Amicus Curiae Brief — David Ritter, Petitioner v. Linda Migliori, et al.

Supreme Court briefAug 2, 2022

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No. 22-30

In the Supreme Court of the United States

__________

DAVID RITTER,

Petitioner,

LINDA MIGLIORI, FRANCIS J. FOX, RICHARD E.

RICHARDS, KENNETH RINGER, SERGIO RIVAS, ZAC

COHEN, AND LEHIGH COUNTY BOARD OF ELECTIONS,

Respondents.

__________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________________________

BRIEF FOR HONEST ELECTIONS PROJECT

AS AMICUS CURIAE IN SUPPORT

OF PETITIONER

__________

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay Street

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

Counsel for Amicus Curiae

QUESTION PRESENTED

Should this Court vacate the Third Circuit’s decision

under United States v. Munsingwear, Inc., 340 U.S. 36

(1950)?

TABLE OF CONTENTS

Page

Question Presented....................................................... i

Table of Authorities .................................................... iii

Interest of Amicus Curiae ........................................... 1

Summary of the Argument .......................................... 2

Argument ..................................................................... 6

The decision below will disrupt elections.........6

II. The decision below threatens the

constitutionality of the

materiality provision....................................... 13

Conclusion .................................................................. 20

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Allen v. Cooper, 140 S. Ct. 994 (2020) ....................... 16

Broyles v. Texas, 618 F. Supp. 2d 661 (SD Tex. 2009),

aff’d, 381 F. App’x 370 (CA5 2010) ...................... 14

City of Boerne v. Flores, 521 U.S. 507 (1997)...... 15, 18

City of Mobile v. Bolden, 446 U.S. 55 (1980) ............ 14

Commonwealth v. Cobbs, 256 A.3d 1192 (Pa. 2021) 10

Donald J. Trump for President, Inc. v. Boockvar, 493

F. Supp. 3d 331 (WD Pa. 2020) ...................... 11, 12

Fla. Prepaid Postsecondary Educ. Expense Bd. v.

Coll. Sav. Bank, 527 U.S. 627 (1999) .................. 18

Griffin v. Roupas, 385 F.3d 1128

(CA7 2004) ................................................ 10, 12, 18

Hooper v. California, 155 U.S. 648 (1895) ................ 19

In re 2,349 Ballots in 2020 Gen. Election, 241 A.3d

694, 2020 WL 6820816 (Pa. Commw. Ct. 2020) .... 3

In re Canvass of Absentee & Mail-in Ballots of Nov. 3,

2020 Gen. Election, 241 A.3d 1058 (Pa. 2020) ....... 3

In re Center Township Democratic Party Supervisor

Primary Election, 4 Pa. D. & C.4th 555

(C.P. 1989) ............................................................ 11

Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775

(SD Ind. 2006), aff’d sub nom. Crawford v. Marion

Cnty. Election Bd., 472 F.3d 949 (CA7 2007), aff’d,

553 U.S. 181 (2008) .............................................. 14

Kirksey v. City of Jackson, 663 F.2d 659

(CA5 1981) ............................................................ 14

Marks v. Stinson, 19 F.3d 873 (CA3 1994) ............... 10

Mays v. LaRose, 951 F.3d 775 (CA6 2020).................. 3

McDonald v. Bd. of Election Comm’rs of Chi., 394

U.S. 802 (1969) ....................................................... 3

NAMUDNO v. Holder, 557 U.S. 193 (2009) ....... 15, 16

Opening of Ballot Box of the First Precinct of

Bentleyville, 598 A.2d 1341

(Pa. Commw. Ct. 1991)......................................... 11

Pa. Democratic Party v. Boockvar, 238 A.3d 345 (Pa.

2020)........................................................................ 8

Reno v. Bossier Par. Sch. Bd., 520 U.S. 471

(1997) .................................................................... 14

Ritter v. Lehigh Cnty. Bd. of Elections, 272 A.3d 989,

2022 WL 16577 (Pa. Commw. Ct. 2022) ................ 3

Ritter v. Migliori, 142 S. Ct. 1824 (2022) .............. 2, 12

Shelby County v. Holder, 570 U.S. 529

(2013) ............................................ 13, 15, 16, 17, 18

Shelby County v. Holder, 679 F.3d 848

(CADC 2012) ......................................................... 16

Shelby County v. Holder, 811 F. Supp. 2d 424 (DDC

2011)...................................................................... 16

Stilp v. Commonwealth, 905 A.2d 918 (Pa. 2006) ...... 9

Storer v. Brown, 415 U.S. 724 (1974) .......................... 1

Tennessee v. Lane, 541 U.S. 509 (2004) .................... 16

Tex. Democratic Party v. Abbott, 978 F.3d 168 (CA5

2020)...................................................................... 18

United States v. Davis, 139 S. Ct. 2319 (2019) ... 19, 20

United States v. Georgia, 546 U.S. 151 (2006) ......... 15

United States v. Mississippi, 380 U.S. 128 (1965) .... 13

United States v. Munsingwear, Inc., 340 U.S. 36

(1950) ....................................................................... i

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. X................................................. 15

U.S. Const. amend. XV, § 2 ....................................... 15

U.S. Const. art. I, § 2, cl. 1 ........................................ 13

U.S. Const. art. I, § 4 ................................................. 13

U.S. Const. art. I, § 8 ................................................. 15

STATUTES

1 Pa. Stat. and Cons. Stat. Ann. § 1921(b) ............... 10

25 Pa. Stat. and Cons. Stat. Ann. § 3146.6(a) ............ 2

25 Pa. Stat. and Cons. Stat. Ann. § 3150.16(a) .......... 2

52 U.S.C. § 10101................................................... 2, 18

Act of Oct. 31, 2019, P.L. 552, No. 77.......................... 8

OTHER AUTHORITIES

CA3 Appellants’ Reply Brief, 2022 WL 1185151 (April

15, 2022)................................................................ 12

CA3 Brief for the United States as Amicus Curiae,

2022 WL 1045078 (Apr. 1, 2022) ......................... 18

Federalist No. 59........................................................ 15

Friedman, Comment, Inseverability Clauses in

Statutes, 64 U. Chi. L. Rev. 903 (1997) ................. 9

H.R. Rep. No. 88-914 (Nov. 20, 1963), reprinted in

1964 U.S.C.C.A.N. 2391 ....................................... 17

Honorable Seth Grove, Election Reform in

Pennsylvania: Missed Opportunities and

Continued Chaos (July 19, 2022),

https://perma.cc/2V93-D6BW ......................... 7, 8, 9

Jonathan Lai & Jeremy Roebuck, Fights over Pa.

election rules that seemed settled after 2020 have

now come roaring back, The Philadelphia

Inquirer, June 15, 2022, https://perma.cc/LYW54YT8 .................................................................... 7, 8

Mem. in Supp. of Pet’rs’ Emergency Appl. for

Peremptory J. and Summ. Relief, Chapman v.

Berks Cnty. Bd. of Elections, No. 355-MD-2022

(Pa. Commw. Ct. July 11, 2022), https://perma.cc/

X77G-34NK............................................................. 7

vii

Pet. for Review in the Nature of an Action for a

Declaratory J., Bonner v. Chapman, No. 364-MD2022 (Pa. Commw. Ct. July 20, 2022),

https://perma.cc/W7NV-RB9U ............................... 9

Voting by mail and absentee voting, MIT Election

Data & Science Lab (Mar. 16, 2021),

https://perma.cc/YY6H-9YB8 ............................... 18

INTEREST OF AMICUS CURIAE

The Honest Elections Project is a nonpartisan

organization devoted to supporting the right of every

lawful voter to participate in free and honest elections.

Through public engagement, advocacy, and publicinterest litigation, the Project defends the fair,

reasonable measures that voters put in place to protect

the integrity of the voting process. The Project

supports common-sense voting rules and opposes

efforts to reshape elections for partisan gain. As this

Court has explained, “there must be a substantial

regulation of elections if they are to be fair and honest

and if some sort of order, rather than chaos, is to

accompany the democratic processes.” Storer v. Brown,

415 U.S. 724, 730 (1974). The Project thus has a

significant interest in this important case. 1

1 All parties received timely notice of and consented to the filing

of this brief. No counsel for a party authored this brief in whole

or in part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than amicus curiae, its members, or its counsel

made a monetary contribution to its preparation or submission.

SUMMARY OF THE ARGUMENT

This case involves an effort to reinvent the federal

Civil Rights Act to strike down innumerable neutral

state voting laws that have nothing to do with even

alleged race discrimination. Courts have consistently

turned away similar efforts, but faced with an

emergency proceeding attacking Pennsylvania law,

the Third Circuit succumbed.

To protect voting legitimacy and orderly

administration of elections, Pennsylvania’s law

requires any person submitting a vote-by-mail ballot

to “date and sign” a declaration printed on the back of

the envelope. 25 Pa. Stat. and Cons. Stat. Ann.

§§ 3146.6(a), 3150.16(a). Tucked away in a federal

statute otherwise prohibiting race discrimination in

voting practices, the materiality provision forbids any

person “acting under color of law” “to deny 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 . . .

to vote.” 52 U.S.C. § 10101(a)(2)(B).

In an unprecedented decision, the Third Circuit

held that this materiality provision provides a private

cause of action and preempts state mail-in voting

requirements. Three Justices of this Court have

already recognized and the petitioner has already

explained why the Third Circuit’s reading “seems

plainly contrary to the statutory language.” Ritter v.

Migliori, 142 S. Ct. 1824, 1824 (2022) (Alito, J.,

dissenting from denial of application for stay). Mail-in

voting requirements pertain to voting itself, not an

“act requisite to voting” or voter qualifications. 2 Nor do

those requirements implicate the right to vote

protected by the statute. “[T]here is no constitutional

right to an absentee ballot.” Mays v. LaRose, 951 F.3d

775, 792 (CA6 2020) (citing McDonald v. Bd. of

Election Comm’rs of Chi., 394 U.S. 802, 807–09

(1969)). And when the government limits or regulates

voting by mail but leaves unencumbered voting in

person, courts universally recognize that “[i]t is thus

not the right to vote that is at stake here but a claimed

right to receive absentee [or mail] ballots.” McDonald,

394 U.S. at 807. For that reason, this Court has held

that, short of “in fact absolutely prohibit[ing]” a

plaintiff from voting in toto, the right to vote is not

impeded. Id. at 808 n.7.

These merits points need not be belabored,

however, because the question here is primarily

whether the Court should exercise its equitable power

to vacate the decision below. And on that point, two

significant reasons exist to vacate the Third Circuit’s

2 Even if these requirements went to voter qualification, failing to

date the ballot is material. A majority of the Pennsylvania

Supreme Court held that “a voter’s failure to comply with the

statutory requirement that voters date the voter declaration” is

not a “‘minor irregularity.’” In re Canvass of Absentee & Mail-in

Ballots of Nov. 3, 2020 Gen. Election, 241 A.3d 1058, 1079 (Pa.

2020) (Wecht, J., concurring and dissenting); id. at 1090

(Dougherty, J., concurring and dissenting); see Ritter v. Lehigh

Cnty. Bd. of Elections, 272 A.3d 989, 2022 WL 16577, at *9 n.8

(Pa. Commw. Ct. 2022) (table opinion). More, “[t]he presence of

the date” “establishes a point in time against which to measure

the elector’s eligibility to cast the ballot,” among other important

uses. In re 2,349 Ballots in 2020 Gen. Election, 241 A.3d 694, 2020

WL 6820816, at *6 (Pa. Commw. Ct. 2020) (table opinion)

(reversed on other grounds). Finally, that the Pennsylvania

legislature required dating establishes the requirement’s

materiality.

erroneous decision, apart from the splits it produces

and its stand-alone significance.

1. The decision below will cause chaos in upcoming

elections. Plaintiffs and the United States are

invoking the Third Circuit’s reasoning in cases across

the country to attack not individual ballot

determinations but the substance of state law voting

rules. Removing these guardrails, put in place by state

legislatures to protect election integrity and orderly

administration, will be a significant disturbance to the

fall elections and potentially cast doubt on election

results.

The threat of the decision below to Pennsylvania

elections is especially severe. Wielding the decision

below, Pennsylvania has issued guidance that counties

must disregard the Commonwealth’s voting rules, and

it is suing counties that try to adhere to those rules.

Apart from that election disruption, the decision below

threatens Pennsylvania’s entire mail-in voting

process. That process was put in place for the first time

in 2019, when the General Assembly permitted noexcuse mail-in voting conditioned on guardrails like

the date requirement. It enforced that condition via a

nonseverability clause in the law by which the entire

law is voided if a provision is invalidated—even just in

an application. The decision below invalidated

Pennsylvania’s dating requirement under federal law,

so the nonseverability clause may require that the

entire mail-in process be voided. Needless to say, this

threat will exacerbate confusion in upcoming

Pennsylvania elections, making it hard for voters to

know how to vote and for Commonwealth officials to

run an orderly election. Vacatur of the decision below

is necessary.

2. The decision below also threatens the

constitutionality of the federal materiality provision.

Congress lacks general authority to regulate state

elections. It can rely here only on its enforcement

authority under the Fifteenth Amendment, which

prohibits intentional discrimination in voting based on

race. But breaking with other courts, the Third Circuit

held that the materiality provision was not “limit[ed]”

to “instances of racial discrimination.” App. 18 n.56.

This holding would unmoor the materiality

provision from its constitutional dock. The provision

would not be congruent and proportional to any record

of Fifteenth Amendment violations, for Congress was

clear that the provision targeted discriminatory acts

by local officials, not discriminatory laws. Congress

has no current record of voting rules (much less

absentee requirements) being used as cover for

pervasive race discrimination. And as interpreted by

the Third Circuit, the materiality provision has no

nexus to discrimination, for it does not require even a

showing of discriminatory effect, much less intent.

Constitutional avoidance—the real canon applicable

when

statutory

reading

actually

unconstitutional—thus reiterates the need for this

Court to vacate the decision below, if not reverse it.

Otherwise, the materiality provision may well be

unconstitutional.

To prevent chaos from overtaking elections this

fall, the Court should vacate or reverse the decision

below.

ARGUMENT

I. The decision below will disrupt elections.

This Court should vacate the Third Circuit’s

decision to prevent it from spawning chaos in

upcoming elections. The petitioner has identified cases

nationwide in which professional plaintiffs and the

United States are seeking to leverage the Third

Circuit’s erroneous reading of the materiality

provision to work mischief in state elections. Pet. 21,

29–30. That consequence is bad enough. But the Third

Circuit’s decision will cause special chaos in

Pennsylvania elections, for two reasons. First,

Pennsylvania itself is suing counties that dare follow

Commonwealth voting requirements. Second, noexcuse mail-in voting in Pennsylvania was permitted

for the first time in 2019, and included with the

legislative safeguards that the decision below

destroyed was a robust non-severability clause. Thus,

the decision below could well bring the entire

Pennsylvania mail-in voting regime into serious

question.

On the first point, not only has Pennsylvania

ordered all counties to count undated ballots in future

elections and started helping professional plaintiffs to

pick off other voting requirements one at a time, Pet.

11–12, its Department of State is now suing individual

counties that try to adhere to those requirements. As

the Philadelphia Inquirer recently explained, “[n]ew

lawsuits have revived questions that many thought

were long settled, beginning with the question of

whether to count undated mail ballots.” 3 Invoking the

3 Jonathan Lai & Jeremy Roebuck, Fights over Pa. election rules

that seemed settled after 2020 have now come roaring back, The

decision below and departing from its demand just last

year that counties “throw out undated mail ballots,” 4

Pennsylvania’s Department of State is now arguing

that “no county board can exclude a ballot from its

final election returns based on” a failure “to date the

declaration on a ballot return envelope.” 5 It argues

that “[t]he Third Circuit’s interpretation of federal law

should be followed” by the state courts, and it relies

even on the decision below’s questionable § 1983

analysis. 6

These efforts by Pennsylvania to undermine its

own voting rules will confuse voters, disrupt election

administration, and interfere with the integrity of

upcoming elections. As one recent report explained,

“Pennsylvanians continue to experience poorly

administered and somewhat chaotic elections, with

less access to the ballot, expensive litigation, and

delayed election results.” 7 Pennsylvania’s efforts to

use the decision below to further meddle with the

General Assembly’s work will heighten the difficulties

faced by Pennsylvanians. Pennsylvania “elections

officials . . . say[] the shifting landscape has left them

mired in uncertainty as rules that seem to be everchanging fuel public distrust and confusion.” 8 The

Philadelphia Inquirer, June 15, 2022, https://perma.cc/LYW54YT8.

4 Ibid.

5 Mem. in Supp. of Pet’rs’ Emergency Appl. for Peremptory J. and

Summ. Relief at 6, Chapman v. Berks Cnty. Bd. of Elections, No.

355-MD-2022 (Pa. Commw. Ct. July 11, 2022), https://perma.cc/

X77G-34NK.

6 Id. at 19.

7 Honorable Seth Grove, Election Reform in Pennsylvania: Missed

Opportunities and Continued Chaos, at 9 (July 19, 2022),

https://perma.cc/2V93-D6BW.

8 Lai & Roebuck, supra note 3.

decision below “left elections administrators and

candidates across the state scrambling.” 9 Particularly

given that the controversy giving rise to the decision

below appears moot, this Court should follow its usual

procedures and vacate the decision below, thereby

preventing the decision from spawning chaos in the

Commonwealth’s elections—many of which are

determined by a few votes. 10 The decision below leaves

critical questions about Pennsylvania elections up in

the air: “Which votes should be counted, which should

be rejected, and where does Pennsylvania draw the

line?” 11

The second and even more fundamental threat of

the decision below to Pennsylvania elections comes

from its effect on the entire mail-in voting regime. As

the decision below recognized, “[i]n 2019, the

Pennsylvania General Assembly enacted new mail-in

voting provisions.” App. 5. This law, Act 77, “created

for the first time in Pennsylvania the opportunity for

all qualified electors to vote by mail, without requiring

the electors to demonstrate their absence from the

voting district on Election Day.” Pa. Democratic Party

v. Boockvar, 238 A.3d 345, 352 (Pa. 2020); see Act of

Oct. 31, 2019, P.L. 552, No. 77. Like all voting

legislation, Act 77 entailed safeguards on these

expanded voting opportunities, and it involved

extensive legislative and executive compromises.

As the Chairman of Pennsylvania’s House State

Government Committee has explained (and a recent

9 Ibid.

10 Grove, supra note 7, at 17–20, 24.

11 Lai & Roebuck, supra note 3.

lawsuit 12 alleges), “part of that compromise” was to

“include[] a clause declaring that its provisions are

nonseverable.” 13 Section 11 of Act 77 provides: “If any

provision of this act or its application to any person or

circumstance is held invalid, the remaining provisions

or applications of this act are void.” 14 Lest there be any

doubt, Section 11 specifically says that Sections 6 and

8—which included the requirement that mail-in

ballots be dated—is “nonseverable.” 15

Under

Pennsylvania

law,

“nonseverability

provisions are constitutionally proper.” Stilp v.

Commonwealth, 905 A.2d 918, 978 (Pa. 2006). They

are a vital expression of legislative intent. They

establish the General Assembly’s determination “that

a taint in any part of the statute ruins the whole.” Ibid.

And they are often used to vindicate “the concerns and

compromises which animate the legislative process” by

“‘bind[ing] the benefits and concessions that constitute

the deal into an interdependent whole.’” Ibid. (quoting

Friedman, Comment, Inseverability Clauses in

Statutes, 64 U. Chi. L. Rev. 903, 914 (1997)). When an

act “involv[es] such compromise,” “a nonseverability

provision . . . may be essential to securing the support

necessary to enact the legislation in the first place.”

Ibid. As the House State Government Committee

Chairman recently explained, “[i]n the absence of a

nonseverability clause, negotiations for compromise on

[a wide-ranging] bill could simply become a prelude to

lawsuits seeking the nullification of provisions which

12 Pet. for Review in the Nature of an Action for a Declaratory J.,

Bonner v. Chapman, No. 364-MD-2022 (Pa. Commw. Ct. July 20,

2022), https://perma.cc/W7NV-RB9U.

13 Grove, supra note 7, at 158.

14 Ibid.

15 Ibid.

had been weighed and bargained for in negotiations.” 16

In short, the nonseverability clause is an essential part

of the statute, and “the plain language of the

statute . . . is the best indicator of legislative intent.”

Commonwealth v. Cobbs, 256 A.3d 1192, 1216 (Pa.

2021) (cleaned up); see 1 Pa. Stat. and Cons. Stat. Ann.

§ 1921(b) (“When the words of a statute are clear and

free from all ambiguity, the letter of it is not to be

disregarded under the pretext of pursuing its spirit.”).

Even if Pennsylvania courts were to look beyond

the text of the nonseverability clause, the need to

vindicate legislative compromises about mail-in voting

is clear. Vote-by-mail options involve a tradeoff; as

ballot-casting convenience expands, regulation must

counterbalance risk. As Judge Posner explained,

“[v]oting fraud is a serious problem in U.S. elections

generally,” “and it is facilitated by absentee voting.”

Griffin v. Roupas, 385 F.3d 1128, 1130–31 (CA7 2004).

After comparing no-excuse absentee voting to takehome exams, Judge Posner warned that absentee

voters “are more prone to cast invalid ballots than

voters who, being present at the polling place, may be

able to get assistance from the election judges if they

have a problem with the ballot.” Id. at 1131.

Indeed, the Commonwealth itself has faced voting

fraud, illegal vote-by-mail activity, and improperly

cast and handled mail ballots:

•

In Marks v. Stinson, 19 F.3d 873 (CA3

1994), two elections officials conspired with

a candidate to cause illegally obtained

absentee ballots to be cast and County

Board of elections rejected four-hundred

16 Id. at 159.

absentee ballots because they were from

unregistered voters).

•

In Opening of Ballot Box of the First Precinct

of Bentleyville, 598 A.2d 1341 (Pa. Commw.

Ct. 1991), four signatures on absentee

ballots did not match those on applications

for the absentee ballots, and six

independent voters were improperly given

partisan ballots.

•

In In re Center Township Democratic Party

Supervisor Primary Election, 4 Pa. D. &

C.4th 555 (C.P. 1989), absentee ballot

applications and absentee ballots were

completed and submitted for fifteen

fictitious persons. The candidate then beat

their opponent by 14 votes. The nomination

was voided, and a run-off election was

ordered.

As these examples illustrate, unsecure vote-bymail processes only increases the chance for fraud,

other illegal electoral activity, and improperly cast

ballots. It makes good sense that a legislative

compromise expanding mail-in voting would insist on

guardrails like the date requirement. Mail-in voting

entails “increased risk[s],” and “in enacting the ‘no

excuse’ mail-in voting system that it did, the

Pennsylvania legislature chose to tolerate the risks

inherent in that approach”—while implementing

many “safeguards” “to catch or deter fraud and other

illegal voting practices.” Donald J. Trump for

President, Inc. v. Boockvar, 493 F. Supp. 3d 331, 395–

96 (WD Pa. 2020). These safeguards, including the

dating requirement, are “inherent in th[e] legislative

plan.” Id. at 395. Because “balancing the competing

interests involved in the regulation of elections is

difficult and an unregulated election system would be

chaos, state legislatures may” “impose extensive

restrictions on voting.” Griffin, 385 F.3d at 1130.

“[T]he striking of the balance between discouraging

fraud and other abuses and encouraging turnout is

quintessentially a legislative judgment with which”

“judges should not interfere.” Id. at 1131; see

Boockvar, 493 F. Supp. 3d at 396 (“Pennsylvania may

balance the many important and often contradictory

interests at play in the democratic process however it

wishes”).

Given that text and purpose point to the same

conclusion—that expanded mail-in voting is

predicated on protections like the date requirement—

Pennsylvania courts will likely apply

the

nonseverability provision of Act 77. And there is no

question that the Third Circuit below held invalid a

provision of Act 77 “or its application.” § 11.

Pennsylvania law requires that mail-in ballots be

dated, see supra p. 3 note 2, and “the Third Circuit

held that this state-law rule is preempted by” the

federal materiality provision. Ritter, 142 S. Ct. at 1826

(Alito, J., dissenting from denial of application for

stay); App. 22 (following Pennsylvania law “will

violate the Materiality Provision”). In other words, the

Third Circuit invalidated this provision, at least as

applied to respondents, just as they asked it to. See

CA3 Appellants’ Reply Brief 28, 2022 WL 1185151

(April 15, 2022) (“disenfranchising voters for failure to

comply with the immaterial envelope-dating

requirement is unlawful”). Because at least this

application of Pennsylvania law was “held invalid,”

Section 11 of Act 77 states that “the remaining

provisions or applications of this act are void.”

Therefore, the decision below may well mean that

the no-excuse mail-in voting process authorized for the

first time by Act 77 is invalid in toto. And that would

mean that for the upcoming elections, voters who rely

on this process are submitting invalid ballots that will

not count. Havoc in Pennsylvania elections is thus

imminent. Voters will not know whether they can mail

in their ballots, and election administrators will not

know whether to plan for a deluge of in-person voting.

Election pandemonium is a real possibility. And these

issues may not be settled until emergency litigation

comes after ballots are being counted, only continuing

the chaos started by the thinly reasoned decision

below. The best course is to vacate that decision,

leaving these serious questions for full adjudication in

a proper case.

II. The

decision

below

threatens

the

constitutionality of the materiality provision.

Another reason to vacate the decision below is that

its interpretation of the materiality provision raises

severe constitutional problems. “[T]he Framers of the

Constitution intended the States to keep for

themselves, as provided in the Tenth Amendment, the

power to regulate elections.” Shelby County v. Holder,

570 U.S. 529, 543 (2013). Though Congress can modify

some state regulations of federal congressional

elections, U.S. Const. art. I, § 4; but see id. art. I, § 2,

cl. 1, it generally lacks power to modify state

regulations of state elections. Thus, the materiality

provision “was passed by Congress under the

authority of the Fifteenth Amendment” to enforce its

protection of “the right to vote regardless of race.”

United States v. Mississippi, 380 U.S. 128, 138 (1965).

Under

this

Court’s

precedents,

“racially

discriminatory motivation is a necessary ingredient of

a Fifteenth Amendment violation.” City of Mobile v.

Bolden, 446 U.S. 55, 62 (1980) (plurality opinion).

Accordingly, lower courts have “held that only

racially motivated deprivations of rights are

actionable under” the materiality provision. Broyles v.

Texas, 618 F. Supp. 2d 661, 697 (SD Tex. 2009) (citing

Kirksey v. City of Jackson, 663 F.2d 659, 664–65 (CA5

1981)), aff’d, 381 F. App’x 370 (CA5 2010). These

courts agree that the materiality provision cannot “be

applied outside the context of racial discrimination.”

Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775,

839 n.106 (SD Ind. 2006), aff’d sub nom. Crawford v.

Marion Cnty. Election Bd., 472 F.3d 949 (CA7 2007),

aff’d, 553 U.S. 181 (2008).

The Third Circuit, however, departed from this

constitutionally grounded approach. Though this case

involves no allegations of intentional race

discrimination—indeed, election officials do not even

know the race of the voter when they apply the date

requirement to mail-in ballots—the court rejected the

argument that the materiality provision “applies only

to instances of racial discrimination.” App. 18 n.56.

According to the court, because “the text of the

provision does not mention racial discrimination,” “we

cannot find that Congress intended to limit this

statute to” “instances of racial discrimination.” Ibid.

Because “the Constitution requires a showing of”

intentional discrimination that the decision below’s

theory of the materiality provision does not, a violation

of the materiality provision on that theory is not “a

fortiori a violation of the Constitution.” Reno v. Bossier

Par. Sch. Bd., 520 U.S. 471, 482 (1997). But the

Fifteenth Amendment only permits Congress to

“enforce” its substantive provisions “by appropriate

legislation.” U.S. Const. amend. XV, § 2. Congress may

enforce the Fifteenth Amendment by creating

“remedies . . . for actual violations.” United States v.

Georgia, 546 U.S. 151, 158 (2006) (emphasis omitted).

Thus, the Fifteenth Amendment cannot provide a

basis for the materiality provision to the extent that

the statute reaches beyond intentional discrimination.

Absent other authority, the materiality provision

would be unconstitutional. See U.S. Const. art. I, § 8;

id. amend. X. “States have broad powers to determine

the conditions under which the right of suffrage may

be exercised,” and “each State has the power to

prescribe . . . the manner in which [its officers] shall be

chosen.” Shelby County, 570 U.S. at 543 (cleaned up).

Alexander Hamilton emphasized the point: “Suppose

an article had been introduced into the Constitution,

empowering the United States to regulate the

elections for the particular States, would any man

have hesitated to condemn it . . . as a premeditated

engine for the destruction of the State governments?”

Federalist No. 59. “State autonomy with respect to the

machinery of self-government defines the States as

sovereign entities rather than mere provincial

outposts subject to every dictate of a central governing

authority.” NAMUDNO v. Holder, 557 U.S. 193, 217

(2009) (Thomas, J., concurring in judgment in part and

dissenting in part).

This Court has held that “[l]egislation which deters

or remedies constitutional violations can fall within

the sweep of Congress’ enforcement power even if in

the process it prohibits conduct which is not itself

unconstitutional.” City of Boerne v. Flores, 521 U.S.

507, 518 (1997). Elsewhere, plaintiffs and the United

States have advanced a trendy theory that this

congruent and proportional test applies only to

Congress’s Fourteenth Amendment enforcement

authority, not its Fifteenth Amendment authority.

Given the textual identity between the two

amendments’ enforcement mechanisms, that theory

lacks any foundation in the Constitution. This Court’s

decisions in Shelby County and NAMUDNO reinforce

the point, for they addressed “the very questions one

would ask to determine whether [a statute] is

congruent and proportional” even though the statute

there was founded on the Fifteenth Amendment.

Shelby County v. Holder, 679 F.3d 848, 859 (CADC

2012) (Tatel, J.) (cleaned up); see id. at 885 (Wiliams,

J., dissenting, but agreeing on this point); accord

Shelby County v. Holder, 811 F. Supp. 2d 424, 449

(DDC 2011) (Bates, J.); NAMUDNO, 557 U.S. at 224–

26 (Thomas, J., concurring in judgment in part and

dissenting in part); Shelby County, 570 U.S. at 542 n.1.

Of course, the congruent and proportional test may

well be suspect, but only because it permits Congress

to go beyond remedying actual constitutional

violations. See Tennessee v. Lane, 541 U.S. 509, 555–

60 (2004) (Scalia, J., dissenting).

Thus, to justify a statute under Congress’s

Fourteenth and Fifteenth Amendment authority, this

Court has required at least “a congruence and

proportionality between the injury to be prevented or

remedied and the means adopted to that end.” Allen v.

Cooper, 140 S. Ct. 994, 1004 (2020) (cleaned up). “On

the one hand, courts are to consider the constitutional

problem Congress faced—both the nature and the

extent of state conduct violating the [Constitution].

That assessment usually . . . focuses on the legislative

record.” Ibid. “On the other hand, courts are to

examine the scope of the response Congress chose to

address that injury.” Ibid. In applying these tests, “a

statute’s current burdens must be justified by current

needs.” Shelby County, 570 U.S. at 550 (cleaned up).

As interpreted by the decision below, the

materiality provision flunks this means-ends test.

Congress has no current record of States adopting

neutral voter registration rules to discriminate based

on race. And the materiality provision (again, as

understood by the Third Circuit) cannot be congruent

and proportional to the Fifteenth Amendment because

the statute lacks any nexus to intentional racial

discrimination.

Start with Congress’s failure to identify any

constitutional problem with voter registration (much

less absentee application) laws themselves. The

legislative history of the materiality provision noted

that “registrars will overlook minor misspelling errors

or mistakes in age or length of residence of white

applicants, while rejecting a Negro application for the

same or more trivial reasons.” H.R. Rep. No. 88-914

(Nov. 20, 1963), reprinted in 1964 U.S.C.C.A.N. 2391,

2491. It says that “the crux of the problem” “c[a]me not

from

discriminatory

laws,”

but

“from

the

discriminatory application and administration of

apparently nondiscriminatory laws.” Ibid. (cleaned

up). “[F]or th[is] reason” Congress passed the

materiality provision. Ibid. Yet this case, like other

recent challenges that invoke the materiality

provision, attacks a neutral rule of state law—not

discriminatory administration by a voting official.

More, as suggested by the legislative example,

Congress was not focused on absentee rules at all.

Absentee voting was rarely used before the 1970s and

did not become prominent until recent years. See Tex.

Democratic Party v. Abbott, 978 F.3d 168, 188 (CA5

2020) (“[T]he right to vote in 1971 did not include a

right to vote by mail. In-person voting was the rule,

absentee voting the exception.”); see also Voting by

mail and absentee voting, MIT Election Data & Science

Lab (Mar. 16, 2021), https://perma.cc/YY6H-9YB8. As

noted, absentee voting “facilitate[s]” “[v]oting fraud.”

Griffin, 385 F.3d at 1130–31. State attempts to combat

this fraud—while expanding opportunities to vote

more broadly—have nothing to do with racial

discrimination. Congress never pointed to any history

of “pervasive,” “flagrant,” “widespread,” and

“rampant” discrimination in absentee voting rules.

Shelby County, 570 U.S. at 554. And certainly

Congress has not pointed to “current conditions” of

such discrimination. Id. at 550.

Next consider the materiality provision’s means.

This Court has looked to limitations like “termination

dates, geographic restrictions, [and] egregious

predicates” “to ensure Congress’ means are

proportionate to ends legitimate.” City of Boerne, 521

U.S. at 533. As interpreted by the Third Circuit, the

materiality provision’s “indiscriminate scope offends

th[ese] principle[s].” Fla. Prepaid Postsecondary Educ.

Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 647

(1999). It has no relation at all to intentional

discrimination. It requires no proof of any

discrimination at all: not discriminatory effects, not

past discrimination, not current discrimination. And it

has no limits in time, space, or scope.

Moreover, as the United States itself argued below,

the statute elsewhere (specifically Section 10101(a)(1))

“already covers the waterfront of direct racial

discrimination in voting.” CA3 Brief for the United

States as Amicus Curiae 23, 2022 WL 1045078 (Apr. 1,

2022). According to the United States, “a ban on racial

discrimination in voting is already explicitly achieved

by another portion of the same statute.” Ibid. (cleaned

up). On this understanding too, the materiality

provision does nothing to combat intentional race

discrimination.

In sum, the materiality provision as applied to

state elections is unconstitutional if the Third Circuit’s

interpretation is correct. “It is an elementary principle

of statutory interpretation that an ambiguous statute

must be interpreted, whenever possible, to avoid

unconstitutionality.” United States v. Davis, 139 S. Ct.

2319, 2350 (2019) (Kavanaugh, J., dissenting). This is

not “a case of avoiding possible unconstitutionality.

This is a case of avoiding actual unconstitutionality.”

Id. at 2351. Thus, “every reasonable construction must

be resorted to in order to save [the materiality

provision] from unconstitutionality.” Hooper v.

California, 155 U.S. 648, 657 (1895). “This Court’s

longstanding practice of saving ambiguous statutes

from unconstitutionality where fairly possible affords

proper respect for the representative branches of our

Government.” Davis, 139 S. Ct. at 2350 (Kavanaugh,

J., dissenting).

As noted, many courts have reasonably interpreted

the materiality provision to stay within Fifteenth

Amendment bounds. See supra p. 14. The Third

Circuit did not, and indeed failed to grasp the

constitutional issue here at all. Not only does this

problem show the error of the Third Circuit’s

interpretation, it shows why this Court should vacate

the decision below.

Leaving the Third Circuit’s unconstitutional

interpretation on the books would perpetuate an

unlawful scheme. This scheme disregards Congress’s

goals and prerogatives. See Davis, 139 S. Ct. at 2350

(Kavanaugh, J., dissenting) (“[A] presumption never

ought to be indulged, that congress meant to exercise

or usurp any unconstitutional authority, unless that

conclusion is forced upon the Court by language

altogether unambiguous.” (cleaned up)). And this

scheme impedes the States in ensuring the integrity of

their own election processes.

CONCLUSION

For these reasons, the Court should vacate the

decision below or grant certiorari.

Respectfully submitted,