But during the hour-and-a-half hearing, all three judges had questions about the importance of the date on the envelopes. The plaintiffs argue the date is “immaterial” since the ballot is only available within the legal voting window anyway. 

“In this case we have an evidentiary record by a number of different public officials who testified that the date was material to nothing,” said Judge Cindy Chung. All three judges on the panel were appointed by Democratic presidents. 

Both the Pennsylvania Secretary of the Commonwealth and the U.S. Department of Justice joined the case to argue in favor of ignoring errors and omissions on the date field on the return envelope. 

The judges pushed those parties to define the limit to federal courts ruling on state voting procedures set by state legislatures. Gore pressed on this point, arguing the civil rights groups have “no limiting principle” in their proposed use of the materiality provision in the Civil Rights Act.  

Voters from  both major political parties had their by-mail ballots rejected in 2022 due to the date rule. But unspoken in court arguments is how it hurt Democrats more than Republicans.

Democrats use by-mail voting at much higher rates. In the 2022 race for governor, 34% of votes for Democrat Josh Shapiro were cast by-mail compared to 8% for Republican Doug Mastriano. Over 1.2 million Pennsylvanians cast ballots by-mail in the 2022 general elections.

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