# MIGLIORI v. LEHIGH COUNTY BOARD OF ELECTIONS

> District Court, E.D. Pennsylvania · March 16, 2022

URL: https://www.frixlaw.com/law-library/cases/10402905

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** March 16, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10402905

## How later opinions describe it (automated extraction)

- stating that the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts”
- concluding Congress’s provision for enforcement by Attorney General does not compel conclusion that no private right of action exists

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
:
LINDA MIGLIORI, et al., :
Plaintiffs, :
:
v. : No. 5:22-cv-00397
:
LEHIGH COUNTY BOARD OF ELECTIONS :
et al., :
Defendants. :
__________________________________________

O P I N I O N
Plaintiffs’ Motion for Summary Judgment, ECF No. 33 – Denied
Defendants’ Motions for Summary Judgment, ECF Nos. 33 and 34 -- Granted

Joseph F. Leeson, Jr. March 16, 2022
United States District Judge

I. INTRODUCTION
This matter involves a recent election held in Lehigh County to elect a judge to the Court
of Common Pleas. The ballots of the five Plaintiffs here,1 as well as 252 other ballots, were not
counted in the election because those 257 ballots lacked a handwritten date next to the voter
declaration signature on the outer envelope.
The issue of whether to count the undated ballots was litigated in the state courts, which
determined that the 257 ballots could not be counted. Plaintiffs now bring claims arising under
federal law before this Court. In particular, Plaintiffs assert that the Lehigh County Board of
Election’s (LCBE) decision to not count the undated ballots violates the Civil Rights Act of
1964, the First Amendment, and the Fourteenth Amendment.

1 Linda Migliori, Francis J. Fox, Richard E. Richards, Kenneth Ringer, and Sergio Rivas.
The LCBE agreed to pause certification of the election until these questions could be
resolved. Following an expedited briefing schedule agreed to by the parties and intervenors,
Plaintiffs, the LCBE, and Intervenor-Defendant David Ritter filed cross-motions for summary
judgment. Upon review, this Court grants Defendants’ motions for summary judgment and

enters judgment in favor of Defendants on all counts.
II. PROCEDURAL HISTORY
On January 31, 2022, the five named Plaintiffs filed suit in the Eastern District of
Pennsylvania. See Compl., ECF No. 1. Each Plaintiff is a citizen of Lehigh County who is
registered to vote. See Joint Stip. of Facts (“JSOF”) ¶¶ 55, 64, 71, 79, 88, ECF No. 27. In
addition, each Plaintiff submitted a ballot in the November 2, 2021 election that was undated
next to the voter declaration signature. See id. ¶ 53. Accordingly, Plaintiffs’ ballots were not
counted. See id. Plaintiffs asserted three claims in their Complaint: (1) Count I for violation of
the Civil Rights Act, 52 U.S.C. § 10101(a)(2)(B), (2) Count II for undue burden on the right to
vote in violation of the First and Fourteenth Amendments, and (3) Count III for violation of

procedural due process under the Fourteenth Amendment. See Compl. On February 10, 2022,
Plaintiffs stipulated to the voluntary dismissal of Count III, their procedural due process claim.
See Stip. Count III, ECF No. 26. Accordingly, only Counts I and II remain.
Following initiation of this action, this Court granted the intervention motions of David
Ritter and Zachary Cohen, who are the two candidates in the subject election. See Order 2/2/22,
ECF No. 18; Order 2/11/22, ECF No. 29. On February 8, 2022, this Court approved a stipulation
reached by the parties, which set the briefing and hearing schedule for this matter. See Stip.,
ECF No. 23. The parties have agreed to proceed by way of cross-motions for summary
judgment. See id. In accordance with that stipulation, Plaintiffs, the LCBE, and Ritter all filed
cross-motions for summary judgment on February 11, 2022. See Pl. MSJ, ECF No. 33; LCBE
MSJ, ECF No. 32; Ritter MSJ, ECF No. 34. Thereafter Plaintiffs, Ritter, and Cohen filed
responses to the various motions. See Pl. Resp, ECF No. 44; Ritter Resp., ECF No. 43; Cohen
Resp., ECF No. 45. Ritter and Plaintiffs also filed replies in support of their respective motions.

See Ritter Reply, ECF No. 47; Pls. Reply, ECF No. 48.
In addition to the motions and responses, this Court granted leave for the filing of two
amici briefs. The first amicus brief was filed by leaders within the Pennsylvania Legislature.2
See Legis. Amicus, ECF No. 37. The second was filed by the Commonwealth of Pennsylvania.
See Commw. Amicus, ECF No. 40.
On February 24, 2022, all parties, intervenors, and amici indicated to the Court that they
wished to rely solely on their briefs and waived oral argument. Accordingly, the oral argument
originally scheduled for March 2, 2022 was cancelled.
III. UNDISPUTED MATERIAL FACTS
Pursuant to the expedited briefing schedule, ECF No. 24, the parties filed a Joint

Stipulation of Facts. See JSOF. The relevant undisputed facts are drawn therefrom.
A. The 2020 Election Cycle
Pennsylvania law provides for the provision of absentee ballots to qualifying voters as
well as mail-in ballots to any registered voter who requests one. See id. ¶ 1. To acquire either an
absentee or mail-in ballot, the voter must fill out an application that requires them to provide
their name, address of registration, and proof of identification. See id. ¶ 2. Once this

2 The amicus brief was filed by the Speaker of the Pennsylvania House of Representatives,
Bryan Cutler, the Majority Leader of the Pennsylvania House of Representatives, Kerry
Benninghoff, the President Pro Tempore of the Pennsylvania Senate, Jake Corman, and the
Majority Leader of the Pennsylvania Senate, Kim Ward.
information is verified, the voter receives a ballot package that contains a ballot, a “secrecy
envelope,” a return envelope—which contains the voter declaration required by Pennsylvania
law—and instructions for completing the absentee or mail-in ballot. See id. ¶ 3.
After marking his or her ballot and placing it in the secrecy envelope, the voter is to then

place the secrecy envelope into the return envelope. See id. ¶ 4. Title 25 P.S. §§ 3146.6(a),
3150.16(a) require that the voter “fill out, date and sign the declaration,” otherwise known as the
“voter declaration,” printed on the return envelope. See id. ¶ 6. During the 2020 election cycle,
this provision was the subject of several legal challenges. See id. ¶ 7. Following a split decision
from the Pennsylvania Supreme Court, undated ballots from the 2020 election cycle were
counted. See id. ¶ 7. After this decision, the LCBE made design changes to the outer envelope
for absentee and mail-in ballots in anticipation of the 2021 election cycle. See id. ¶ 8. This
redesign was approved by the Secretary of the Commonwealth. See id. ¶ 9.
B. The 2021 Lehigh County Election
On November 2, 2021, Lehigh County held an election to fill vacancies for office of

Judge of the Court of Common Pleas of Lehigh County. See id. ¶¶ 16–17. Six candidates vied
for three available judgeships. See id. ¶ 17. Candidates Judge Thomas Caffrey and Judge
Thomas Capehart garnered the most votes, and have already been sworn into office. See id. ¶¶
19–20. As of November 15, 2021, candidate David Ritter received the third most votes in the
election, and therefore was the presumptive third and final successful candidate for judge. See
id. ¶ 18. Ritter’s lead over the candidate in fourth place, Zachary Cohen, currently stands at
seventy-four votes. See id.
During the counting of the ballots, any mail-in or absentee ballots that lacked a
handwritten date next to the voter declaration signature were set aside. See id. ¶ 22. In total, 257
of the approximately 22,000 mail-in and absentee ballots were set aside as undated. See id. ¶¶
21, 23. An additional four ballots were received with the date in the wrong location on the outer
envelope; these ballots were also set aside. See id. Both the undated and misdated ballots are
referred to, collectively, as the disputed ballots. All of the disputed ballots were timely received

by the LCBE. See id. ¶ 26.
C. State Court Litigation regarding the Disputed Ballots
On November, 15, 2021, the LCBE convened a public hearing to consider whether to
count the disputed ballots. See id. ¶ 30. During the hearing, both Ritter and Cohen presented
argument on the issue. See id. ¶ 33. Following argument, the LCBE voted unanimously to count
the disputed ballots. See id. ¶ 34.
On November 17, 2021, Ritter filed an appeal with the Lehigh County Court of Common
Pleas, challenging the LCBE’s decision to count the ballots. See id. ¶ 35. Following an
evidentiary hearing and oral argument, the Court of Common Pleas affirmed the LCBE’s
decision to count the disputed ballots. See id. ¶¶ 36, 38. Ritter then appealed the trial court’s

decision to the Commonwealth Court of Pennsylvania. See id. ¶ 40. On January 3, 2022, the
Commonwealth Court issued its opinion and order, ultimately concluding that the undated
ballots should not be counted. See id. ¶ 44. On January 27, 2022, the trial court entered an
order, directing the LCBE to count the four misdated ballots but not to count the 257 undated
ballots. See id. ¶ 48.
On January 31, 2022, Plaintiffs filed the within lawsuit in the Eastern District of
Pennsylvania. See Compl.
IV. LEGAL STANDARDS
A. Motion for Summary Judgment – Review of Applicable Law
Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A disputed fact is “material” if proof of its existence or nonexistence might affect the
outcome of the case under applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). An issue of material fact is “genuine” if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party. Id. at 257.
The party moving for summary judgment bears the burden of showing the absence of a
genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once
such a showing has been made, the non-moving party must go beyond the pleadings with
affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific
material facts which give rise to a genuine issue. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324;

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (stating that the
non-moving party “must do more than simply show that there is some metaphysical doubt as to
the material facts”). The party opposing the motion must produce evidence to show the
existence of every element essential to its case, which it bears the burden of proving at trial,
because “a complete failure of proof concerning an essential element of the nonmoving party’s
case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. The court must
consider the evidence in the light most favorable to the non-moving party. Scott v. Harris, 550
U.S. 372, 378 (2007).
B. The Defense of Laches – Review of Applicable Law
“Laches is an equitable defense which can limit or bar certain claims.” Fenton v. Balick,
821 F. Supp. 2d 755, 761 (E.D. Pa. 2011) (citing Holmes v. Pension Plan of Bethlehem Steel

Corp., 213 F.3d 124, 134 (3d Cir.2000)). “Declaratory judgments are equitable in nature and
thus the doctrine of laches applies.” Id. (citing Building Ind. Ass’n of Lancaster Cnty. v.
Manheim Twp., 710 A.2d 141, 146–47 (Pa. Commw. Ct. 1998)). “Under Pennsylvania law, the
doctrine of laches has two elements: (1) inexcusable delay; and (2) prejudice.” Id. (quoting
Holmes, 215 F.3d at 134). “Laches arises when a defendant’s position or rights are so prejudiced
by length of time and inexcusable delay, plus attendant facts and circumstances, that it would be
an injustice to permit presently the assertion of a claim against him.” Id. (quoting Jacobs v.
Halloran, 710 A.2d 1098, 1102 (Pa. 1998)).
C. Claim Preclusion (Res Judicata) – Review of Applicable Law
“Claim preclusion—which some courts and commentators also call res judicata—protects

defendants from the risk of repetitious suits involving the same cause of action once a court of
competent jurisdiction has entered a final judgment on the merits.” Beasley v. Howard, 14 F.4th
226, 231 (3d Cir. 2021) (quoting United States v. Tohono O’Odham Nation, 563 U.S. 307, 315
(2011)). The doctrine prevents parties “from raising issues that could have been raised and
decided in a prior action—even if they were not actually litigated.” See id. (quoting Lucky Brand
Dungarees, Inc. v. Marcel Fashions Grp., Inc., ––– U.S. ––––, 140 S. Ct. 1589, 1594 (2020)).
Where a defendant seeks to invoke claim preclusion based on a matter litigated in
Pennsylvania state court, this Court “must give the same preclusive effect to the [state court]
judgment . . . that the courts in Pennsylvania, the state in which the judgment was entered, would
give.” See Rosemont Taxicab Co. v. Phila. Parking Auth., 327 F. Supp. 3d 803, 815 (E.D. Pa.
2018) (quoting Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542, 548 (3d Cir.
2006)). Under Pennsylvania law, a defendant may invoke claim preclusion only where the prior
action and current matter share four “identities”:

(1) “the things sued upon or for;”
(2) “the cause of action;”
(3) “the persons and parties to the action;” and
(4) “the capacity of the parties to sue or be sued.”
See id. (quoting Turner, 449 F.3d at 548).
“Although Pennsylvania requires an ‘identity of persons and parties’ for claim preclusion
to apply, that concept includes a party’s privies.” Toll Bros., Inc. v. Century Sur. Co., 318 F.
App’x 107, 110 (3d Cir. 2009) (quoting Turner, 449 F.3d at 548 n.11). Privity is defined as
“mutual or successive relationships to the same right of property, or such an identification of
interest of one person with another so as to represent the same legal right.” See id. (quoting

Ammon v. McCloskey, 655 A.2d 549, 554 (Pa. Super. Ct. 1995)). Accordingly, “privity is not
established by the mere fact that persons may be interested in the same question or in proving the
same facts.” Bergdoll v. Pennsylvania, 858 A.2d 185, 197 n.4 (Pa. Commw. Ct. 2004) (quoting
Day v. Volkswagenwerk Aktiengesellschaft, 464 A.2d 1313, 1317 (Pa. Super. Ct. 1983)).
D. Civil Rights Act (52 U.S.C. § 10101) – Review of Applicable Law
The Civil Rights Act of 1964 was enacted, in part, to “enforce the constitutional right to
vote.” See Pub. L. 88-352. Formerly codified in 42 U.S.C. § 1971, the provisions of the Act
aimed at securing the right to vote are currently codified in 52 U.S.C. § 10101. See 52 U.S.C. §
10101 (formerly 42 U.S.C. § 1971). The opening provision thereof provides that
[a]ll citizens of the United States who are otherwise qualified by law to vote at any
election by the people in any State, Territory, district, county, city, parish, township,
school district, municipality, or other territorial subdivision, shall be entitled and
allowed to vote at all such elections, without distinction of race, color, or previous
condition of servitude; any constitution, law, custom, usage, or regulation of any
State or Territory, or by or under its authority, to the contrary notwithstanding.
See id. § 10101(a)(1)
In pursuit of that purpose, § 10101(a)(2) prohibits three categories of activity related to
voting and voting qualification. See id. § 10101(a)(2). First, § 10101(a)(2)(A) prohibits the
application of “any standard, practice, or procedure different from the standards, practices, or
procedures applied under such law or laws to other individuals within the same county, parish, or
similar political subdivision who have been found by State officials to be qualified to vote.” See
id. § 10101(a)(2)(A). Second, § 10101(a)(2)(B), otherwise known as the “materiality provision,”
prohibits denial of “the right of any individual to vote in any election because of an error or
omission on any record or paper relating to any application, registration, or other act requisite to
voting, if such error or omission is not material in determining whether such individual is
qualified under State law to vote in such election.” See id. § 10101(a)(2)(B). Finally, §
10101(a)(2)(C) places restrictions on the use of literacy tests as a means of determining voter
qualification. See id. § 10101(a)(2)(C).
Subsection (c) of § 10101 provides for enforcement of the law’s substantive provisions
through suit brought by the Attorney General. See id. § 10101(c). In relevant part, § 10101(c)
provides that
[w]henever any person has engaged or there are reasonable grounds to believe that
any person is about to engage in any act or practice which would deprive any other
person of any right or privilege secured by subsection (a) or (b), the Attorney
General may institute for the United States, or in the name of the United States, a
civil action or other proper proceeding for preventive relief . . . .
See id. § 10101(c).
E. Determining the Existence of Implied Private Rights of Action – Review of
Applicable Law
“A private right of action is the right of an individual to bring suit to remedy or prevent
an injury that results from another party’s actual or threatened violation of a legal requirement.”

Wisniewski v. Rodale, Inc., 510 F.3d 294, 296 (3d Cir. 2007). “Many federal statutes provide a
private right of action through their express terms.” Id. at 297. “Other federal statutes, however,
merely define rights and duties, and are silent about whether an individual may bring suit to
enforce them.” Id. “For some statutes in this latter category, courts have held that ‘implied’
private rights of action exist.” Id.
Prior to the Supreme Court’s decision in Cort v. Ash, 522 U.S. 66 (1975), the judicial
approach to finding implied rights of actions was “less restrictive.” See id. at 298 (citing J.I.
Case Co. v. Borak, 377 U.S. 426 (1964)). The existence of a private right of action turned on
“Congress’s general purpose in enacting the statute” rather than “Congress’s intent regarding a
private right of action.” See id. With the passage of Cort, the Supreme Court began to alter the

focus of the inquiry from that of “congressional purpose” to one of “congressional intent” to
create a private right of action. See id. (citing Cort, 522 U.S. 46; Touche Ross & Co. v.
Redington, 442 U.S. 560 (1979)).
In 2001, the Supreme Court revisited this issue in Alexander v. Sandoval. See 532 U.S.
275 (2001). Therein, the Supreme Court did not consider the factors set out by Cort, and instead,
it set forth the following test for determining whether a private right of action exists:
Like substantive federal law itself, private rights of action to enforce federal law
must be created by Congress . . . . The judicial task is to interpret the statute
Congress has passed to determine whether it displays an intent to create not just a
private right but also a private remedy . . . . Statutory intent on this latter point is
determinative . . . . Without it, a cause of action does not exist and courts may not
create one, no matter how desirable that might be as a policy matter, or how
compatible with the statute.
See Wisniewski, 510 F.3d at 299–300 (alterations in original) (quoting Sandoval, 532 U.S. at
286–87).
Accordingly, whether a private right of action exists under a given statute depends on the
intent of Congress. See Sandoval, 532 U.S. 275, 286–87 (2001). A reviewing court must
determine whether Congress intended to create a personal right and a private remedy for
vindication of that right. See Wisniewski, 510 F.3d at 301. While Sandoval began and ended its
analysis based on the “text and structure” of the statute, the Third Circuit has determined that
Sandoval left open the possibility that legislative history and other considerations relevant to
congressional intent can inform the analysis. See id. at 301 n.16 (“Although we have
acknowledged that Justice Scalia, the author of the Sandoval majority opinion, disapproves of
the use of legislative history . . . nothing in Sandoval expressly condemns its use.”).
F. Undue Burdens on the Right to Vote under the First and Fourteenth
Amendments – Review of Applicable Law

“Voting is of the most fundamental significance under our constitutional structure.”
Burdick v. Takushi, 504 U.S. 428, 433 (1992) (quoting Illinois Bd. of Elections v. Socialist
Workers Party, 440 U.S. 173, 184 (1979)). “It does not follow, however, that the right to vote in
any manner and the right to associate for political purposes through the ballot are absolute.” Id.
(citing Munro v. Socialist Workers Party, 479 U.S. 189, 193 (1986)). “States may prescribe
‘[t]he Times, Places and Manner of holding Elections for Senators and Representatives . . . .’” Id.
(quoting U.S. CONST. art I., § 4, cl. 1).
“Election laws will invariably impose some burden upon individual voters.” Id.
Accordingly, in determining the appropriate level of scrutiny to be applied to laws that burden
the right to vote,
[a] court considering a challenge to a state election law must weigh “the character and
magnitude of the asserted injury to the rights protected by the First and Fourteenth
Amendments that the plaintiff seeks to vindicate” against “the precise interests put
forward by the State as justifications for the burden imposed by its rule,” taking into
consideration “the extent to which those interests make it necessary to burden the
plaintiff’s rights.
See id. at 434 (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)). Where the right to
vote is “subjected to ‘severe’ restrictions, the regulation must be ‘narrowly drawn to advance a
state interest of compelling importance.’” See id. (quoting Norman v. Reed, 502 U.S. 298, 289
(1992)). “But when a state election law provision imposes only ‘reasonable, nondiscriminatory
restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the State’s important
regulatory interests are generally sufficient to justify’ the restrictions.” Id. (quoting Anderson,
460 U.S. at 788).
V. ANALYSIS
Plaintiffs present two claims for relief. First, Plaintiffs assert that the decision to not
count the undated ballots is a violation of the materiality provision, 52 U.S.C. § 10101(a)(2)(B).
Specifically, Plaintiffs argue that their failure to include a handwritten date on the outer envelope
amounts to an immaterial omission, or, put another way, one that has no material effect on their
qualification to vote. Second, Plaintiffs claim that the handwritten date requirement itself is an
undue burden on the right to vote that violates the First and Fourteenth Amendments. In
particular, Plaintiffs argue that the government lacks an important interest in the requirement
sufficient to sustain it in light of the burden it imposes on voters.
Prior to addressing Plaintiffs’ claims on the merits, Defendants assert two threshold
defenses in their respective motions: (1) laches and (2) claim preclusion, or res judicata. This
Court addresses those threshold defenses before turning to the merits of Plaintiffs’ claims. In
summary, this Court finds neither threshold defense applicable and reviews Plaintiffs’ claims on

the merits.
With respect to Plaintiffs’ claim under § 10101(a)(2)(B), this Court concludes that
Plaintiffs lack the capacity to bring suit under this provision. Specifically, this Court holds that §
10101 does not provide for a private right of action. With respect to Plaintiffs’ First and
Fourteenth Amendment claim, this Court finds that the slight burden imposed by the handwritten
date requirement is justified by important governmental interests, and accordingly, it does not
amount to an undue burden on the right to vote. Having reached these conclusions, the Court
grants Defendants’ motions for summary judgment, and enters judgment in their favor on all
Counts.
A. Threshold Defenses

In their respective motions, Defendants lodge two threshold defenses. First, Ritter asserts
that Plaintiffs’ claims should be barred by the doctrine of laches. Second, both Ritter and the
LCBE argue that Plaintiffs’ claims should be dismissed under the doctrine of claim preclusion or
res judicata. Following a review of both defenses, this Court concludes that Defendants have
failed to adequately establish either. Accordingly, Defendants’ motions for summary judgment
on the basis of laches and claim preclusion are denied.
1. The Defense of Laches
Ritter first asserts that this Court should grant summary judgment in his favor based on
the affirmative defense of laches. Specifically, Ritter argues that Plaintiffs waited an inexcusable
amount of time following the end of the election to file the instant matter. To establish laches,
Ritter must show (1) that the Plaintiffs engaged in inexcusable delay in the filing of this action,
and (2) that Ritter suffered prejudice as a result. See Fenton, 821 F. Supp. 2d at 761 (quoting
Holmes, 215 F.3d at 134).

A review of the stipulated facts in this matter compels denial of Ritter’s laches defense,
as he has failed to show that the Plaintiffs engaged in inexcusable delay. The disputed election
was held on November 2, 2021. See JSOF ¶¶ 16-17. When the question arose whether to count
or dispose of the undated ballots, the LCBE convened a public hearing on November 15, 2021.
See id. ¶ 30. At that hearing, the LCBE voted to count the undated ballots. See id. ¶ 34. Two
days after the decision was made to count the ballots, Ritter initiated an appellate process of that
decision, which would last until January 27, 2022. See id. ¶¶ 35, 40. That appellate process
culminated in the Pennsylvania Supreme Court’s denial of an allowance of appeal. See id. ¶ 46.
On January 27, 2022, on remand from the Superior Court, the Lehigh County Court of Common
Pleas entered an order directing that the undated ballots not be counted. See id. ¶ 48.

Within just four days of learning that their ballots would go uncounted, Plaintiffs filed
suit in this Court. See Compl. On these agreed-upon facts, this Court finds that the Plaintiffs did
not engage in inexcusable delay. Up and until at least January 3, 2022 ,when the Commonwealth
Court issued its opinion, Plaintiffs had every reason to believe their ballots would be counted.
Moreover, it was not until January 27, 2022 that the order that directed the ballots not be counted
was entered. While Ritter had every right to appeal the LCBE’s decision and trial court’s
opinion, he cannot now claim that his exercise of that right represents a delay attributable to
Plaintiffs. Accordingly, that Plaintiffs filed this matter following the exhaustion of all state
appellate efforts does not indicate that they engaged in inexcusable delay.
Ritter has failed to establish that the Plaintiffs engaged in inexcusable delay in the filing
of this matter. Therefore, Ritter’s motion for summary judgment on the basis of laches is denied.
2. The Doctrine of Claim Preclusion
Next, Defendants argue that Plaintiffs claims are barred by the doctrine of claim

preclusion or res judicata. In order to successfully assert claim preclusion, Defendants must
show an identity of (1) the thing sued for, (2) the cause of action, (3) the persons and parties to
the action, and (4) the capacity of the parties to sue or be sued. See Rosemont Taxicab Co., 327
F. Supp. 3d at 815 (quoting Turner, 499 F.3d at 548). Here, even assuming that Defendants can
make out the three remaining factors, Defendants fail to establish that the Plaintiffs in this
lawsuit were party to, or in privity with a party to, the state lawsuit involving the disputed
ballots.
Importantly, there is no dispute that the Plaintiffs here were not party to the state lawsuit.
Instead, Defendants attempt to argue that the Plaintiffs were in privity with a party to the state
lawsuit. On one hand, the LCBE argues that there is a privity “between the voter and the

candidate” that is “so close as to be undistinguishable.” See LCBE MSJ 21. On the other hand,
Ritter attempts to claim that the Plaintiffs are in privity with the LCBE and Cohen. See Ritter
MSJ 24.
Notwithstanding, this Court finds that the Plaintiffs were not in privity with any of the
parties to the state lawsuit. Defendants do not argue that the Plaintiffs and the LCBE, Cohen, or
Ritter have a “mutual or successive relationship to the same right of property.” See Toll Bros.,
Inc., 318 F. App’x at 110 (quoting Ammon, 655 A.2d at 554). Moreover, while Defendants
certainly argue that Plaintiffs shared interest with Cohen in the underlying state action, they do
not argue that their interests were so identical as to “represent the same legal right.” See id.
Rather, Defendants focus almost exclusively on an “adequate representation” theory of
privity. See Ritter MSJ 24. In particular, Ritter argues that “Plaintiffs are in privity with the
parties and participants in the prior court litigation and their interests were adequately
represented there.” See id. Notwithstanding, the adequate representation exception is far

narrower than Ritter would have this Court read it. In Taylor v. Sturgell, the Supreme Court
indicated that “‘in certain limited circumstances,’ a nonparty may be bound by a judgment
because she was ‘adequately represented by someone with the same interests who [wa]s a party’
to the suit.” See 553 U.S. 880, 894 (2008) (alteration in original) (citing Richards v. Jefferson
Cnty., Alabama, 517 U.S. 793, 798 (1996)). These “certain limited circumstances” include (1)
class actions and (2) suits brought by “trustees, guardians, and other fiduciaries.” See id. (citing
Martin v. Wilks, 490 U.S. 755, 762 n.2 (1989); Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573,
593 (1974)). Accordingly, this exception does not permit a finding of privity where there is a
mere overlapping of the interests between one party and another. See id.; see also Bergdoll, 858
A.2d at 197 n.4.

Neither Ritter nor the LCBE assert that the underlying state action was a class action, or
that it was brought by a trustee, guarantor, or fiduciary of any of the Plaintiffs. Rather,
Defendants focus solely on the similarity between the interests of the LCBE and Cohen to those
of Plaintiffs here. This argument is unavailing. It is well-settled that privity is not established by
a mere shared interest in an identical question or even in proving the same facts. See id. Even
assuming that Plaintiffs’ interests overlap with those of the LCBE and Cohen, Defendants fail to
establish a relationship between Plaintiffs and either of those parties sufficient to find them in
privity with one another. 3
In the absence of a sufficient relationship between the Plaintiffs and the parties to the
prior state case, this Court concludes that Defendants have failed to establish the privity

necessary for the defense of claim preclusion. Accordingly, Defendants’ motions for summary
judgment on the basis of claim preclusion are denied.
B. Plaintiffs’ Claims
Having addressed the threshold defenses offered by Defendants, the Court turns to a
review of Plaintiffs’ substantive claims. Plaintiffs assert claims under 52 U.S.C.
§ 10101(a)(2)(B), the First Amendment, and the Fourth Amendment. With respect to the
§ 10101 claim, Defendants assert that Plaintiffs lack the capacity to bring suit, as § 10101 does
not provide for a private right of action. Defendants also argue for summary judgment on
Plaintiffs’ constitutional claim, asserting that the burden imposed by the handwritten date
requirement is slight in light of the important government interests implicated. This Court agrees

that Plaintiffs lack the capacity to bring suit under § 10101(a)(2)(B). In addition, this Court
agrees that the slight burden imposed by the handwritten date requirement is sufficiently justified

3 Ritter, in his motion, cites case law in which electors have been found in privity with a
candidate. See Ritter MSJ 24–25. In particular, Ritter notes that a voter may be considered in
privity with a candidate where they are merely a “pawn” or “puppet” of that candidate. See id. at
25 (citing Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 96 (2d Cir. 2005); Cruz v. Bd.
of Elections of New York, 396 F. Supp. 2d 354, 355 n.1 (S.D.N.Y. 2005)). Even assuming that
any such relationship existed between Plaintiffs and Cohen, Ritter admits that Cohen was not a
party to the underlying state actions. Notably, Cohen’s petition to intervene was denied by the
trial court, and he did not seek intervention in the appeal to the Commonwealth Court. See id. at
24 n.7. Accordingly, Ritter’s claim that Cohen adequately represented Plaintiffs’ interests in the
state litigation is unavailing.
by important government interests. Accordingly, this Court grants Defendants’ motions for
summary judgment.
1. Private Right of Action under Title 52 U.S.C. § 10101
The parties dispute whether § 10101 provides for a private right of action. Both the

LCBE and Ritter contend that § 10101 does not allow for suit by private citizens. In support, the
Defendants point to a provision of § 10101 that grants the Attorney General authority to file suit
for violations of the statute. In response, Plaintiffs contend that the Attorney General’s authority
to bring suit is coextensive with that of private citizens.
The question of whether a private right of action exists under § 10101 has not been
addressed by the Third Circuit. In order to determine whether a private right of action exists, this
Court must ascertain the intent of Congress to create (1) a personal right4 within the statute and
(2) a private remedy for enforcement of that personal right. See Sandoval, 532 U.S. at 286–87.
Following a review of the text and structure of § 10101, its legislative history, and
relevant case law, this Court concludes that § 10101 does not provide for a private right of

action. In particular, the Court finds that even if Congress intended to create a personal right in §
10101, the text, structure, and history of the statute indicates that Congress did not intend to
create a private remedy for the vindication thereof.
a. Text and Structure of § 10101
In fidelity to the test set forth in Sandoval, the Court begins its analysis with the text and
structure of § 10101. The opening provision of § 10101 provides insight into the congressional

4 As the Third Circuit did in Wisniewski, this Court uses the term “personal right” to refer
to the substantive rights granted in statute and the term “private right of action” to refer to the
remedial mechanisms for vindicating the personal right. See Wisniewski, 510 F.3d at 300 n.15.
purpose behind the statute, which, although non-dispositive, helps determine the inquiry into
Congress’s intent to create a personal right. The provision states:
All citizens of the United States who are otherwise qualified by law to vote at any
election by the people in any State, Territory, district, county, city, parish, township,
school district, municipality, or other territorial subdivision, shall be entitled and
allowed to vote at all such elections, without distinction of race, color, or previous
condition of servitude; any constitution, law, custom, usage, or regulation of any
State or Territory, or by or under its authority, to the contrary notwithstanding.

See 52 U.S.C. § 10101(a)(1) (emphasis added).
The subsequent provisions in § 10101 enumerate actions that no individual, acting under
color of law, may take with respect to the right to vote. See id. § 10101(a)(2). When compared
to the language analyzed in Sandoval, § 10101 can be read to confer a personal right on
individuals. In particular, whereas the provision at issue in Sandoval involved the grant of
authority to federal agencies, see Sandoval, 532 U.S. at 288–89, § 10101 places “[a]ll citizens”
qualified to vote at the center of its import and provides that they “shall be entitled and allowed”
to vote, see § 10101(a)(1). Accordingly, § 10101 provides a personal right to Plaintiffs.
However, this is not the end of the inquiry. As Sandoval made clear, a private right of action
only lies where Congress intended to create not only a personal right but a private remedy as
well.
The text and structure of § 10101 strongly suggest that Congress did not intend to create a
private remedy for vindication of the personal right. Notably, § 10101(c) sets forth an
enforcement mechanism for violations of the rights contained in §§ 10101(a) and (b), stating in
relevant part,
[w]henever any person has engaged or there are reasonable grounds to believe that
any person is about to engage in any act or practice which would deprive any other
person of any right or privilege secured by subsection (a) or (b), the Attorney
General may institute for the United States, or in the name of the United States, a
civil action or other proper proceeding for preventive relief, including an
application for a permanent or temporary injunction, restraining order, or other
order. . . .
See § 10101(c) (emphasis added).
This provision vests the power to bring suit in the Attorney General. See id. The
provision does not, by its terms, contemplate suits by private citizens. See id. Moreover, that §
10101(c) provides that the Attorney General “may institute . . . a civil action” does not alter the
analysis. See id. (emphasis added). The fact that the Attorney General’s authority to institute
suit is permissive rather than mandatory does not compel a finding that the alternative to an
Attorney General’s institution of suit is a private right of action. To the contrary, that § 10101(c)
expressly provides for enforcement by the Attorney General “creates a strong presumption
against [an] implied private right[] of action that must be overcome.” See Wisniewski, 510 F.3d
at 305 & n.1 (noting Supreme Court’s unwillingness, post Sandoval, to find a private right of
action where statutes expressly provide for other means of enforcement).
In addition to the explicit means of enforcement provided by § 10101(c), the language of
other provisions of § 10101 also suggest that Congress did not intend to create a private remedy

therein. For example, § 10101(e) provides that, upon the request of the Attorney General, the
court shall make a finding of whether any race-based deprivation of the right to vote was
pursuant to a pattern or practice. See id. § 10101(e). This provision does not provide for such a
request by any other parties. Similarly, § 10101(g) appears to only contemplate suits where the
Attorney General is the plaintiff. That provision describes the procedure required “in the event
neither the Attorney General nor any defendant files a request for a three-judge court.” See id. §
10101(g) (emphasis added). Rather than refer to both parties in the general sense, Congress
deliberately refers to the plaintiff party as the “Attorney General” and to the other side of the
caption as “defendant.” See id.
Accordingly, the text and structure of § 10101 create a strong presumption that Congress
did not intend to create a private remedy for vindication of the personal right.
b. Legislative History of § 10101
In addition to the text and structure of the statute, legislative history may provide insight

into Congress’s intent. House Resolution 6127 contained various amendments and supplements
to 42 U.S.C. § 1971, which housed the voting provisions of the Civil Rights Act prior to their
transfer to § 10101. On April 1, 1957, the House Judiciary Committee promulgated House
Report Number 85-291, in which the Committee reported its findings on various components of
House Resolution 6127. See H.R. Rep. No. 85-291 (1957). The Committee reported two
substantive changes to § 1971 relevant to this matter. See id. at 1976. The first was a declaration
of “the right to vote for federal offices.” See id. This language made it unlawful for anyone
acting under color of law “to interfere or attempt to interfere with the right to vote at any general,
special or primary election . . . .” See id. In reporting this amendment, Congress was careful to
note that this declaration “does not provide for a remedy.” See id.

Rather, the Committee reported that a separate substantive amendment was slated to
create a remedy for enforcement of § 1971. In particular, the Committee noted that “subsection
(c) does provide a remedy in the form of a civil action instituted on the part of the Attorney
General to prevent an act which would deprive a person of any right of privilege secured by”
§ 1971. See id. Congress viewed this amendment as creating a remedy for the enforcement of
§ 1971. See id. This understanding is confirmed by Representatives who provided minority
views on the legislation. In those remarks, a number of Representatives characterized subsection
(c) as a “plenary grant of authority to the Attorney General . . . .” See id. at 2014.
Indeed, as Attorney General Herbert Brownell, Jr. noted in his remarks to the Speaker of
the House, prior to enactment of House Resolution 6127, “[t]he only method of enforcing
existing laws protecting [the right of franchise] is through criminal proceedings.” See id. at
1979. The Attorney General went on to state that “[c]ivil remedies have not been available to the

Attorney General in this field. We think that they should be.” See id. Consistent with this view
of enforcement, in discussing the alternative to Attorney General civil action enforcement, the
Representatives did not remark on the topic of private citizen suits. See id. at 2014. Rather, the
contemplated alternative to civil suit by the Attorney General was continued enforcement
through criminal actions. See id.
In their response to Defendants’ motions, Plaintiffs argue that enforcement by the
Attorney General does not entirely eliminate the possibility of private rights of action. Plaintiffs
point to the 1957 amendments of § 1971 as proof that some form of enforcement existed prior to
the amendment. Plaintiffs suggest that the prior era of enforcement took the form of private
actions. While Plaintiffs are correct that agency enforcement mechanisms do not, per se,

preclude a private right of action, the presence of the Attorney General enforcement provision
creates a strong presumption against the existence of a private right of action. See Wisniewski,
510 F.3d at 305 & n.1. The remarks in the Report cited above suggest that the alternative to the
newly devised Attorney General enforcement mechanism was not one of private civil suits, but
rather a criminal action. Accordingly, the legislative history of § 10101 tracks with the text and
structure of the statute in suggesting that Congress did not intend to create a private right of
action.
c. Case Law Analysis of § 10101
Although Congress’s intent can be determined from the text, structure, and legislative
history of § 10101, the Court finds it useful to briefly review the inter-circuit treatment of the
question. In particular, Plaintiffs cite case law from the Eleventh Circuit, which found that §

10101 does provide for a private right action. Plaintiffs request that this Court follow the
Eleventh Circuit’s lead. For the reasons set forth below, this Court declines to do so.
In Schwier v. Cox, 340 F.3d 1284 (11th Cir. 2003), the Eleventh Circuit had the occasion
to address whether § 10101 provides for a private right of action.5 The court ultimately
concluded that a private right of action was available. See id. at 1297. In doing so, the Eleventh
Circuit relied heavily on two Supreme Court cases: Allen v. State Board of Elections, 393 U.S.
544 (1969) and Morse v. Republican Party of Virginia, 517 U.S. 186 (1996). See id. at 1294–
1296. In each of those cases, the Supreme Court found private rights of action despite statutory
provisions providing for Attorney General enforcement. See id. at 1294 (citing Allen, 393 U.S.
544; Morse, 517 U.S. 186). However, both Morse and Allen were decided based on a

jurisprudence of private rights of action that was dispensed with by the Supreme Court in
Sandoval. The permissive scheme of granting private rights of action whenever necessary to
effectuate congressional purpose was replaced with a more narrowed analysis, one focused
exclusively on Congress’s intent.6 See Sandoval, 532 U.S. at 286–87.

5 Because of the date on which the case was decided, Schwier refers to the relevant
provisions in their previous codification: 42 U.S.C. § 1971.
6 As the Third Circuit has explained, early jurisprudence on the existence of private rights
of action rested on a notion that “it is the duty of the courts to be alert to provide such remedies
as are necessary to make effective the congressional purpose.” See Wisniewski, 510 F.3d at 298
(quoting Borak, 377 U.S. at 433). Even with Cort, the inquiry continued to focus on
congressional purpose rather than congressional intent. See id.; see also Cort, 422 U.S. at 82
(concluding “it is not necessary to show an intention to create a private right of action”
(emphasis in original)).
This Court does not disagree with Schwier’s conclusion that private rights of action may
coexist with other statutory enforcement measures. See Schwier, 340 F.3d at 1296 (concluding
Congress’s provision for enforcement by Attorney General does not compel conclusion that no
private right of action exists). However, after reaching this conclusion, the Schwier court was

required, under Sandoval, to determine whether Congress indicated an intent to include a private
right of action parallel to the Attorney General enforcement provisions. See Sandoval, 532 U.S.
at 286–87. On that question, the test applied by the Eleventh Circuit in Schwier only undertook
half of the Sandoval analysis. See id. at 1296–97.
Importantly, Sandoval requires that a reviewing court inquire into (1) whether Congress
intended to create a personal right, and (2) if so, whether Congress also intended to create a
private remedy for enforcement of that personal right. See Sandoval, 532 U.S. at 286–87. In
Schwier, the Court asked only whether Congress intended to create a personal right in the
relevant statute. See Schwier, 340 F.3d at 1296 (inquiring into whether “the statute contains
‘explicit right- or duty-creating language.’” (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 284

n.3 (2002))) . Finding that Congress did intend to create a specific personal right, and having
found that the language in the statute was mandatory, the Schwier court determined that § 1971
did provide for private enforcement. See id. at 1296–97.
While this Court agrees that § 10101 provides for a personal right, the inquiry does not
end there. Rather, Sandoval also requires inquiry into whether Congress intended to create a
private remedy for the vindication of the personal right. See Sandoval, 532 U.S. at 286–87.
While the Eleventh Circuit’s review of the specific and mandatory nature of the statutory
language may help inform whether Congress intended to create a personal right, these
considerations are not dispositive of whether Congress intended there to be a private remedy.
Since the Eleventh Circuit did not address the second—and important—portion of the Sandoval
test, this Court does not find Schwier persuasive on the question of Congress’s intent to create a
private remedy for the personal rights set forth in § 10101.
In conclusion, having reviewed the text of the statute, the structure of its provisions, and

the legislative history, this Court concludes that Congress did not intend to provide a private
remedy for the vindication of the personal rights contained in § 10101. Congress’s deliberate
provision of Attorney General enforcement creates a strong presumption against the existence of
a private right of action that Plaintiffs fail to overcome. Accordingly, Plaintiffs are without
capacity to bring suit under § 10101, and Defendants’ motion for summary judgment on this
claim is granted.
2. Claims arising under the First and Fourteenth Amendments
Next, Plaintiffs assert that the burden placed on the right to vote by the handwritten date
requirement violates the First and Fourteenth Amendments. In particular, Plaintiffs argue that
the government lacks an important interest to justify the burden imposed by the handwritten date

requirement. There are two steps to analyzing this claim. First, this Court must set out the
burden imposed by the regulation, which, in turn, will determine the level of scrutiny to be
applied. See Burdick v. Takushi, 504 U.S. at 433–44. Second, this Court must apply the
appropriate level of scrutiny to the regulation. See id.
On the first step, this Court concludes that the burden imposed by the handwritten date
requirement is slight. That voters must provide a handwritten date next to the voter’s signature
is a minor limitation on the fundamental right to vote. The parties to this matter agree on this
point. See Pls. MSJ 16. Accordingly, the regulation will survive if an important regulatory
interest exists to support it.
This Court concludes that there are important interests sufficient to sustain the regulation
in light of the minor requirement imposed. Indeed, these interests were recently reviewed by the
Pennsylvania Supreme Court. See In re Canvass of Absentee and Mail-in Ballots of Nov. 3, 2020
General Election, 241 A.3d 1058 (2020)). There, two opinions reviewed the differing views on

this issue. See id. The plurality opinion concluded that the voter declaration date requirement
“does not implicate any weighty interest.” See id. at 1078. However, Justice Dougherty, writing
a concurring and dissenting opinion signed by then-Chief Justice Saylor and Justice Mundy,
concluded that there was “an unquestionable purpose behind requiring electors to date and sign
the declaration.” See id. at 1090–91 (Dougherty, J., concurring and dissenting). As Justice
Dougherty noted, “the date on the ballot envelope provides proof of when the ‘elector actually
executed the ballot in full, ensuring their desire to cast it in lieu of appearing in person at a
polling place.’” See id. at 1090 (Dougherty, J., concurring and dissenting) (quoting In re: 2,349
Ballots in the 2020 General Election, No. 1162 C.D. 2020, 2020 WL 6820816 (Pa. Commw. Ct.
Nov. 19, 2020)). Moreover, Justice Dougherty noted that the date next to the voter declaration

“prevents the tabulation of potentially fraudulent back-dated votes.” See id. (Dougherty, J.,
concurring and dissenting).
Justice Dougherty’s concurring and dissenting opinion was cited with approval by the
Commonwealth Court in its review of the undated ballots at issue here. See Ritter v. Lehigh
Cnty. Bd. of Elections, No. 1332 C.D. 2021, 2022 WL 16577, at *9 (Pa. Commw. Ct. Jan. 3,
2022). In reviewing Ritter’s challenge to the LCBE’s decision to count the undated ballots, the
Commonwealth Court found that Justice Dougherty’s opinion “persuasively explains why there
are ‘weighty interests’” that support the handwritten date requirement. See id. Accordingly,
having “adopted the rationale of [Justice Dougherty’s opinion] as persuasive authority,” the
Commonwealth Court concluded “that the dating of mail-in ballots . . . is justified by ‘weighty
interests’ . . . .” See id.
While the opinions of Justice Dougherty and the Commonwealth Court do not bind this
Court, this Court finds them persuasive in its own review of this claim.7 In particular, this Court

concludes that the Commonwealth of Pennsylvania, as well as its citizens, have important
interests in the integrity of the election process by holding fair, efficient, and fraud-free elections
that are supported by the handwritten date requirement. An elector’s compliance with the
signature and date requirement is an important guard against fraud. Where an elector fully
complies with the instructions on the outer envelope, the electoral authorities conducting the
election can be assured of the date on which the ballot was executed. Where, however, the outer
envelope remains undated, the possibility for fraud is heightened, as individuals who come in
contact with that outer envelope may, post hoc, fill in a date that is not representative of the date
on which the ballot was executed. Moreover, that the parties agree to the timeliness of the
ballots in this particular case does not alter the analysis. That these Plaintiffs returned their

7 This Court also finds persuasive the rationale of Justice Wecht in his concurring and
dissenting opinion. See In re Canvass November 3, 2020, 241 A.3d at 1079; see also Ritter,
2022 WL 16577, at *4 (noting Justice Wecht’s opinion “served as a tie-breaker in the case”).
Therein, Justice Wecht expressed his “increasing discomfort with [the Pennsylvania Supreme]
Court’s willingness to peer behind the curtain of mandatory statutory language in search of some
unspoken directory intent.” See In re Canvass November 3, 2020, 241 A.3d at 1080. Justice
Wecht agreed with the proposition that “the real danger” to our democracy is “leaving it to each
county board of election to decide what laws must be followed (mandatory) and what laws are
optional (directory) . . . .” See id. 1087 (quoting In re 2,349 Ballots, slip op. at 12–13). This
Court is persuaded by Justice Wecht’s analysis. The handwritten date requirement is mandatory,
and to permit each county election board to read it otherwise could well result in disparate vote-
counting policies based on the same statutory language. As Justice Wecht suggested, the policy
determination of “what requirements are necessary to ensure the security of our elections against
fraud” is one best left to the legislature. See id.
ballots before the deadline does not obviate the requirement’s general purpose of combatting
fraud in elections.
Accordingly, this Court finds that an important public interest in the integrity of an
election process that ensures fair, efficient, and fraud-free elections is served by compliance with

the statute mandating the handwritten date requirement. These important government interests
outweigh the minor condition imposed by the handwritten date requirement. Therefore,
summary judgment is granted in Defendants’ favor on Plaintiffs’ constitutional claim.
VI. CONCLUSION
Plaintiffs asserted two claims for relief, and following a review of each, this Court enters
judgment in Defendants’ favor on both claims. First, Plaintiffs lack the capacity to bring suit
under § 10101. Second, the handwritten date requirement does not pose an undue burden on
Plaintiffs’ right to vote under the First and Fourteenth Amendments. Accordingly, summary
judgment is entered in Defendants’ favor on both counts – the relief requested in Plaintiffs’
motion for summary judgment is denied.

A separate Order follows.

BY THE COURT:

/s/ Joseph F. Leeson, Jr.________
JOSEPH F. LEESON, JR.
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10402905. Public record. Not legal advice.