Dan links to the dispute that’s arisen in Pennsylvania, Chapman v. Berks County Board of Elections, as three of the Commonwealth’s 67 county boards of elections have not certified results that include undated absentee ballots. News outlets like NBC News and CNN (among others) were quick to link this case to the Otero County, New Mexico case.
But I am much more skeptical that the case is anything like Otero County, and I’m skeptical mandamus is appropriate.
There’s a tortured procedural history to get to this stage, but the very quick (and grossly oversimplified) summary is this: in 2020, the Pennsylvania Supreme Court said that the inclusion of dates on a ballot was mandatory and undated ballots could not be counted (UPDATE: I’m reminded, this is a splintered decision where the votes were to be counted in 2020 but not to be counted going forward, in hopes that the legislature would fix the matter and that counties would improve ballot envelope design). A 2022 Commonwealth Court decision involving a Lehigh County election agreed that undated ballots should not be counted in that race. A Third Circuit decision in that case, however, concluded that undated ballots were “immaterial” under the Civil Rights Act of 1964 and must be counted under federal law [Migliori]. (Judge Matey concurred specially to identify that different facts may lead to a different outcome.) The Supreme Court did not stay the decision, over the dissenting opinion of three justices, and the ballots were ultimately counted. Meanwhile [McCormick], a dispute in the Republican Senate primary yielded similar litigation in state court. The court there identified 12 separate practices that the 67 counties were engaging in when it came to undated ballots (!). The court’s preliminary injunction order:
[T]he County Boards are directed, if they are not already doing so, to segregate the ballots that lack a dated exterior envelope, to canvass those ballots assuming there are no other deficiencies or irregularities that would require otherwise, report two vote tallies to Leigh M. Chapman, Acting Secretary of the Commonwealth (Acting Secretary), one that includes the votes from ballots that lack dated exterior envelopes and one that does not; and to report a total vote tally which includes the votes from ballots that had both dated and undated exterior envelopes as the total votes cast.
(The appeal was withdrawn and the action was discontinued when the challenge in the primary was abandoned.)
Now, here it gets more interesting. Note two pieces doing separate things here. (1) One county was ordered, consistent with a Third Circuit opinion, to count a set of undated ballots. (2) All counties, under a preliminary injunction order (in a case now abandoned), to canvass undated ballots and include both in a count to the state.
There is, formally, no order to certify only one set of canvassed results. But the Department of State saw thinks otherwise. It sent an email to all counties asking (ordering?) them transmit a “final certification” that included the undated ballots. Sixty-four counties, apparently seeing the writing on the wall, did so. But three haven’t.
I’m not convinced that these three counties are in defiance of any “clear legal duty” as this stage. Pennsylvania’s complaint is something of a thaumatrope. Note how they mash the two cases together: “Following the conclusion of Migliori and McCormick, the Department emailed all county boards on June 17, 2022, instructing them to transmit by June 23 a final certification of the results of the 2022 primary election that included timely received absentee and mail-in ballots cast by qualified voters even if the voter neglected to write a date on the ballot’s return envelope. In other words, the Department instructed the boards to certify results that include the very ballots that this Court ordered in McCormick must be canvassed, which also are the type of ballots that the Third Circuit ruled in Migliori must be counted.”
This isn’t, I think, mandamus-worthy. This is hardly, in my view, a “clear legal duty,” given not only some of the procedural complexity, but also the lack of clarity and precision in the previous judicial orders. (Of course, I know Pennsylvania disputes this!)
Now, that’s fine, because mandamus isn’t magic. It applies to narrow cases. And there are other solutions here. The state leads with mandamus, but it includes a second cause of action, seeking declaratory and injunctive relief, and it devotes the bulk of its brief to that. That strikes me as the more likely place to go (with, perhaps, a ride-along mandamus order directing the county boards to comply with the newly-issued injunctive relief).
Another wrinkle distinguishing this from cases like Otero County is the lack of partisan valence. The Lancaster County Board, for instance, included a bipartisan statement of its election officials explaining why it was not counting the ballots, as it believed it is following existing orders and that the state lacks the power to force these kinds of counting orders on its own. So while injunctive relief might be the better remedial route, there may still be challenges in bringing along some counties.
All of this is to say, the decentralization in Pennsylvania’s election system presents some of these unique challenges to coordination. We’ll see how the legal process plays out. But it’s worth noting, I think, that stand-alone mandamus is not always going to be a solution where there’s at least some uncertainty or ambiguity about legal duties. (And in cases like this, the fight might well be over what qualifies as sufficiently clear.)