RNC Gets Win In Effort To Toss (Disproportionately Democratic) Mailed Ballots In Pennsylvania

A 3rd Circuit Court of Appeals panel ruled Wednesday that Pennsylvania can disregard mailed ballots that were received in time for the election but that lack a date or list an incorrect date on the outer envelope — despite all parties agreeing that election offices don’t actually use that handwritten date.

The 2-1 majority overturned a lower court which had ruled that “federal law prohibits a state from erecting immaterial roadblocks, such as this, to voting.” All three judges on the 3rd Circuit panel were appointed by Democratic presidents.

The Republican National Committee (RNC) and other Republican organizations secured a ruling from the Pennsylvania Supreme Court just before the 2022 midterms asserting that county boards of elections must disregard ballots in envelopes that are incorrectly dated or that do not include a date. As a result, per Wednesday’s dissent, 10,000 timely received ballots cast in the midterms were not counted.

The state Supreme Court made its unanimous ruling under state law, but was evenly split on whether tossing the ballots violates the federal Materiality Provision of the Civil Rights Act, meant to prohibit states from using trivial mistakes to disqualify people from voting. States had historically used such mistakes as pretext to bar Black voters from the polls.

Five Pennsylvanians whose votes were not counted in the midterms, backed by voting rights groups, brought the federal case that the panel ruled on Wednesday, arguing that the date requirement violated both the Materiality Provision and the equal protection clause of the Fourteenth Amendment. The RNC intervened, joining state election officials as defendants.

Judge Thomas Ambro, a Clinton appointee, wrote for the 3rd Circuit majority that the Materiality Provision only covers whether someone is qualified to vote, and cannot preempt state rules related to casting a ballot. In a myopically textualist reading, Ambro insisted that the Materiality Provision is limited, despite the intent of the law being to sweep away facially neutral bars to voting (indeed, as the dissent cites, disqualification on such bases continues to disproportionately disenfranchise voters of color in Pennsylvania in the present day).

Adding a layer of surrealism to the ruling, Ambro made plain that the majority finds the handwritten date requirement, which is not used at all to determine a ballot’s validity, pointless — but maintains that the thousands of ballots that will inevitably lack or have the wrong date should be thrown out.

“Pennsylvania’s date requirement, regardless what we may think of it, does not cross over to a determination of who is qualified to vote, and the Materiality Provision likewise does not cross over to how a State regulates its vote-casting process,” he wrote.

The ballots disqualified due to incorrect dates in the 2022 midterm were disproportionately Democratic, and Democrats continue to use mail-in voting more than Republicans in the state (a partisan divide in voting habits intensified by Donald Trump’s persistent and baseless demonizing of mail-in voting as unsafe). The partisan layer explains why the RNC, National Republican Congressional Committee and Republican Party of Pennsylvania intervened to argue for upholding the date requirement.

Judge Patty Shwartz, an Obama appointee, wrote in dissent that the Materiality Provision is much broader than the majority’s read, and intended to cover stages of the voting process beyond just registration.

“In a same-day registration jurisdiction, a voter could make a paperwork mistake on the registration form that the Materiality Provision would forgive,” she provided as an example. “If, however, moments later the voter made the identical mistake on another document requisite to voting, then, under the Majority’s view, the Materiality Provision would not apply and the ballot could be discarded. Such an outcome would be inconsistent with the plain meaning of the Materiality Provision and Congress’s goals in enacting it.”

She also faulted the majority for denying the intent of the provision.

“…it is illogical to conclude that Congress, who was seeking to ensure that Black Americans could vote, intended to enact legislation that only allowed Black Americans to register to vote but gave no regard to whether those same individuals could actually have their votes counted once registered,” she added.

The majority sent the case back down for the plaintiffs to argue under their equal protection challenge, which election law scholar Rick Hasen wrote may be a “tough claim to make.”

The case will likely eventually reach the Supreme Court, and could affect the 2024 election. President Joe Biden won the commonwealth by about 80,000 votes in 2020; Trump won it by about 44,000 votes in 2016. For down-ballot races, those margins are often even tighter.

“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 concluded ominously.

Read the ruling here: