An election worker hands a sticker to a voter after she dropped off a mail-in ballot outside the Chester County Government Center on Tuesday, Nov. 5, 2024. (Capital-Star/Peter Hall)
Writing the date on a mail-in ballot envelope is a minor burden for voters, a federal appeals court said Tuesday. But the impact of making a mistake or forgetting to do so is too great to justify the requirement.
The Philadelphia-based 3rd U.S. Circuit Court of Appeals has now twice considered the date requirement in Pennsylvania’s vote-by-mail law after earlier rejecting claims it ran afoul of federal law.
This week’s ruling stems from a lawsuit by Erie County voter Bette Eakin, originally filed after her mail-in ballot for the 2022 general election was rejected because she failed to write a date on the return envelope. The 3rd Circuit found the government interests in requiring a date do not outweigh the harm to voters’ rights.
“Because of the commonwealth’s date requirement, an inadvertent typographical error or a flipped number or even a stray pen mark in the date field will remove the ballot contained within the return envelope from consideration. And the voter may never be the wiser,” Circuit Judge D. Brooks Smith wrote for the unanimous three-judge panel.
Democratic backers of Eakin’s case called the decision “a victory for free and fair elections,” and the right of Pennsylvanians to participate in democracy.
“It’s also a reminder that the Republicans’ playbook for the midterms is to disenfranchise voters across the country because they know they can’t win on their failed governing record,” Democratic Congressional Campaign Committee (DCCC) Executive Director Julie Merz and Democratic Senatorial Campaign Committee (DSCC) Executive Director Devan Barber said in a statement. “Democrats are united in the fight to ensure every legal vote is counted, in Pennsylvania and across the nation, and will not let these Republican attacks go unanswered.”
SUPPORT: YOU MAKE OUR WORK POSSIBLE
Pennsylvania Republican Party Chairman Greg Rothman and lawyers for the GOP did not return calls Tuesday.
Pennsylvania voters first had the option to cast ballots by mail without an excuse for not going to the polls in 2020. The convenience appealed to voters, especially during the COVID-19 pandemic, when many sought to avoid crowds. County election offices received more than 3 million requests for mail-in ballots.
In every election since, voters’ failure to correctly date their ballot envelopes has caused significant numbers of ballots to be rejected. Voting rights advocates estimated more than 10,000 voters were disenfranchised because of such errors in 2022. Even after the Department of State redesigned ballot envelopes to reduce errors and omissions, about 4,500 mail-in ballots were rejected in 2024, according to the opinion.
In an earlier challenge to the law, Eakin, argued the date requirement violated voting rights protections under the Civil Rights Act – specifically, its Materiality Clause, which bars requirements (e.g., literacy tests) that aren’t material to whether someone is qualified to vote and could disenfranchise them.
U.S. District Judge Susan Paradise Baxter in western Pennsylvania agreed with Eakin. But the 3rd Circuit overturned her decision, with Senior U.S. Circuit Judge Thomas Ambro writing that the provision only applies when the state is determining who may vote and not how they must cast a ballot.
In the current case, Eakin claimed the date requirement violated her First Amendment right to vote and 14th Amendment right to equal treatment under the law. Baxter again sided with Eakin. This time, the 3rd Circuit panel agreed that Baxter had correctly employed a longstanding test balancing the interests of the states in administering elections against the burden on voters that could keep them from casting ballots.
The 3rd Circuit panel rejected arguments that the date requirement was crucial to election administration on appeal by the Republican Party of Pennsylvania, its national counterpart and the Republican National Congressional Committee.
“The date requirement seems to hamper rather than facilitate election efficiency. By its nature, it fails to add solemnity to the process of voting,” wrote Smith, who was nominated for the court by President George W. Bush.
He also rejected the Republicans’ argument that the date requirement assisted in detecting and prosecuting ballot fraud.
In the six years since Act 77 introduced no excuse mail-in voting to Pennsylvanians, such a scenario has played out “only in the extremely rare instance involving a hapless fraudster who obtains a recently deceased voter’s mail-in ballot, completes the ballot, and adds a date on the return envelope postdating the deceased voter’s death,” Smith noted.
“One bizarre instance of the date requirement helping the commonwealth prosecute a criminal case of voter fraud — fraud that had been detected by other means — cannot justify the burden the date requirement imposes that affects thousands of Pennsylvania voters every election,” Smith said.
SUBSCRIBE: GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX