Voting rights groups asked a federal appeals court on Wednesday to reconsider their challenge to the Pennsylvania law that caused thousands of mail-in ballots to be thrown out in the 2022 midterm election because voters dated them incorrectly or not at all.
The groups, including the state conference of the NAACP and the League of Women Voters, argued the court’s 3-1 decision could disenfranchise “untold thousands” of Pennsylvania voters and millions more across the country if it is more broadly adopted.
They argued that the requirement for voters to write the date on the outside of their mail-in ballot envelopes violates the materiality provision of the federal Civil Rights Act, which prohibits denying the right to vote for irrelevant paperwork errors.
The three-judge panel of the U.S. 3rd Circuit Court of Appeals ruled last month that the materiality provision applies only to rules determining who may vote but not how voters must cast their ballots.
In an opinion for the majority, Chief Judge Thomas Ambro, who was nominated by President Bill Clinton, noted that the date requirement “serves little apparent purpose,” but since the state’s Supreme Court ruled that dating of envelopes was mandatory, “undated or misdated ballots are invalid under state law and must be set aside.”
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Lawyers for the American Civil Liberties Union of Pennsylvania, who represent the voting rights groups, asked for a larger en banc panel of the court to rehear the appeal.
They argue the majority decision misinterprets the materiality provision and is at odds with an earlier 3rd Circuit ruling that held the date requirement was irrelevant and that undated or incorrectly dated ballots must be counted.
“The panel majority reached its restrictive, registration-forms-only interpretation by overlooking or countermanding numerous principles of statutory interpretation and relying on incorrect, unsourced assumptions about Pennsylvania election law,” the ACLU lawyers wrote in a petition seeking the rehearing.
The majority departed from the legal doctrine of statutory construction that “ordinary principles of English prose” should be used to interpret laws.
“But the panel majority applied an unnatural, backwards reading to the text—one where, in its own words, ‘the tail … wags the dog,’” the petition says.
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In the earlier case before the 3rd Circuit, voters in Lehigh County sued to require the board of elections to count 257 mail-in ballots that had been rejected because of missing or incorrect dates.
The 3rd Circuit found the date requirement violated the Civil Rights Act’s materiality clause, and ordered the ballots, which determined the result of a county judge race, to be counted. The U.S. Supreme Court later vacated the 3rd Circuit decision when it denied an appeal by one of the judicial candidates.
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