A U.S. appeals court in Philadelphia heard arguments Tuesday on whether Pennsylvania’s requirement for voters to accurately date mail-in ballots passes muster under federal voting law.
The question of whether ballots with a missing or incorrect date should be counted has been a factor in elections since Pennsylvania’s no-excuse absentee voting law took effect in 2020. And the outcome of the case now before the U.S. Third Circuit Court of Appeals will determine how such ballots are handled in the 2024 presidential election in which Pennsylvania is considered a must-win state.
John Gore, a Washington, D.C., lawyer representing the national and state Republican parties asked the three-judge panel to reverse a lower court’s decision in favor of the American Civil Liberties Union, voting rights groups and five individual voters who sued to stop ballots with missing or incorrect dates from being discarded.
Erie-based U.S. District Judge Susan Paradise Baxter ruled last year that election officials may no longer reject ballots that lack a date or have an incorrect date on the outside of the return envelope. Baxter found that throwing out ballots over the dating requirement violates a federal law against disenfranchising voters with requirements not material to their qualifications to vote.
"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,” Baxter wrote.
Lawyers for the ACLU, the NAACP, League of Women Voters, and other organizations and for Pennsylvania Secretary of State Al Schmidt argued that the lower court’s decision is correct.
Ari Savitzky, who represented the voter groups, told the court that in the 2022 election, more than 10,000 Pennsylvania voters were denied the right to vote based on meaningless paperwork mistakes.
The materiality clause contained in the Civil Rights Act of 1964 prohibits officials from preventing people from voting because of an error or omission "on any record or paper relating to any application, registration, or other act requisite to voting,” unless it is material to the person’s qualification to vote.
U.S. Circuit Judge Thomas Ambro suggested to Savitzky that the materiality clause contained in the Civil Rights Act of 1964 makes a distinction between registering to vote and actually casting a ballot, adding that the original goal of the law was to prevent discrimination that kept Black voters from registering to vote.
Savitzky agreed but argued that the law was intended to prevent discrimination that would interfere with the right to cast a ballot or any action needed to make a vote count.
"What Congress recognized based on that extensive record was that there needed to be a broad prohibition against using irrelevant immaterial paperwork errors to deny the right to vote, and that is why Congress identified any error or omission on any record or paper relating to an application,” Savitzky said.
U.S. Circuit Judge Cindy Chung suggested that the states have a legitimate interest in rejecting ballots that contain errors, such as votes for both candidates in a presidential election, or that include marks that could facilitate fraud or identify the voter.
"Who are we as a federal court to review those decisions if the legislature has decided that there is a legitimate state interest?” Chung asked.
Savitzky said the case before the court is about errors on a declaration form, not ballots themselves.
"It’s an immaterial mistake on a piece of paperwork. It doesn’t go to the deficiency or the validity of the ballot itself. It’s a different question,” Savitzky said.
Gore argued Tuesday that the materiality clause does not preempt all state voting laws dealing with paperwork.
"Rather, Congress remedied a serious and specific problem: Election officials preventing eligible individuals from registering to vote through misapplication of voter qualification rules,” Gore said.
The requirement to date the declaration that voters filled out ballots themselves is distinct from determinations election officials make about people’s qualifications to vote, such as residence, age and felony status, Gore argued. And dating the envelope is material to a voter’s qualification to vote because it helps election officials affirm the voter’s identity.
"The date requirement along with the signature requirement performs a ritual function; it signifies to the voters the solemn significance of completing and submitting the ballot,” Gore said, adding that because election officials are prohibited under Pennsylvania law from comparing signatures with those on record, the date is the only voter-supplied piece of information that officials can check.
In her November opinion, Baxter found that the date is not material to the voter’s qualifications because none of the counties where undated ballots were set aside in the 2022 general election used the date on the envelope to determine whether it was received by the deadline. Rather, the date a ballot is received is recorded by the statewide election management system when the barcodes on the envelopes are scanned upon return, her opinion said.
"In this case, we have an evidentiary record by a group … of different public officials who testified that the date is material to nothing,” U.S. Circuit Judge Patty Shwartz said. "So you’re asking us to give it import despite the fact the election officials are saying it’s material to nothing, correct?”
Gore cited the case of a Lancaster County woman who was convicted of forgery for submitting her dead mother’s ballot and dating the voter declaration 12 days after she died. Shwartz noted that election officials had actually flagged the ballot because the woman’s mother had been removed from voter rolls three days before the ballot was received. In that case, Shwartz said, the date on the ballot was used to prosecute the woman.
"That’s precisely our point as to why the date requirement doesn’t fit within the materiality provision because it’s not for qualification,” Gore said, adding, "They’re just used to determine the validity of the ballot. The district court didn’t really find otherwise.”
