A Win for Election Law in the Critical State of Pennsylvania

Under Pennsylvania law, mail-in and absentee voters must sign and date the declaration printed on the return envelope containing their mail ballot.  The Pennsylvania Supreme Court set aside those ballots leaving the Federal Courts the question as to whether the Materiality provision would prevent the voiding of the ballots.  The Materiality provision was summarized by the Circuit Court as:

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.

The Third Circuit Appellate Court ruled 2-1 on March 27th, upholding Pennsylvania’s rules for voting by mail that require dates to be on mailed ballots and found that the Materiality provision did not apply to the act of voting a ballot. As a result, improperly dated or undated ballot envelopes cannot be counted.  The Circuit Court majority opinion stated:

[The Pennsylvania Supreme Court] unanimously agreed the command in Pennsylvania’s Election Code that mail-in voters shall date the declaration was unambiguous and mandatory as a matter of statutory interpretation; so omitting the date, or incorrectly dating the return envelope, “render[s] a ballot invalid” under Pennsylvania law.  The Court also rejected the argument that a declaration with an incorrect date was “sufficient,” reasoning that “[i]mplicit in the Election Code’s textual command . . . is the understanding that ‘date’ refers to the day upon which an elector signs declaration.”  Id. at 22.  So, under Pennsylvania law, non-compliant ballots are invalid.  The Court evenly divided, however, on whether failing to count non-compliant ballots violated the Materiality Provision. Id. at 9.  That question thus was bound to return to us.

Summarizing the Circuit Court's analysis of the Materiality provision, the court evaluated whether the Materiality provision would apply to prevent disqualification of the ballots and found that the Materiality provision prohibits States from denying an applicant the right to vote in cases where immaterial errors or omissions were found.  The court determined that, after registration, when it is time for the voter to exercise their actual right to vote, this act of voting no longer has anything to do with the Materiality position.  The voter has not been denied their right to vote and so now the voter must follow the rules to properly vote under state law.

Importantly, this finding was supremely logical and defensible.  It will be difficult for a higher court to try to extend the Materiality provision to the act of voting itself.

Looking forward to the potential for appeal, the Supreme Court is near the end of its hearings for cases this term and would not, in the ordinary course, grant certiorari and hear this case prior to the coming November election.  This means that the only path of appeal prior to the next election is a request for an En Banc hearing, which is a hearing where all the Circuit Judges participate and potentially any Senior Judge that participated in the case.  In this case, we expect that to mean the full panel of Circuit Judges, where currently the 3rd Circuit has one more conservative appointed judge relative to democrat appointed judges.  To have the Circuit Court grant an En Banc hearing, a majority of the judges would need to vote in support.  Given the slight Republican advantage, we can hope that this would be denied, but traitors are common so we shall see.  Hopefully the sound logic of the case deters excessive further political meddling.

The appeal must be filed by April 10th.

In the event this holds up, whether this will meaningfully reduce fraud in Pennsylvania remains unclear.  Drop boxes still exist; fraud will persist, but this should help reduce fraud.

Asking fraudsters to sign and date a ballot envelope in addition to the ballot itself is a disincentive to illegal voting. Signing a made-up signature twice may trigger a mismatch as it isn’t a practiced signature.  Further, given the mysterious ballots added in bulk drops, these extra steps may expose fraud as errors and omissions can happen when falsifying documents in larger quantities and the extra step can slow the process of cheating, reducing the number of illegal votes.
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