About six weeks ago, I highlighted the dispute in Pennsylvania over whether to include some absentee ballots that lacked a date in the county’s certified results. I noted that mandamus struck me as inappropriate and that media or commentary comparisons to, say, Otero County, New Mexico were off base:

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).

With some complexity, a Pennsylvania court has issued a decision: it granted injunctive relief but denied mandamus relief, ordering inclusion of disputed ballots in the certified results. The opinion is here. Post-Gazette coverage is here.

Three thoughts.

First, the court emphasizes again why mandamus was inappropriate given the procedural posture of the case and the precedents that came before:

In granting a preliminary injunction, the Court analyzed the legal issue of whether such ballots should be counted under the standard for granting preliminary injunctive relief. This standard required the Court to determine whether the petitioners were “likely to prevail on the merits.” Importantly, the grant of a preliminary relief “[does not] serve as a judgment on the merits” because “it is a temporary remedy granted until that time when the party’s dispute can be completely resolved.” Thus, the Court’s determination was not a final decision on the merits. Given the procedural posture, the Court could not make a final determination that these ballots were lawfully cast, but determined that the petitioners in McCormick were likely to succeed on that argument under Pennsylvania and federal law.

The Court’s June 2, 2022 order in McCormick also did not reference the certification of election results. That order granted the preliminary injunction and directed county boards [to segregate ballots and include two tallies]. Petitioners interpret the Court’s direction that these ballots be canvassed, and to report a total vote tally as requiring the Boards to certify those results under Section 1308(g)(4), which requires that all canvassed ballots must be included in the results. However, viewed in light of the Court’s legal analysis, which did not finally resolve the issue of whether these ballots were lawfully cast, and the procedural posture of the case, this direction is more appropriately understood as directing canvassing of the ballots in anticipation of a final determination. Because McCormick involved the grant of preliminary relief, the results of which could change pending final resolution of the legal issue, the Court would not have had the authority to require the Boards to certify their election results to include the ballots without handwritten dates on the return envelope. Accordingly, the Court will not interpret the June 2, 2022 order in McCormick to require such certification, and, therefore, Petitioners have not met their burden of proving their entitlement to summary relief on their mandamus claim.

(Citations omitted.)

Second, there’s an extensive and comparative look at the relationship between state law and the federal “materiality” standard that’s worth a read. That said, the work of the “materiality” portion of the Civil Rights Act of 1964 is quickly becoming an attractive source of litigation. It is likely the Supreme Court weighs in soon–but, spoiler alert, I doubt it will end the way many plaintiffs’ groups hope.

Third, Pennsylvania remains one of the most problematic jurisdictions in terms of election administration. It has a deeply decentralized system. Its certification of one set of results in 66 counties here, but a different set in another county, is a walking Equal Protection violation. I wrote earlier this month, “The state legislature and the state executive are at loggerheads with one another, yielding a sclerotic legislative process for any tool that could resolve ambiguities or increase centralization. Absent some breakthrough, it is probably the single most likely source of election dysfunction ahead of the 2022 and 2024 elections.” It remains true.