U.S. appeals court: Don’t count undated Pennsylvania mail ballots
Update: The U.S. Circuit Court of Appeals rejects request for rehearing
Update: The U.S. Circuit Court of Appeals on April 30 declined to rehear a case involving undated or incorrectly dated mail-in ballots. A three-judge panel in March overturned a November decision by Judge Susan Paradise Baxter of the Western Pennsylvania District allowing such ballots to be counted. Voting rights advocates had filed a brief asking for a rehearing by the three-judge panel or the full court.
A federal appeals court on Wednesday ruled that Pennsylvania cannot count undated or incorrectly dated mail-in ballots, the latest decision in a dispute that has seen conflicting court opinions at different levels since 2021.
In a 2-1 decision, the U.S. Third Circuit Court of Appeals said state law requires voters to date the outer envelope containing the ballot; not doing so means election officials should not count the ballot.
“The Pennsylvania General Assembly has decided that mail-in voters must date the declaration on the return envelope of their ballot to make their vote effective. The Supreme Court of Pennsylvania unanimously held this ballot-casting rule is mandatory; thus, failure to comply renders a ballot invalid under Pennsylvania law,” Judge Thomas L. Ambro wrote in the majority opinion. He was joined by Judge Cindy K. Chung.
In her dissent, Judge Patty Shwartz wrote, “Thus, timely received ballots cast by qualified voters that were contained in envelopes with signed declarations that have omitted or mistaken dates should have been (and should be) counted.”
Several voting advocacy groups, including the NAACP, Common Cause Pennsylvania, the League of Women Voters of Pennsylvania, and six voters in November 2022 sued the state and county election boards to require that they count undated mail-in ballots.
They cited the materiality provision of the 1964 U.S. Civil Rights Act, which “prohibits disqualifying voters due to paperwork mistakes on required forms that aren’t relevant to the voters’ eligibility,” according to the ACLU of Pennsylvania, which represented the groups.
Wednesday’s ruling overturned a Nov. 21, 2023, decision by Judge Susan Paradise Baxter of the Western Pennsylvania District, who in a 77-page opinion said the rejection of such ballots violates the Civil Rights Act because the date requirement is irrelevant in determining when the voter signed the envelope. Baxter reduced the number of defendant counties to 12, a group that included Lehigh and Northampton.
In his opinion, Ambro said the date requirement "serves little apparent purpose." But he wrote, “… 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.”
He further stated the materiality provision “leaves it to the States to decide how qualified voters must cast a valid ballot. Pennsylvania has made one such rule — the date requirement — mandatory.”
Baxter’s ruling in November 2023 led the Department of State to issue a directive to counties to count undated and incorrectly dated mail-in ballots from the Nov. 7 election. Counties had been under a 2022 directive to segregate them and not include them in their tallies.
The next month, on Dec. 6,, the Republican National Committee, the National Republican Congressional Committee and the Republican Party of Pennsylvania appealed Baxter’s ruling, in the case known as NAACP v. Schmidt, to the appeals court, which is based in Philadelphia.
GOP appeals federal judge's ruling invalidating date requirement on mail-in ballots
That led to the appeals court decision on Wednesday. The three judges, according to their biographies on the court’s website, were appointed by Democratic presidents: Ambro (President Clinton); Chung (President Biden); Shwartz (President Obama).
The ACLU said voters are the losers in this decision and it is considering what to do next.
“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,” said Ari Savitzky, senior staff attorney with the ACLU’s Voting Rights Project, who argued the case before the court.
“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.”
Philip Hensley-Robin, executive director of Common Cause Pennsylvania, said, “We are disheartened by this ruling and maintain our position that every voter who makes the effort to participate should have their vote counted. But our work will continue regardless. Though this ruling will undoubtedly have a negative impact on elderly voters and voters of color, we will work with partners to ensure that voters across the state of Pennsylvania know how to make sure their votes are counted.”
Restoring Integrity and Trust in Elections called the decision “a huge victory for election integrity.”
“Left-wing activists have spent an untold fortune trying to stop Pennsylvania from enforcing its mail ballot safeguards,” said Derek Lyons, president of RITE. “Today, a federal appellate court definitively rejected their argument. …The court’s ruling today is a clear statement that state legislatures, not courts, should make election laws.”
RITE is a group founded by Karl Rove, a senior advisor for former President George W. Bush. Its board members include William Barr, who served as former President Trump’s attorney general. The group filed a friend of the court brief in the appeal.
Michael Whatley, chairman of the Republican National Committee, called the decision “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 3rd 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,” he said.
Previous Armchair Lehigh Valley stories about mail-in ballots
Will there be more confusion over dates on mail-in ballots?
Don’t count undated ballots, PA Supreme Court says
Cohen wins Lehigh County judicial election by 5 votes
U.S. Supreme Court puts rejected ballots from 2021 judicial race back in play
Federal appeals court explains why Lehigh County must count disputed mail-in ballots
Lehigh County ties
A state law, known as Act 77, allowed no-excuse voting by mail for all voters, beginning in 2020. Voters were required to sign and date the outer envelope, which contained the ballot, and was mailed or delivered to county election offices.
The first court case where undated mail ballots became an issue originated in Lehigh County in a local judicial election in November 2021.
Republican David Ritter led Democrat Zachary Cohen by 71 votes in the election for county judge. The county then planned to count an additional 257 mail-in ballots that had been set aside because of problems with the date. That plan stopped, however, when Ritter filed a lawsuit, losing in Lehigh County Court, but winning in the state Commonwealth Court. The state Supreme Court chose not to hear the case, effectively agreeing with Commonwealth Court.
Then the ACLU, on behalf of five voters, filed a federal lawsuit (Migliori et al. vs. the Lehigh County Board of Elections) in January 2022 to require Lehigh to count the ballots.
In March 2022, Judge Joseph F. Leeson Jr. of the U.S. Eastern District Court of Pennsylvania rejected the request.
The ACLU took the case to the U.S. Third Circuit Court of Appeals and won in May 2022. That was the same court, but with different judges, that issued Wednesday’s ruling to reject improperly dated ballots.
Ritter then asked the U.S. Supreme Court to temporarily block the count, leading Justice Samuel Alito to delay any count pending further court review. But on June 9, the full court, in a 6-3 vote, declined to hear the case.
Lehigh County then counted the disputed ballots, and Cohen picked up 76 more votes than Ritter to win the judicial seat by five votes.
The six Supreme Court justices did not explain their decision. However, Alito, with Justices Clarence Thomas and Neil Gorsuch joining him, wrote a dissenting opinion saying the issue of undated ballots must be decided before the November 2022 election. It wasn’t.
Judge Ambro, in his ruling Wednesday, referenced a quote from Alito’s 2022 opinion, noting: “‘Even the most permissive voting rules must contain some requirements, and the failure to follow those rules constitutes the forfeiture of the right to vote, not the denial of that right.’”
Even though the Lehigh County judicial election was settled, Ritter sought further clarification from the U.S. Supreme Court, which in October 2022 dismissed the request but offered no clarification whether undated ballots should be counted in the future. The Supreme Court order nullified the appeals court opinion as a precedent because the judicial election had been decided.
After a Republican-led plea, the state Supreme Court on Nov. 1, 2022, ordered counties to refrain from counting any absentee and mail-in ballots with date issues that were received for the election to be held the next week. With the state court evenly divided because of a vacancy, the order did not settle the legal question over Act 77’s date provision.
That uncertainty led to the filing of the NAACP v. Schmidt lawsuit.
More than 1 million voters submitted mail ballots in the November 2022 election, Judge Shwartz wrote in her dissenting opinion. About 10,000 ballots that were received by the deadline were not counted because they had problems with the date.
Ambro, in his opinion, offered hypothetical examples why a county election board can reject a ballot.
“Suppose a county board of elections excludes a voter’s ballot from the vote tally because he cast more than the permissible number of votes. Or it sets aside a ballot because the voter revealed his identity by improperly marking the secrecy envelope containing the ballot. Is that person denied the right to vote? In both instances, the voter failed to follow a rule — like the date requirement — that renders his ballot defective under state law. We find it implausible that federal law bars a State from enforcing vote-casting rules that it has deemed necessary to administer its elections.”
Shwartz concluded her opinion by offering advice to voters and a warning:
“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.”