PHILADELPHIA (KYW Newsradio) — The United States Court of Appeals for the Third Circuit on Tuesday heard oral arguments over a district judge's ruling in November that, even without a proper date on the return envelope, mail-in ballots in Pennsylvania should be counted if they are received in time. It's a question that could have an effect on this year's presidential election.
The Pennsylvania groups challenging the date mandate argue it allows the state to disenfranchise voters over meaningless mistakes, violating the "materiality provision" of the U.S. Civil Rights Act of 1964.
The suit was filed by state chapters of the NAACP, the League of Women Voters, Common Cause, the Black Political Empowerment Project and other groups against Pennsylvania Secretary of State Al Schmidt, but his attorney, Jacob Boyer, agreed with the plaintiffs.
"The date has no function, is not material in determining whether a voter is qualified and thus is within the scope of the statute," Boyer said.
Ari Savitzky, a lawyer with the American Civil Liberties Union representing the plaintiffs, told the three-judge panel that more than 10,000 ballots in the commonwealth were disqualified in 2022 based on what he called "a meaningless paperwork error."
"An immaterial mistake on a piece of paperwork doesn't go to the deficiency or validity of the ballot itself," Savitzky said.
U.S. District Judge Susan Paradise Baxter, a Trump appointee, ruled last year that county boards of election may no longer reject mail ballots that lack accurate, handwritten dates on their return envelopes. She said the date — mandated by state law — is irrelevant in helping elections officials decide whether the ballot was received in time or whether the voter is qualified to cast a ballot.
Baxter said elections officials do not use the date on the outer envelope to determine whether the vote should be counted.
"The important date for casting the ballot is the date the ballot is received. Here, the date on the outside envelope was not used by any of the county boards to determine when a voter's mail ballot was received in the November 2022 election," Baxter wrote.
Lawyer John M. Gore, representing state and national Republican groups challenging Baxter's ruling, argued on Tuesday that the protection only applies to voters' registrations, not their actual vote. He said "the right to vote is not denied" when the state qualifies someone to vote, sends them a ballot and then rejects the ballot "because they failed to follow Pennsylvania law."
"If Congress didn't say it was extending materiality provisions to ballot-casting, then it didn't — and the case is over," Gore said.
Savitsky disagreed, saying, "Congress recognized that there needed to be a broad prohibition against using immaterial paperwork errors to deny the right to vote."
In Pennsylvania, under the expansion of mail-in balloting enacted in 2019, Democrats have been far more likely to vote by mail than Republicans — so disqualifying ballots sent by mail is more likely to hurt Democratic candidates than Republican candidates.
When the COVID-19 pandemic began, the consequences of the expanded mail-in ballot rules became more pronounced, and the partisan vote-by-mail gap was widened by President Donald Trump's opposition to mail-in ballots during his failed 2020 re-election campaign.
That year, ¾ of Pennsylvania's 2.6 million mail-in ballots were cast for Joe Biden, and he won the state by 81,000 votes.
In 2022, about 1.2 million Pennsylvanians voted by mail.
Savitsky told the judges that thousands of Pennsylvania voters could be disenfranchised this November if counties were allowed to toss ballots that came in envelopes with incorrect or missing dates. In a tight battleground state, that could make a difference in the outcome.
The court did not indicate whether a ruling would come before the primary election on April 23.
