The Commonwealth Court of Pennsylvania ruled in favor of Dave McCormick’s petition for a “judicial declaration that ‘timely returned absentee and mail-in ballots may not be rejected due solely to the lack of a date in the declaration on the exterior envelope’” and a special injunction directing various county boards to count such ballots. McCormick argued both state and federal grounds, maintaining that “the dating provisions set forth in Sections 1306(a) and 1306-D(a) of the [PA] Election Code are not material to determining the qualifications of that voter under federal and Pennsylvania law.” In terms of the state law ground, McCormick emphasized that the Pennsylvania Constitution requires that “the Election Code is to be liberally construed so as not to deprive voters of their right to elect a candidate of their choice.”
The Commonwealth Court ruled McCormick is likely to succeed on the merits with respect to both arguments–ordering counties, inter alia, “to provide two vote tallies to the Acting Secretary, one that includes the votes from those ballots without a dated exterior envelope and one that does not” so that “when a final decision on the merits of whether the ballots that lack a dated exterior envelope must be counted or not, the Acting Secretary will have the necessary reports from the County Boards.”
For those who are curious, Ritter v. Miliori itself had muddied the legal rules for the recount. This is because the Third Circuit’s decision does not strictly speaking bind Pennsylvania officials. The PA Department of of State, however, does believe its underlying logic should be applied and has issued an advisory opinion urging counties to segregate and count. Counties, however, can and are following their own rules about whether to include the undated ballots in their final vote tally, leading to additional uncertainty about the exact state of the election–for the moment.
The Supreme Court issued an administrative stay in Ritter v. Migliori, the recent Third Circuit decision that determined that mail-in ballots that arrived without the necessary date should be counted. It will be interesting to see how long it takes for the Court to make its final decision on the emergency application and what impact it will have on the recount in the Pennsylvania Republican primary.
The Third Circuit was “asked to determine if a date on the outside of a mail-in ballot, required under state law, is material to the voter’s qualifications and eligibility to vote” for purposes of the Materiality Provision of the Civil Rights Act. That provision “prohibits any ‘person acting under color of law [from] deny[ing] the right of any individual to vote in any election because of an error or omission … if such error or omission is not material in determining whether such voter is qualified … to vote in such election.’” In a decision written by Judge McKee, the Third Circuit held the date was not material.
United States Court of Appeals for the Third Circuit ruled to today, in Migliori et al v. Lehigh County Board of Elections–a case brought by the American Civil Liberties Union–that 257 mail-in ballots that had been excluded from the 2021 general election because voters had not handwritten a date on the outer return envelope had to be counted. The full impact of the decision is unclear because the opinion is yet to be issued, but commentators expect it to have immediate impact. Most importantly, the decision stands at odds with state court decisions on the same issue.
From the Philadelphia Inquirer:
“State law requires voters to sign and date the outside mailing envelope when they return their mail ballots, and state courts have held that the requirement means undated ballots must be rejected. But throwing out those votes violates the federal Civil Rights Act, the ACLU argued, because the date isn’t actually used in determining the legitimacy of a vote.
. . .
The U.S. Court of Appeals for the Third Circuit agreed Friday, declaring the date requirement in state law is immaterial under the Civil Rights Act — meaning it can’t be used as a reason to reject ballots.”
Marian Schneider, senior voting rights policy counsel for the ACLU of Pennsylvania, says, “The potential implications of this ruling are significant, and we look forward to reviewing the court’s full opinion. One percent of Lehigh County’s mail and absentee voters in the 2021 general election submitted their ballots on time but forgot to handwrite the date on their return envelopes. In a statewide, high-turnout election, disqualifying those ballots could disenfranchise tens of thousands of otherwise eligible voters.”
Philadelphia Inquirer reports that a printing error has caused problems with the processing of a not insignificant number of mail-in ballots in Lancaster County. Too bad, however, that this is being used as an excuse to oppose the 2019 expansion of no-excuse absentee voting in PA–rather than to reconsider the printing companies that are being used.
“An error by a company that prints ballots for several Pennsylvania counties caused thousands of mail-in ballots to be unreadable Tuesday as voters were deciding hotly contested primaries for governor and U.S. Senate in one of the nation’s most important battleground states.
Officials in Lancaster County, the state’s sixth most populous, said the problem involved at least 21,000 mailed ballots, only a third of which were scanning properly. The glitch will force election workers to redo ballots that can’t be read by the machine, a laborious process expected to take several days. Officials in the GOP-controlled county pledged that all the ballots will be counted eventually.”
This weekend, I’ll blog about some recent election law scholarship. I thought I’d start by highlighting a few student notes that caught my eye in recent weeks:
Kyle Apple (Iowa), Gerrymandering the Presidency: Why Federal District Popular Voting Presents a Problematic Alternative to the Winner-Take-All Electoral College
Rowan E. Conybeare (North Carolina), Did the COVID-19 Pandemic Finally Force North Carolina To Protect Marginalized Communities’ Right To Vote, or Did History Repeat Itself?
Tanner Hensen (Wake Forest), North Carolina’s Redistricting Saga
Devin Humphreys (Notre Dame), After Further Review: Towards a Rebuttable Presumption in Favor of Ballot Validity
Nicholas LeFevre (Texas Tech), The “Burlap” Blindfold: Increasing Transparency In State Judicial Elections Through Updated Candidate Solicitation Laws
Jason Nagel (Cardozo), Standardizing State Vote-by-Mail Deadlines in Federal Elections
Jackie Rosen (Utah), Religious Gerrymandering: A New Avenue for Redistricting Challenges?
Kate Uyeda (Vanderbilt), Challenging the Challengers: How Partisan Citizen Observers Contribute to Disenfranchisement and Undermine Election Integrity
Connecticut Public Radio:
A bill that would allow out-of-town commuters and caretakers of the disabled or chronically ill to vote by absentee ballot won final legislative passage Wednesday on a 30-4 vote in the Senate.
The measure stops short of allowing no-excuse absentee voting, a step that would require passage of a referendum amending the Connecticut Constitution — something that cannot happen before the 2024 election.
Instead, it amends statutory language that is more restrictive than the standard set in the constitution, which disenfranchises voters in some circumstances.
Beth LeBlanc in the Detroit News:
Michigan Republican lawmakers used a rule-making maneuver Tuesday to delay the adoption of rules that would govern signature verification and online applications for absentee ballots.
The six GOP members of the Joint Committee on Administrative Rules voted in favor of introducing the rules proposed by Democratic Secretary of State Jocelyn Benson in the form of bills in the House and Senate, starting a 270-day clock for the adoption of the bills.
Under Michigan’s convoluted rule-making process, Benson’s rules cannot take effect until after that 270-day clock expires — meaning the they likely won’t take effect until after the November election and the completion of Benson’s first term.
Georgia’s SB 202, enacted in 2021, included a provision to change how it verified absentee ballot submissions. Instead of relying on signature verification, which had been the subject of extensive litigation ahead of the 2020 election, the state would move to the last four digits of a Georgia driver’s license or identification card; the last four digits of a social security number; or an affirmation that a voter lacks that information. Texas followed suit with a similar provision in SB 1 (although it did not eliminate the signature requirement; it simply made the signature “rebuttably presumed” to be valid if the ballot envelope had the ID number, something of a belt-and-suspenders approach).
Unlike some others, I’m not inherently opposed to this move (at least in Georgia). Signatures are a very nineteenth-century way of verifying identity (especially given the litigation in Georgia). Maybe a move to something like identification numbers is a cleaner, simpler approach to quickly determining whether the sender is who she purports to be. Maybe. Disclosing your identification number is more difficult than simply affixing your signature (although there are disputes brewing in court about how much more difficult and whether the burdens disproportionately fall on some voters).
But I want to focus on a different issue: an absentee ballot envelope design problem. A signature on an envelope is unlikely to inspire much of a security issue. Signatures are ubiquitous. Forging them requires some (not much) effort, and signatures are easy to find anywhere. We don’t think much about “revealing” that information on an envelope.
But including the last four digits of your driver’s license or, more importantly, your social security number is not only a security risk for someone who wants to commit fraud using your identity in future elections (ironically, a fraud-prevention solution that could induce fraud more easily in the future) but also other uses of this personally-identifiable information.
Continue reading Absentee ballot envelope design, the Texas debacle, and the one coming to Georgia
The Morning Call:
A federal appeals court has halted the final count and certification of votes in a narrow race for Lehigh County judge while voters ask the court to reverse a decision throwing out their lawsuit to have their undated ballots counted.
The 3rd U.S. Circuit Court of Appeals on Sunday issued a temporary injunction to stop the Lehigh County board of elections from certifying the results of the election for the last of three seats on Lehigh County Court. A group of five voters sued the board claiming they would be unjustifiably denied the right to vote by a decision not to count 257 ballots that were mailed without handwritten signatures on the return envelopes.
The uncounted ballots have the potential to tip the race between the third- and fourth-place candidates for judge. Republican David Ritter has a 74-vote lead against Democrat Zachary Cohen.
Represented by the American Civil Liberties Union of Pennsylvania, the voters filed a lawsuit in U.S. District Court in Allentown arguing that the law requiring a handwritten date on the return envelope for a mail-in ballot to be counted violates the voting rights provisions of the Civil Rights Act and is unconstitutional.
You can view the district court’s opinion in Migliori v. Lehigh County Board of Elections here. It found no private right of action under the applicable provision of the Civil Rights Act, and it concluded that a requirement of a handwritten date on a ballot envelope was “slight” under the Anderson-Burdick framework.