holding that private plaintiffs may enforce the Materiality Provision via 42 U.S.C. § 1983
How later courts described this case
- holding that private plaintiffs may enforce the Materiality Provision via 42 U.S.C. § 1983
- concluding that § 1971 does secure a private right enforceable under § 1983
- observing that the county board of elections “counted ballots with obviously incorrect dates”
Written by the judges who cited it.
The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 22-1499
_______________
MS. LINDA MIGLIORI; FRANCIS J. FOX; RICHARD E.
RICHARDS; KENNETH RINGER; SERGIO RIVAS,
Appellants
v.
ZACHARY COHEN,
Intervenor – Plaintiff
v.
LEHIGH COUNTY BOARD OF ELECTIONS
v.
DAVID RITTER,
Intervenor - Defendant
________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
No. 5-22-cv-00397
District Judge: Honorable Joseph F. Leeson
______________________
Argued: May 18, 2022
_______________
Before: McKEE, GREENAWAY JR., and MATEY, Circuit
Judges.
(Opinion filed: May 27, 2022)
Adriel I. Cepeda Derieux
Sophia Lin Lakin
Stephen A. Loney, Jr.
Ari J. Savitzky [Argued]
Marian K. Schneider
Richard T. Ting
Witold J. Walczak
American Civil Liberties Union
125 Broad Street
18th Floor
New York, NY 10004
Connor P. Hayes
110 Piper Drive
Pittsburgh, PA 15234
Counsel for Plaintiff-Appellants
Adam C. Bonin
400
121 South Broad Street
Philadelphia, PA 19107
Counsel for Intervenor-Plaintiff-Appellee
Joshua Mazin [Argued]
Lucas J. Repka
RepkaMazin
108 East Center Street
Nazareth, PA 18064
Counsel for Intervenor-Defendant-Appellee
James G. Gorman
Francis G. Notarianni
Shohin H. Vance
Joshua J. Voss [Argued]
Samantha G. Zimmer
Kleinbard
Three Logan Square
1717 Arch Street, 5th Floor
Philadelphia, PA 19103
Counsel for Intervenor-Defendant-Appellee
Jacob B. Boyer [Argued]
Michael J. Fischer
2
Office of Attorney General of Pennsylvania
1600 Arch Street
Suite 300
Philadelphia, PA 19103
Counsel for Amicus Appellant Commonwealth
of Pennsylvania
Noah Bokat-Lindell [Argued]
Tovah R. Calderon
United States Department of Justice
Civil Rights Division, Appellate Section
P.O. Box 14403
Ben Franklin Station
Washington, DC 20044
Counsel for Amicus Appellant United States of
America
Edward M. Wenger
Holtzman Vogel Baran Torchinsky & Josefiak
2300 N Street N.W.
Suite 643-A
Washington, D.C. 20037
Counsel for Amicus Appellee The Honest
Elections Project
Zachary M. Wallen
301 South Hills Village Drive
Suite LL200-420
Pittsburgh, PA 15241
Counsel for Amici Appellee Speaker
Pennsylvania House of Representatives,
President Pro Tempore Pennsylvania Senate,
Majority Leader of the House of
Representatives, Majority Leader of the
Pennsylvania Senate
3
_____________
OPINION
______________
McKee, Circuit Judge.
The Materiality Provision of the Civil Rights Act1
prohibits any “person acting under color of law [from]
deny[ing] the right of any individual to vote in any election
because of an error or omission . . . if such error or omission
is not material in determining whether such voter is qualified .
. . to vote in such election.”2 In Pennsylvania, an error or
omission is material to a voter’s qualifications to vote if it is
pertinent to either the voter’s age, citizenship, residency, or
felony status3 or the timeliness of the ballot.4
We are asked to determine if a date on the outside of a
mail-in ballot, required under state law, is material to the
voter’s qualifications and eligibility to vote. However, in
resolving that question, we must decide whether private
plaintiffs can even bring this suit to enforce the Materiality
Provision.
We hold that private plaintiffs have a private right of
action to enforce § 10101 under 42 U.S.C. § 1983, and further
hold that the dating provisions contained in 25 Pa. Cons. Stat.
§§ 3146.6(a) and 3150.16 are immaterial to a voter’s
qualifications and eligibility under § 10101(a)(2)(B).
Accordingly, we will remand to the District Court and direct
that Court to enter an order that the undated ballots be
counted.
I. Factual Background
In 2019, the Pennsylvania General Assembly enacted
new mail-in voting provisions, which permitted all registered
voters to vote by mail.5 To receive the mail-in ballot, a voter
must first complete an application that requires the voter to
provide his or her name, address of registration, and proof of
1
52 U.S.C. § 10101(a)(2)(B).
2
Id.
3
See 25 Pa. Cons. Stat. §§ 1301(a), 2811, 3150.16(b).
4
Id. § 3146.6.
5
Act of Oct. 31, 2019, PA. LAWS 552, No.77 § 8.
4
identification.6 The county board of elections then verifies
that information and compares the application to the
information on record for the voter.7 If the information on the
request for a mail-in-ballot is consistent with the registration
information for that voter, the voter receives a ballot package
that contains a ballot, a secrecy envelope, a return envelope,
and instructions for completing the absentee or mail-in
ballot.8 The voter casts his or her vote by marking the ballot,
placing it in the secrecy envelope, and then placing the
secrecy envelope in the return envelope.9 Under the
Pennsylvania Election Code, the voter must “fill out, date
and sign the declaration,” otherwise known as the “voter
declaration” printed on the return envelope.10 The voter then
mails or delivers the ballot to the county elections board.11
Delivery is timely if received by the board of elections by
8:00 p.m. on Election Day.12 When county boards of elections
receive a mail-in ballot, the ballot’s envelope is stamped with
the date of receipt and logged into the Statewide Uniform
Registry of Electors (SURE) system.13
The Lehigh County Board of Elections (LCBE) held
an election on November 2, 2021, to fill vacancies for the
office of Judge of the Court of Common Pleas of Lehigh
County. Six candidates ran for three available judgeships.
Candidates Thomas Caffrey and Thomas Capehart received
the most votes and were sworn into office. During the
counting of the ballots, the LCBE set aside 257 out of
approximately 22,000 mail-in or absentee ballots that lacked a
handwritten date next to the voter declaration signature. The
LCBE also received four ballots with the date in the wrong
location on the outer envelope and set those aside. It is
undisputed that all of these ballots were received by the
deadline of 8:00 p.m. on election day. As of November 15,
6
25 Pa. Cons. Stat. §§ 3146.2, 3150.12.
7
Pa. Dep’t of State, Guidance Concerning Examination of
Absentee and Mail-In Ballot Return Envelopes at 2 (Sept. 11,
2020).
8
JA 165.
9
JA 166.
10
25 Pa. Cons. Stat. §§ 3146.6(a), 3150.16(a).
11
Id.
12
Id.
13
Id. § 1222.
5
2021, candidate David Ritter received the third most votes in
the election, which is seventy-four votes more than the
candidate in fourth place, Zachary Cohen.
II. Procedural History
The LCBE convened a public hearing on November
15, 2021, to consider whether to count the disputed (i.e.,
undated) ballots. During the hearing, the chief clerk testified
and offered his conclusion that the undated declaration ballots
were not effective and should not be counted because the
declaration on the outside envelope was undated. Similarly,
the LCBE’s solicitor testified that he understood that the
Pennsylvania Department of State had advised that a dated
declaration was required. There was also testimony that the
LCBE “ha[d] decided to count ballots where voters provided
their birthday dates.”14 The LCBE voted 3-0 to count the
undated ballots.
On November 17, 2021, Ritter appealed with the
Lehigh County Court of Common Pleas. An evidentiary
hearing and oral argument followed. The trial court later
issued an opinion and order on November 30, which affirmed
the LCBE’s decision to count the disputed ballots.
Ritter then appealed the trial court’s decision to the
Commonwealth Court of Pennsylvania. The court granted a
stay pending to the Court of Common Pleas. That court
prohibited the LCBE from opening and counting the disputed
ballots. On January 3, 2022, the court issued its opinion and
order, ultimately concluding that the undated ballots should
not be counted. However, on January 27, the trial court
entered an order, directing the LCBE to count the four
misdated ballots but not the 257 undated ballots.15
On January 31, Plaintiffs Linda Migliori, Sergio Rivas,
Richard Richards, Francis J. Fox, and Kenneth Ringer
(Voters) sued the LCBE in the Eastern District of
Pennsylvania. They argued that the LCBE’s decision to not
count their votes simply because they had not entered the date
on the outside envelope violated their rights under the
14
JA 254.
15
The Supreme Court of Pennsylvania denied a petition for
allowance of appeal by the LCBE on the same day. Ritter v.
Lehigh Cnty. Bd. of Election, No. 9 MAL 2022, 2022 WL
244122 (Pa. Jan. 27, 2022).
6
Materiality Provision of the Civil Rights Act. Ritter and
Cohen both intervened in the action, and the parties cross-
moved for summary judgment.16
Voters are five individuals between the ages of 66 and
76 residing in Lehigh County. Some are Democrats and some
are Republicans. They used mail-in ballots in the November
2021 county elections.17 Their ballots, along with 252 other
Lehigh County mail-in ballot voters,18 were set aside and not
counted merely because they did not write a date on the
envelope.19 We again note that it is undisputed that their
ballots were received before the 8:00 p.m. deadline and the
only thing that prevents their vote from being counted is the
fact that they did not enter a date on the outside envelope.20
On March 16, 2022, the District Court granted the
LCBE and Ritter’s motions for summary judgment.21 The
Court held that there was no private right of action to enforce
the Materiality Provision.22 This expedited appeal followed.
III. Discussion23
As noted at the outset, we must determine whether the
District Court erred in finding Voters have no right of action
to enforce the Materiality Provision of the Civil Rights Act.
16
Migliori v. Lehigh Cnty. Bd. of Elections, No. 5:22-cv-
00397, 2022 WL 802159, at *1 (E.D. Pa. Mar. 16, 2022).
17
Id.
18
According to Cohen’s campaign, of the disputed ballots the
“average age of these voters was 71 at the time they voted.
224 of them were over 55 and 193 were over 65. Fifteen of
the [d]isputed [b]allots came from voters over the age of 90,
one of whom was 100 years old and another was 103 years
old.” JA 169.
19
Migliori, 2022 WL 802159, at *1.
20
As noted above, their votes would have been counted if
they had entered any date, even an obviously incorrect one.
21
Migliori, 2022 WL 802159, at *15.
22
Id.
23
The District Court had jurisdiction pursuant to 28 U.S.C. §
1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review a grant of summary judgment de novo. Tundo v.
County of Passaic, 923 F.3d 283, 286 (3d Cir. 2019). We also
review a district court’s legal conclusions de novo. Acierno v.
Cloutier, 40 F.3d 597, 609 (3d Cir. 1994) (en banc).
7
We conclude that it did and reverse. We hold that Voters may
enforce the Materiality Provision of the Civil Rights Act (52
U.S.C. § 10101(a)(2)(B)) by an action brought under 42
U.S.C. § 1983. Accordingly, we need not decide whether
Congress also intended to create an implied right of action.24
1. Enforcement Via 42 U.S.C. § 198325
In Gonzaga University v. Doe, the Supreme Court held
that a federal statute that unambiguously confers an
individual right is presumptively enforceable by private
plaintiffs via § 1983.26 Accordingly, to determine whether a
federal statute is enforceable by private plaintiffs via § 1983,
we must first ask “whether Congress intended to create a
federal right.”27 If a federal right is found, we then ask
24
Moreover, this matter is expedited and comes before us on
cross motions for summary judgment. There are no genuine
disputes of material fact for the District Court to resolve. We
will resolve the underlying legal issues in the interest of
judicial economy rather than remanding the case back to the
District Court for a legal ruling that could result in further
delay and an additional appeal. See Hudson United Bank v.
LiTenda Mortg. Corp. 142 F.3d 151, 159 (3d Cir. 1998).
25
Appellees argue that Voters waived whether they could
enforce the Materiality Provision via § 1983 because it “was
not developed below.” Appellee Ritter Br. at 33; see also
Appellee LCBE Br. at 9. Though they describe the issue as
waiver, it is unclear whether the Appellees are really making
a forfeiture argument here because they contend that Voters at
no point adequately developed this argument below. See
Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct.
13, 17 n.1 (2017) (“The terms waiver and forfeiture—though
often used interchangeably by jurists and litigants—are not
synonymous. ‘[F]orfeiture is the failure to make the timely
assertion of a right [;] waiver is the ‘intentional
relinquishment or abandonment of a known right.’”
(alterations in original)). Regardless, we find this argument
unpersuasive as Voters clearly pled that they were asserting
their claims through § 1983 throughout their complaint.
26
536 U.S. 273, 284 (2002).
27
Id. at 283 (emphasis omitted).
8
whether defendants rebutted the presumption that it can be
enforced in an action under § 1983.28
The District Court found that the Materiality
Provision unambiguously confers a personal right because it
“places ‘[a]ll citizens’ qualified to vote at the center of its
import and provides that they ‘shall be entitled and allowed’
to vote.”29 We agree.
Accordingly, we need only decide if Appellees
rebutted the presumption that this right is enforceable under §
1983. A defendant can rebut the presumption but only by
“showing that Congress ‘specifically foreclosed a remedy
under § 1983.’”30 The presumption is generally only rebutted
in exceptional cases.31 To rebut the presumption, a defendant
must point to either “specific evidence from the statute itself”
or “a comprehensive enforcement scheme that is incompatible
with individual enforcement under § 1983.”32 Appellees
cannot establish either.
The text of § 10101 does not preclude a § 1983
remedy, and neither Appellee argues that it does. Specifically,
§ 10101(d) explains that federal courts “shall have
jurisdiction of proceedings instituted pursuant to this section
and shall exercise the same without regard to whether the
party aggrieved shall have exhausted any administrative or
other remedies.”33 Thus, this section specifically
contemplates an aggrieved party (i.e., private plaintiff)
bringing this type of claim in court. It does not shut the door
on the mechanisms by which a party may pursue enforcing
their right under the statute.
Nor does § 10101 include a comprehensive
enforcement scheme that is incompatible with individual
enforcement under § 1983 and therefore indicative of a
congressional intent to foreclose a private right of action. The
Supreme Court has found that statutory enactments preclude
private enforcement actions pursuant to § 1983 in very few
instances. In doing so, the Court “ha[s] placed primary
28
See id.
29
Migliori, 2022 WL 802159, at *10 (alteration in original).
30
Gonzaga, 536 U.S. at 284 n.4 (citing Smith v. Robinson,
468 U.S. 992, 1004–05 n.9 (1984)).
31
Livadas v. Bradshaw. 512 U.S. 107, 133 (1994).
32
Gonzaga, 536 U.S. at 284 n.4.
33
52 U.S.C. § 10101(d).
9
emphasis on the nature and extent of that statute’s remedial
scheme.”34 In Middlesex County Sewerage Authority v.
National Sea Clammers Ass’n, the Court discussed how the
relevant statute both provided “a panoply of enforcement
options, including noncompliance orders, civil suits, and
criminal penalties” for the agency’s use and authorized
“private persons to initiate enforcement actions” in several
provisions.35 The Court thus concluded it was “hard to
believe that Congress intended to preserve the § 1983 right of
action when it created so many specific statutory remedies.”36
In Smith v. Robinson, the Court explained how “the review
scheme in the [statute] permitted aggrieved individuals to
invoke ‘carefully tailored’ local administrative procedures
followed by federal judicial review.”37 The Court explained
“that Congress could not possibly have wanted [individuals]
to skip these procedures and go straight to court by way of §
1983.”38
Appellees argue that the inclusion of a right of action
for the United States precludes a right of action for private
plaintiffs.39 It is true that the statute refers to the Attorney
General’s enforcement ability.40 But this is distinguishable
from the agency authorizations recognized in Sea Clammers.
Here, as Intervenor-Appellee Ritter concedes, “the Attorney
General’s enforcement authority is not made exclusive.”41
Nor does this statute include an express provision for only
specific situations for which private suits are authorized.
Whereas in Sea Clammers, because the statute expressly
authorized citizen suits in specific provisions, the Court could
not assume that Congress intended to authorize additional
judicial remedies for private citizens where it was not
34
Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 253
(2009).
35
Blessing v. Freestone, 520 U.S. 329, 347 (1997) (citing
Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers
Ass’n., 453 U.S. 1, 13–14, 20 (1981)).
36
Id.
37
Id. (quoting Smith v. Robinson, 468 U.S. 992, 1009 (1984)).
38
Id. (citing Smith, 468 U.S. at 1011).
39
See Appellee Ritter Br. at 38–39; Appellee LCBE Br. at 12.
40
See 52 U.S.C. § 10101(c).
41
Appellee Ritter Br. at 39.
10
expressly stated.42 Because the statute here does not contain
this type of limiting provision and the Attorney General’s
enforcement authority is not exclusive, the presumption of a
private right of enforcement under § 1983 is simply not
rebutted.
Moreover, this case is also distinguishable from Smith.
Unlike in Smith, this statute does not provide for “aggrieved
individuals to invoke ‘carefully tailored’ local administrative
procedures.”43 Instead, as mentioned above, the statute
expressly gives aggrieved parties direct access to the federal
courts “without regard to whether the party aggrieved shall
have exhausted any administrative or other remedies.”44 This
reinforces our conclusion that the presumption of a private
right of action under § 1983 is not rebutted. 45
In holding that there was no private right to enforce the
Materiality Provision of the Civil Rights Act, the District
Court concluded that under Wisniewski v. Rodale, Inc., the
Attorney General’s authority to enforce § 10101 is
inconsistent with a private remedy and therefore rebuts the
presumption that arises under Gonzaga.46 However,
Wisniewski involved an implied right of action that did not
implicate § 1983.47 Moreover, for reasons we do not
understand, the District Court neither cited § 1983 nor
42
Sea Clammers, 453 U.S. at 14–15.
43
Blessing, 520 U.S. at 1363 (quoting Smith, 468 U.S. at
1009).
44
52 U.S.C. § 10101(d).
45
The Court also found that a statute precluded § 1983 claims
in City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 120
(2005). Intervenor-Appellee Ritter relies on this case as
support for whether the presumption was rebutted here. His
reliance is misguided, however, as that case found the
relevant statute precluded § 1983 claims because Congress
expressly narrowed the availability of privately enforceable
judicial remedies. Id. at 121. Whereas here, the statute does
not provide for a limited private remedial scheme.
46
Migliori, 2022 WL 802159, at *10.
47
Wisniewski v. Rodale, Inc., 510 F.3d 294, 301 (3d Cir.
2007).
11
engaged in Gonzaga’s two-part test.48 Moreover, Wisniewski
is readily distinguishable because it involved comprehensive
administrative proceedings, including a provision that
allowed an administrative agency to bring civil suits. Section
10101(c) only provides for suits by the Attorney General. It
does not establish a cause of action for private individuals.
When Congress added a provision for civil enforcement by
the Attorney General,49 it acknowledged that private
individuals had enforced the substantive rights in § 10101(a)
via § 1983 for nearly a century.50 Moreover, it did not make
the Attorney General’s enforcement mandatory.51
Finally, the mere existence of a public remedy by the
Attorney General is inadequate, without more, to rebut the
presumption of a private right of action under § 1983.52
“[T]he existence of a more restrictive private remedy for
statutory violations has been the dividing line between those
cases in which . . . an action would lie under § 1983 and those
in which . . . it would not.”53 And here, § 10101 “contains no
express private remedy, much less a more restrictive one.”54
48
The District Court applied only the implied right of action
framework under Alexander v. Sandoval, 532 U.S. 275
(2001). Migliori, 2022 WL 802159, at *12–13. Under this
test, an implied right of action exists if “a statute . . .
manifest[s] Congress’s intent to create (1) a personal right,
and (2) a private remedy.” Three Rivers Ctr. for Indep. Living
v. Housing Auth. of City of Pittsburgh, 382 F.3d 412, 421 (3d
Cir. 2004) (citing Sandoval, 532 U.S. at 286). The District
Court did cite Gonzaga in answering the first prong of this
test, but that is because both the § 1983 analysis under
Gonzaga and the implied right of action analysis under
Sandoval begin with this question. See Migliori, 2022 WL
802159, at *12. As stated above, because we need not decide
whether Congress also intended to create an implied right of
action, we need not engage with the test under Sandoval.
49
52 U.S.C. § 10101(c).
50
H.R. REP. No. 85-291, at 1977 (1957).
51
52 U.S.C. § 10101(c) (“[T]he Attorney General may
institute for the United States . . . a civil action . . . .”
(emphasis added)).
52
See Fitzgerald, 555 U.S. at 256.
53
Id. (first omission in original)
54
Id.
12
Accordingly, for all the reasons stated above, we find that
Appellees have failed to rebut the presumption of an
enforceable right under § 1983. We therefore hold that private
plaintiffs may enforce the Materiality Provision via § 1983,
and the District Court erred in finding that Voters have no
right of action.
2. Materiality55
Because we find that private plaintiffs may enforce the
Materiality Provision via § 1983, we now turn to whether the
LCBE’s refusal to count Voters’ ballots for omitting the date
violates this provision.56 To answer this query, we must ask
55
Intervenor-Appellee Ritter has argued that Voters claim is
barred under the doctrine of laches. Appellee Ritter Br. at 22.
We review a decision about the doctrine of laches for abuse
of discretion. Kars 4 Kids, Inc. v. America Can!, 8 F.4th 209,
219 n.10 (3d Cir. 2021). This argument is unavailing and
merits only the briefest of discussion because Voters timely
filed their complaint. We thus do not find that the District
Court abused its discretion in concluding that “Ritter has
failed to established Plaintiffs engaged in inexcusable delay
in the filing of this matter.” Migliori, 2022 WL 802159, at *7.
We also reject Ritter’s argument that Voters lack Article III
standing for the remedy they seek. Ritter confuses standing
for scope of remedy, which is non-jurisdictional and thus
subject to forfeiture. See Barna v. Bd. of Sch. Dirs. of Panther
Valley Sch. Dist., 877 F.3d 136, 147 (3d Cir. 2017). Because
this argument was not raised below, it is forfeited.
56
The Materiality Provision applies to any “record or paper
relating to any application, registration, or other act requisite
to voting.” § 10101(a)(2)(B). We find that the mail-in ballot
squarely constitutes a paper relating to an act for voting. We
reject Appellees’ argument that the Materiality Provision does
not apply here because the provision applies only to instances
of racial discrimination and voter registration. Appellee Ritter
Br. at 44, 46. When interpreting a statute, we first start with
the plain meaning of the language. Mitchell v. Horn, 318 F.3d
523, 535 (3d Cir. 2003). If the plain meaning is
“unambiguous, then the first [step] is also the last.” In re
Phila. Newspapers, LLC, 599 F.3d 298, 304 (3d Cir. 2010)
(quoting Conn. Nat’l Bank v. Germain, 503 U.D. 249, 253–54
13
whether this requirement is material in determining whether
such individual is qualified to vote under Pennsylvania law.
In Pennsylvania, a voter is qualified if, by Election Day, “they
are 18 years old, have been a citizen for at least one month,
have lived in Pennsylvania and in their election district for at
least thirty days, and are not imprisoned for a felony
conviction.”57 In other words, the requirement is material if it
goes to determining age, citizenship, residency, or current
imprisonment for a felony.
Appellees cannot offer a persuasive reason for how
this requirement helped determine any of these
qualifications.58 And we can think of none. Appellees try to
make several reaching arguments. None of which we find
persuasive. For example, Appellees argue that the date
confirms a person is qualified to vote from their residence
since a person may only vote in an election district s/he has
resided in for at least thirty days before the election and one’s
residency could change in a matter of days.59 It is unclear how
this date would help determine one’s residency, but even
supposing it could, this argument assumes the date on the
envelope is correct. However, the LCBE counted ballots with
obviously incorrect dates.60
Intervenor-Appellee Ritter also argues that the date
requirement is “material in determining an elector’s
qualification to vote in future elections” because a voter
found guilty of knowingly signing a voter declaration that is
false is not allowed to vote for four years.61 This argument is
(1992)). Here, the text of the provision does not mention
racial discrimination and includes “other act[s] requisite to
voting” in a list alongside registration. Thus, we cannot find
that Congress intended to limit this statute to either instances
of racial discrimination or registration.
57
25 Pa. Cons. Stat. §§ 1301(a), 2811.
58
See Appellee Ritter Br. at 49–50.
59
Id. at 50.
60
The Deputy Secretary for Elections & Commissions sent an
email on behalf of the Pennsylvania Department of State
reminding counties that “there is no basis to reject a ballot for
putting the ‘wrong’ date on the envelope, nor is the date
written used to determine the eligibility of the voter. You
should process these ballots normally.” JA 192.
61
Appellee Ritter Br. at 54.
14
particularly unpersuasive. Under the provision, materiality is
limited to errors or omissions determining qualification “to
vote in such election,” not future elections.62
Intervenor-Appellee Ritter also claims that the date
requirement “serves a significant fraud-deterrent function”
and “prevents the tabulation of potentially fraudulent back-
dated votes.”63 Even if this is true, the provision is clear that
an “error or omission is not material” unless it serves to
“determin[e] whether such individual is qualified under State
law to vote in such election.”64 Fraud deterrence and
prevention are at best tangentially related to determining
whether someone is qualified to vote. But whatever sort of
fraud deterrence or prevention this requirement may serve, it
in no way helps the Commonwealth determine whether a
voter’s age, residence, citizenship, or felony status qualifies
them to vote. It must be remembered that all agree that the
disputed ballots were received before the 8:00 p.m. deadline
on Election Day. It must also be remembered that ballots that
were received with an erroneous date were counted. We are at
a loss to understand how the date on the outside envelope
could be material when incorrect dates—including future
dates—are allowable but envelopes where the voter simply
did not fill in a date are not. Surely, the right to vote is “made
of sterner stuff” than that.
Ironically even the LCBE—the main defendant in this
case—at first agreed that the omissions were immaterial.65
The nail in the coffin, as mentioned above, is that ballots were
only to be set aside if the date was missing—not incorrect. If
the substance of the string of numbers does not matter, then it
is hard to understand how one could claim that this
requirement has any use in determining a voter’s
qualifications. As Voters persuasively argue, “[t]he fact that
anything that looks like a date, including a date from decades
past or future, is acceptable highlights why the handwritten-
envelope date cannot be material to accurately assessing
anything.” Moreover, the Deputy Secretary for Elections &
Commissions explicitly stated that the date is not used “to
62
52 U.S.C. § 10101(a)(2)(B) (emphasis added).
63
Appellee Ritter Br. at 55.
64
52 U.S.C. § 10101(a)(2)(B).
65
Migliori, 2022 WL 802159, at *3 (“[T]he LCBE voted
unanimously to count the disputed ballots.”).
15
determine the eligibility” (i.e., qualifications) of a voter.66
This, without more, slams the door shut on any argument that
this date is material.
Upon receipt, the LCBE timestamped the ballots,
rendering whatever date was written on the ballot superfluous
and meaningless. It was not entered as the official date
received in the SURE system, nor used for any other purpose.
Appellees have offered no compelling reasons for how these
dates—even if correct, which we know they did not need to
be—help determine one’s age, citizenship, residency, or
felony status. And we can think of none. Thus, we find the
dating provisions under 25 Pa. Cons. Stat. §§ 3146.6(a) and
3150.16(a) are immaterial under the Materiality Provision.
All five Voters were qualified to vote in Lehigh
County when they submitted their mail-in ballots and
submitted their ballots on time. Accordingly, because their
omissions of the date on their outside envelopes is immaterial
to determining their qualifications, the LCBE must count their
ballots. Otherwise, the LCBE will violate the Materiality
Provision by denying Voters their right to vote based on an
omission immaterial to determining their qualifications to
vote.
IV. Conclusion
Congress intended § 1983 to be a channel for private
plaintiffs to enforce the Materiality Provision of the Civil
Rights Act. That provision was created to ensure qualified
voters were not disenfranchised by meaningless requirements
that prevented eligible voters from casting their ballots but
had nothing to do with determining one’s qualifications to
vote. Ignoring ballots because the outer envelope was
undated, even though the ballot was indisputably received
before the deadline for voting serves no purpose other than
disenfranchising otherwise qualified voters. This is exactly
the type of disenfranchisement that Congress sought to
prevent.
Accordingly, we find the dating provisions in 25 Pa.
Cons. Stat. §§ 3146.6(a) and 3150.16(a) are immaterial under
§ 10101(a)(2)(B). There is no basis on this record to refuse
to count undated ballots that have been set aside in the
November 2, 2021, election for Judge of the Common Pleas
66
JA 192.
16
of Lehigh County. We will thus remand this matter to the
District Court and direct that Court to enter an order that the
undated ballots be counted.
17
MATEY, Circuit Judge, concurring in the judgment.
Much about this case is not disputed. And given the lack
of genuine disagreement on key questions, I agree that the
Appellants can enforce the Materiality Provision of the Civil
Rights Act, 52 U.S.C. § 10101(a)(2)(B), under 42 U.S.C.
§ 1983.
For one, the Appellees did not challenge the argument
that § 10101(a)(2)(B) creates an individual federal right.1 At
all.2 That is significant because “[o]nce a plaintiff demonstrates
1
We have held that a statute creates a personal right
when it satisfies all three of Blessing v. Freestone’s factors:
“First, Congress must have intended that the provision in
question benefit the plaintiff. Second, the plaintiff must
demonstrate that the right assertedly protected by the statute is
not so ‘vague and amorphous’ that its enforcement would
strain judicial competence. Third, the statute must
unambiguously impose a binding obligation on the
States . . . [i.e., it] must be couched in mandatory, rather than
precatory, terms.” Ass’n of N.J. Rifle & Pistol Clubs Inc. v.
Port Auth. of N.Y. & N.J., 730 F.3d 252, 254 (3d Cir. 2013)
(alteration in original) (quoting Blessing v. Freestone, 520 U.S.
329, 340–41 (1997)). The statute must also use “rights-creating
language,” Lewis v. Alexander, 685 F.3d 325, 345 (3d Cir.
2012) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 287
(2002)), and focus on the individuals protected, not the entity
regulated, N.J. Primary Care Ass’n v. N.J. Dep’t of Hum.
Servs., 722 F.3d 527, 538 (3d Cir. 2013) (citing Gonzaga, 536
U.S. at 287–90).
2
At oral argument, Ritter conceded that the Materiality
Provision contains rights-creating language, Oral Arg. at
that a statute confers an individual right, the right is
presumptively enforceable by § 1983.” Sabree ex rel. Sabree
v. Richman, 367 F.3d 180, 183 n.7 (3d Cir. 2004) (quoting
Gonzaga, 536 U.S. at 284).
For another, the Appellees offered no evidence, and
little argument, that the date requirement for voter declarations
under the Pennsylvania Election Code, 25 Pa. Cons. Stat.
§§ 3146.6(a), 3150.16(a), is material as defined in
§ 10101(a)(2)(B). Instead, they agree that no party contests that
voter declarations with inaccurate dates were counted in this
election.3 Add up both concessions, and the Appellees have
little room left to defend the District Court’s decision.
But more room may exist in a future contest, and just
because a statute is sometimes ignored does not mean the
55:28–55:49, and the Lehigh County Board of Elections agreed
with all parts of Ritter’s argument, Oral Arg. at 1:01:09–
1:01:12. And “appellate courts do not sit as self-directed
boards of legal inquiry and research, but essentially as arbiters
of legal questions presented and argued by the parties before
them.” See Wright v. Spaulding, 939 F.3d 695, 704 (6th Cir.
2019) (alteration in original) (quoting Carducci v. Regan, 714
F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.)).
3
Which follows the current guidance of the
Pennsylvania Department of State that “there is no basis to
reject a ballot for putting the ‘wrong’ date on the envelope, nor
is the date written used to determine the eligibility of the voter.
You should process these ballots normally.” (App. at 79, 192.)
This guidance was confirmed by members of the Lehigh
County Board of Elections who stated they would even count
ballots with birthdates written instead of the date the voter
signed the declaration. (App. at 254–55.)
2
statute is always immaterial. Administrative guidance,
particularly on the process of counting ballots, has been known
to fluctuate. Perhaps the Commonwealth will change its rules
raising fresh facts and unforeseen outcomes in a different race.
Note, too, the importance of the time- and date-stamped ballots
here produced by the SURE system.4 A system that, despite its
name, could fail or freeze, or just run out of funding down the
road.5 Surely, the lack of that evidence might form a different
case and controversy, one where the materiality of the date on
the voter declaration might make a difference.
Those questions are for tomorrow. Today, it is enough
to conclude, as the majority does, that the Appellees have
explained no material issues left for litigation. For that reason,
I concur in the Judgment.
4
25 Pa. Cons. Stat. § 1222 (establishing Pennsylvania’s
electronic voter registration system, the SURE system, to be
implemented by regulations from the Commonwealth’s
Department of State).
5
Indeed, the only regulation that requires “[r]eturned
absentee ballots [to] be immediately stamped showing the time
and date of receipt” makes no mention of the SURE system. 4
Pa. Code § 171.14(a).
3