Eisen/Wertheimer Op-Ed On Slate: Pennsylvania’s Law Is Clear — Absentee Ballots Should Be Counted
The following op-ed by Amb. Norman Eisen (ret.) and Democracy 21 President Fred Wertheimer was published today on Slate.
Slate | 11/8/2022
The Fate of the Midterms Could Rest in a Pennsylvania Courtroom
By: Norman L. Eisen and Fred Wertheimer
Under the radar, a state court issued an opinion last week that could prove decisive in a pivotal swing state—and potentially nationally. A Pennsylvania Supreme Court deadlock on the question of setting aside incorrectly dated mail-in ballots may affect results in the Pennsylvania midterm election, which could also determine control of the U.S. Senate.
The law is clear that the ballots should be counted.
But with the death of a key swing justice, the court tied 3-3 and was unable to order counting the ballots. Two new federal cases on this issue have already been filed. In a state with likely thousands of incorrectly dated absentee ballots and races that may be decided by close margins, the resolution of these court cases (together with other emerging issues) may decide critical midterm races.
This past May, in a case concerning mail-in ballots from a November 2021 county judicial election, the 3rd U.S. Circuit Court of Appeals held that enforcing the requirement that mail-in ballots have dated outer envelopes violates a provision of the Civil Rights Act. That provision, the “Materiality Provision,” states the right to vote shall not be denied because of an “error or omission” by a voter that is “not material” to determining whether they are “qualified” to vote.
Two weeks later, in June, the U.S. Supreme Court declined to stay the case pending a grant of certiorari. Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch stated they would have granted the stay because the “Third Circuit’s interpretation broke new ground” and “is very likely wrong.” Then, in July, David Ritter—the state judicial candidate who had lost—filed a cert petition with the U.S. Supreme Court requesting dismissal of the case, Migliori v. Cohen, as moot because last year’s election results had already been certified.
On October 11, 2022, the U.S. Supreme Court granted Ritter’s request, vacated, and remanded Migliori to the 3rd Circuit, with instructions to dismiss it as moot. In response to the order, Acting Pennsylvania Secretary of the Commonwealth Leigh Chapman issued a statement that “every county is expected to include undated ballots in their official returns for the Nov. 8 election, consistent with the [Pennsylvania] Department of State’s guidance.”
Soon after, on October 16, the Republican National Committee, National Republican Congressional Committee, and Republican Party of Pennsylvania requested the Pennsylvania Supreme Court to stop the counting of mail-in ballots with undated or incorrectly dated outer envelopes in the upcoming midterm election. They did so through a method that allows the Pennsylvania Supreme Court to fast-track cases without lower court proceedings.
Last Tuesday, one week before the midterm elections, the Pennsylvania Supreme Court split 3-3 in Ball v. Chapman on whether stopping the count would violate the Materiality Provision of the Civil Rights Act. The court ordered that election officials not count any absentee and mail-in ballots that have “undated or incorrectly dated outer envelopes,” and that those ballots be separated and preserved. The court cites a Pennsylvania statute which says of mail-in voters, “the elector shall then fill out, date and sign the declaration printed on [the] envelope.”
On Thursday, the Pennsylvania Department of State issued guidance in response to the Pennsylvania Supreme Court’s Nov. 1 order. The guidance states that received mail-in ballots shall be immediately scanned upon receipt, to add a time-stamp, and then “examin[ed to] determine if the return envelopes for those ballots are signed and dated.” If not, they will be coded in the election database to reflect this and “segregated from other ballots.” The Department recommends organizing these ballots alphabetically by precinct and to divide them into undated ballots and incorrectly dated ballots.
On November 4, 2022, a coalition of civil rights groups sued Pennsylvania elections officials in federal court, arguing the Materiality Provision of the Civil Rights Act requires that undated mail-in ballots be counted. The case has been assigned to Judge Susan Paradise Baxter, a Trump appointee, in the Western District of Pennsylvania. On Election Day, a group of Pennsylvania voters along with John Fetterman’s Senate campaign and Democratic political committees brought a similar lawsuit in a separate case in the same district.
Both complaints request a preliminary and permanent injunction enjoining defendants from rejecting these ballots. (No preliminary injunction motion has yet been filed however.) They also both invoke the same reasoning that the 3rd Circuit applied in Migliori: the date requirement is not material to determining voter qualifications. According to the plaintiffs in the civil rights coalition’s complaint, mail-in voter qualifications are determined at the time the voter is issued a mail in ballot, and the date on the envelope is immaterial to determining the ballot’s timeliness because under Pennsylvania law, a ballot is timely if it is received by 8 p.m. on Election Day. Similarly, the plaintiffs in the Fetterman complaint assert that “[b]ecause Pennsylvania law determines voter eligibility based on the date of the election—rather than the date of marking the ballot—the [d]ate [on the envelope] provides no information about whether a voter is qualified.”
Meanwhile, in Ball v. Chapman, the Pennsylvania Supreme Court clarified in a Saturday supplemental order that “incorrectly dated outer envelopes” that must be segregated include ballots that fall outside the voting period date range. This led to another challenge by a Pennsylvania county, arguing its ballots were sent out after the beginning of the date range and those votes dated prior to the ballot delivery shouldn’t be counted. The court rebuffed them, but the skirmish shows a lot of balls are still up in the air.
There are other complicated legal issues in Pennsylvania that could make a further difference. In Philadelphia, extra precautions that the city is taking relating to “poll book reconciliation” may slow the final count of votes. These steps are being taken to ensure that people who vote by mail do not also vote in person. While there have been no such double votes in the last three elections in Philadelphia, the city decided to add an extra layer of review in an abundance of caution saying that they felt obligated by a court decision, even though it had been interpreted as allowing them to drop the practice. This extra precaution is a good thing, not a bad one. But it may delay a final tally in the city, feeding the fever dreams of election deniers and conspiracy theorists who wrongly assert that counting after early Wednesday morning looks “very suspicious.” The issue has already stimulated litigation, and it remains to be seen whether more will ensue.
By contrast, we can be pretty sure that the undated ballot issue is likely to garner substantial continued court attention. Given that both the civil rights coalition and the plaintiffs in the Fetterman complaint are seeking preliminary and permanent injunctive relief, subsequent emergency motions and appeals are likely after the election. The closer the election is, the more likely further litigation will be to advance. The 3rd Circuit has already correctly held that not counting such ballots violates the Materiality Provision; the failure to affix a date simply does not raise an issue as to voters’ qualifications.
Accordingly, at least the trial court and likely the circuit panel should so rule again. If the Western District of Pennsylvania and the Third Circuit permit counting undated ballots, we should expect another appeal on this issue to the Supreme Court. They may or may not take the case (they passed on it last time) on the merits. But if they do, hopefully they will take this same common-sense approach to the Materiality Provision as well.
Norman L. Eisen served as White House ethics czar and ambassador to the Czech Republic under President Barack Obama as well as as special counsel to the House Judiciary Committee from 2019–20, including for the first impeachment and trial of President Donald Trump.
Fred Wertheimer is the founder and president of Democracy 21, a nonpartisan, nonprofit organization that works to strengthen America’s democracy.
