Amicus Curiae Brief — Republican National Committee, et al., Petitioners v. Bette Eakin, et al.

No. 25-962

IN THE

Supreme Court of the United States

─────────────♦─────────────

REPUBLICAN NATIONAL COMMITTEE, ET AL.,

Petitioners,

v.

BETTE EAKIN, ET AL.,

Respondents.

─────────────♦─────────────

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT

─────────────♦─────────────

BRIEF OF THE STATE OF MISSOURI

AND TWENTY OTHER STATES

AS AMICI CURIAE IN SUPPORT

OF PETITIONERS

─────────────♦─────────────

CATHERINE L. HANAWAY LOUIS J. CAPOZZI, III

Attorney General

Solicitor General

of Missouri

Counsel of Record

815 Olive Street,

MADELINE SPARKS LANSDELL

Suite 200

Assistant Solicitor General

St. Louis, MO 63101

(573) 645-9662

Louis.Capozzi@ago.mo.gov

Counsel for Amicus State of Missouri

[Additional Counsel Listed on Inside Cover]

March 13, 2026

i

ADDITIONAL COUNSEL

Steve Marshall

Attorney General of

Alabama

Liz Murrill

Attorney General of

Louisiana

Stephen J. Cox

Attorney General of

Alaska

Lynn Fitch

Attorney General of

Mississippi

James Uthmeier

Attorney General of

Florida

Austin Knudsen

Attorney General of

Montana

Chris Carr

Attorney General of

Georgia

Michael T. Hilgers

Attorney General of

Nebraska

Raúl R. Labrador

Attorney General of

Idaho

Drew Wrigley

Attorney General of

North Dakota

Theodore E. Rokita

Attorney General of

Indiana

Dave Yost

Attorney General of

Ohio

Brenna Bird

Attorney General of

Iowa

Gentner Drummond

Attorney General of

Oklahoma

Kris W. Kobach

Attorney General of

Kansas

Alan Wilson

Attorney General of

South Carolina

ii

Marty Jackley

Attorney General of

South Dakota

Ken Paxton

Attorney General of

Texas

Jonathan Skrmetti

Attorney General of

Tennessee

John B. McCuskey

Attorney General of

West Virginia

iii

TABLE OF CONTENTS

TABLE OF AUTHORITIES............................ iv

INTEREST OF AMICUS CURIAE AND

SUMMARY OF THE ARGUMENT ................. 1

ARGUMENT .................................................... 4

I.

The Constitution’s Right to Vote is

Narrow. .................................................. 5

II.

Confusion Reigns Among Federal

Courts Over How to Apply This Court’s

Right-to-Vote Precedents. ..................... 7

III.

The Court Must Reject the Third

Circuit’s Fundamentally Flawed

Approach .............................................. 11

IV.

The Court Should Uphold

Pennsylvania’s Date Requirement...... 13

CONCLUSION ............................................... 17

iv

TABLE OF AUTHORITIES

Pages(s)

Cases

Alexander v. S.C. State Conf. of the NAACP,

602 U.S. 1 (2024) ............................................... 1, 13

Anderson v. Celebrezze,

460 U.S. 780 (1983) ............................................. 5, 6

Ariz. Libertarian Party v. Reagan,

798 F.3d 723 (9th Cir. 2015) ...................................9

Brnovich v. DNC,

594 U.S. 647 (2021) ..................................... 4, 14, 16

Buckley v. Am. Const. L. Found.,

525 U.S. 182 (1999) ............................................... 10

Burdick v. Takushi,

504 U.S. 428 (1992) .................................................5

Carrington v. Rash,

380 U.S. 89 (1965) ...................................................1

Citizens in Charge, Inc. v. Husted,

810 F.3d 437 (6th Cir. 2016) ........................... 10, 12

Clingman v. Beaver,

544 U.S. 581 (2005) ....................................... 5, 6, 17

Crawford v. Marion Cnty. Election Bd.,

553 U.S. 181 (2016) ..................... 3, 4, 6, 7, 8, 14, 16

Daunt v. Benson,

(Daunt I), 956 F.3d 396 (6th Cir. 2020) ............ 8, 10

Daunt v. Benson,

(Daunt II), 999 F.3d 299 (6th Cir. 2021) ............ 2, 9

Democratic Exec. Comm. of Fla. v. Lee,

915 F.3d 1312 (11th Cir. 2019) ...............................2

Dunn v. Blumstein,

405 U.S. 330 (1972) .................................................6

Eakin v. Adams Cnty. Bd. of Elections,

149 F.4th 291 (3rd Cir. 2025) ................. 2, 4, 10, 12

Eakin v. Adams Cnty. Bd. of Elections,

158 F.4th 185 (3d Cir. 2025) ....... 3, 4, 10, 13, 14, 16

v

FCC v. Beach Comms.,

508 U.S. 307 (1993) ......................................... 15, 16

Harper v. Va. State Bd. of Elections,

383 U.S. 663 (1966) ............................................. 3, 6

In re: Canvass of Absentee and Mail-in Ballots of

Nov. 3, 2020 Gen. Election,

241 A.3d 1058 (Pa. 2020) ...................................... 15

Lassiter v. Northampton Cnty. Bd. of Elections,

360 U.S. 45 (1959) ...................................................6

Little v. Reclaim Idaho,

140 S.Ct. 2616 (2020) ............................................ 10

Marcellus v. Va. State Bd. of Elections,

849 F.3d 169 (4th Cir. 2017) ...................................8

Marks v. United States,

430 U.S. 188 (1977) .................................................8

Mazo v. N.J. Sec’y of State,

54 F.4th 124 (3d Cir. 2022) ................... 2, 6, 8, 9, 15

McDonald v. Bd. of Election Comm’rs of Chicago,

394 U.S. 802 (1969) ....................................... 4, 5, 15

Memphis A. Philip Randolph Inst. v. Hargett,

2 F.4th 548 (6th Cir. 2021) .....................................3

Minn. Voters All. v. Mansky,

585 U.S. 1 (2018) ................................................... 11

Nat’l Pork Producers Council v. Ross,

598 U.S. 356 (2023) ............................................... 13

New Ga. Project v. Raffensperger,

976 F.3d 1278 (11th Cir. 2020) ........................... 2, 9

Obama for Am. v. Husted,

697 F.3d 423 (6th Cir. 2012) ...................................9

Peters v. Johns,

489 S.W.3d 262 (Mo. 2016) .....................................8

Ramos v. Louisiana,

590 U.S. 83 (2020) ...................................................7

Reynolds v. Sims,

377 U.S. 533 (1964) ............................................. 5, 6

Ritter v. Migliori,

142 S. Ct. 1824 (2022) ........................................... 14

vi

Rodriguez v. Popular Democratic Party,

457 U.S. 1 (1982) ............................................... 5, 15

Rucho v. Common Cause,

588 U.S. 684 (2019) ..................................... 1, 11, 13

SAM Party of N.Y. v. Kosinski,

987 F.3d 267 (2d Cir. 2021) ................................ 2, 8

Stone v. Bd. of Election Comm’rs for City of Chicago,

750 F.3d 678 (7th Cir. 2014) ...................................8

Storer v. Brown,

415 U.S. 724 (1974) .................................................5

Tex. Democratic Party v. Abbott,

961 F.3d 389 (5th Cir. 2020) ............................. 2, 10

Timmons v. Twin Cities Area New Party,

520 U.S. 351 (1997) .................................................1

Tripp v. Scholz,

872 F.3d 857 (7th Cir. 2017) ...................................9

Tully v. Okeson,

977 F.3d 608 (7th Cir. 2020) ...................................9

Constitutional and Statutory Provisions

25 Pa. Stat. § 3150.11(a) ........................................... 11

25 Pa. Stat. § 3146.6(a) ............................................. 15

25 Pa. Stat. § 3150.16(a) ........................................... 15

Act of Oct. 31, 2019, Pub. L. No. 522-77 ................... 11

Mo. Rev. Stat. § 115.283 ........................................... 15

U.S. Const. amend. XIV ..............................................1

U.S. Const. amend. XV............................................ 1, 5

U.S. Const. art. I, § 4, cl. 1 ................................ 1, 5, 11

U.S. Const. art. II, § 1, cl. 2.........................................1

vii

Other Authorities

Derek T. Muller, The Fundamental Weakness of

Flabby Balancing Tests in Federal Election Law

Litigation, Excess of Democracy

(Apr. 20, 2020) ....................................................... 12

Edward B. Foley, Voting Rules and Constitutional

Law, 81 Geo. Wash. L. Rev. 1836, 1859 (2013) ......3

Note, ‘‘As the Legislature Has Prescribed”: Removing

Presidential Elections from the Anderson-Burdick

Framework, 135 Harv. L. Rev. 1082, 1085, 1099

(2022) ..................................................................... 12

Voting Rules and Constitutional Law,

81 Geo. Wash. L. Rev. 1836 (2013) .........................3

1

INTEREST OF AMICI CURIAE AND SUMMARY

OF THE ARGUMENT 1

The Constitution vests state legislatures with the

primary authority to set the rules for elections. See,

e.g., U.S. Const. art. I, § 4, cl. 1; id. art. II, § 1, cl. 2;

Timmons v. Twin Cities Area New Party, 520 U.S. 351,

358 (1997); Carrington v. Rash, 380 U.S. 89, 91 (1965).

The power to set election rules comes with the

responsibility of making difficult policy choices in a

politically-sensitive area where States must balance

between sometimes-competing considerations—such

as making voting easier and ensuring election

integrity.

Amici States have a strong interest in maintaining

their constitutional prerogatives to set election rules.

That interest is undermined when judges insert their

own policy preferences into elections and displace

rules enacted by the people’s elected representatives.

Of course, courts must enforce constitutional and

statutory commands—such as prohibitions against

racially discriminatory rules.

U.S. Const.

amend. XIV; id. amend. XV. But if judges strike down

state election laws without clear legal authority to do

so, citizens will rightfully fear that the judiciary is

interfering with their elections. See Rucho v. Common

Cause, 588 U.S. 684, 704 (2019) (“With uncertain

limits, intervening courts—even when proceeding

with best intentions—would risk assuming political,

not legal, responsibility for a process that often

produces ill will and distrust.” (cleaned up));

Alexander v. S.C. State Conf. of the NAACP, 602 U.S.

1, 11 (2024) (“[W]e must be wary of plaintiffs who seek

to transform federal courts into weapons of political

1 Pursuant to Rule 37.2, amici provided timely notice of their intent to file this brief to all parties.

2

warfare that will deliver victories that eluded them in

the political arena.” (cleaned up)).

In this case, the Third Circuit utterly discarded all

rules of judicial restraint in the election-law context;

and it badly erred in enjoining Pennsylvania’s

requirement that individuals voting by mail

handwrite a date when filling out ballot declarations.

In that court’s view, the Constitution’s atextual right

to vote gives judges vast discretion to second-guess

every mandatory election rule. According to the panel,

courts must “balance” an election rule’s “burden”

against the policy interests supporting the rule. And

if judges disagree with the State’s policy justifications,

they can brush them aside—like the panel did. See

Eakin v. Adams Cnty. Bd. of Elections, 149 F.4th 291,

317 (3rd Cir. 2025) (“The date requirement seems to

hamper rather than facilitate election efficiency.”

(emphasis added)).

In fairness to the Third Circuit, widespread

confusion persists over how to apply this Court’s

right-to-vote jurisprudence. Federal appellate courts

apply different standards of review. Compare SAM

Party of N.Y. v. Kosinski, 987 F.3d 267, 274 (2d Cir.

2021) (two-tiered standard), with Daunt v. Benson

(Daunt II), 999 F.3d 299, 323 (6th Cir. 2021) (Readler,

J., concurring in the judgment) (discussing the Sixth

Circuit’s three-tiered standard). Some circuits offer

no scrutiny for rules that impose de minimis burdens;

other circuits do not recognize that rule. Compare

New Ga. Project v. Raffensperger, 976 F.3d 1278, 1282

(11th Cir. 2020), with Mazo v. N.J. Sec’y of State, 54

F.4th 124, 138–39 (3d Cir. 2022). Some circuits have

determined that the Constitution recognizes a right to

vote in a particular way (such as by mail), while others

reject that approach. Compare Democratic Exec.

Comm. of Fla. v. Lee, 915 F.3d 1312, 1318–19 (11th

Cir. 2019), with Tex. Democratic Party v. Abbott, 961

3

F.3d 389, 406 (5th Cir. 2020). All those divisions were

reflected in the Third Circuit’s sharply divided 7–6 en

banc vote. See Eakin v. Adams Cnty. Bd. of Elections,

158 F.4th 185, 189–90 (3d Cir. 2025) (Bove, J.,

dissental from denial of rehearing en banc).

Further, judges and commentators have expressed

concern that the federal courts’ confusion over the

constitutional right-to-vote standard ultimately

leaves judges with too much discretion to secondguess legislative policy choices. See, e.g., id. at 196

(“[T]his amorphous test can result in an antidemocratic seizure of power from the People’s

politically accountable representatives.”); Memphis A.

Philip Randolph Inst. v. Hargett, 2 F.4th 548, 561 (6th

Cir. 2021) (Readler, J., concurring) (“AndersonBurdick does little to constrain a court’s

decisionmaking process, and instead leaves federal

judges to weigh standards entirely crafted by the

judges themselves.”); Edward B. Foley, Voting Rules

and Constitutional Law, 81 Geo. Wash. L. Rev. 1836,

1859 (2013) (“Anderson-Burdick balancing is such an

imprecise instrument that it is easy for the balance to

come out one way in the hands of one judge, yet come

out in the exact opposite way in the hands of

another.”).

This Court should grant certiorari and clarify the

standard of review for right-to-vote claims.

In

particular, this Court should confirm that the

atextual constitutional right to vote prohibits only (1)

discriminatory voting rules and (2) those that impose

severe burdens and thus block access to the voting

booth. Harper v. Va. State Bd. of Elections, 383 U.S.

663, 666 (1966); Crawford v. Marion Cnty. Election

Bd., 553 U.S. 181, 208 (2016) (Scalia, J. concurring in

the judgment).

Under that (or any appropriate) standard, the

Third Circuit’s decision is wrong. All agree that

4

Pennsylvania’s

date

requirement

is

not

discriminatory. Eakin, 149 F.4th at 303, 312. And

requiring individuals voting by mail to handwrite a

date obviously does not impose a severe burden on

voters or block access to the voting booth. See id. at

309. Indeed, such a de minimis requirement merely

involves the “usual burdens of voting” and should

merit no judicial scrutiny. Crawford, 553 U.S. at 198

(plurality op.); accord Brnovich v. DNC, 594 U.S. 647,

669 (2021). Further, the date requirement regulates

only mail voting; the fact that Pennsylvanians can

simply avoid the rule by voting in person should also

foreclose finding a constitutional right-to-vote

violation. McDonald v. Bd. of Election Comm’rs of

Chicago, 394 U.S. 802, 807 (1969). Finally, even if the

date requirement is subjected to rational-basis

review, both Pennsylvania and the Republican Party

intervenors easily satisfied that standard in this case.

See Eakin, 158 F.4th at 197 (Bove, J., dissental from

denial of rehearing en banc); id. at 178 (Phipps, J.,

dissenting).

The Third Circuit’s contrary decision misapplies

precedent and deepens substantial splits among the

federal appellate courts over how to apply this Court’s

constitutional right-to-vote standard. If the panel’s

decision stands, litigants around the country will

understand that all mandatory election rules are

vulnerable to invalidation. This Court should close

that Pandora’s box, grant certiorari, and ultimately

reverse.

ARGUMENT

Under any appropriate standard of review, this

should be an easy case. The challenged Pennsylvania

law merely requires voters to write a date in partially

pre-filled boxes. The notion that such a mundane and

simple requirement violates the right to vote defies

common sense.

5

The decision below vividly illustrates the need to

clarify this Court’s right-to-vote jurisprudence. Under

a

principled approach,

Pennsylvania’s date

requirement is obviously constitutional. This Court

should grant review and reverse.

I.

The Constitution’s Right to Vote is Narrow.

When it comes to voting rights, the Constitution’s

text prohibits only discriminatory voting rules.

U.S. Const. amend. XV. Nevertheless, this Court has

inferred the existence of a slightly broader constitutional right to vote. See Reynolds v. Sims, 377 U.S.

533, 568 (1964). This right, however, has clear limits.

See, e.g., Rodriguez v. Popular Democratic Party, 457

U.S. 1, 9 (1982) (“The right to vote, per se, is not a constitutionally protected right.” (cleaned up)). Notably,

this right does not guarantee voters the right to vote

“in any manner” they please. Burdick v. Takushi, 504

U.S. 428, 433 (1992). For example, this Court has held

that the right to vote does not guarantee any right to

vote by mail. McDonald, 394 U.S. at 807.

The narrow scope of the constitutional right to vote

is fundamental to an orderly democratic process. The

Constitution expressly delegates the power to regulate the “Times, Places, and Manner” of federal elections to the States. U.S. Const. art. I, § 4, cl. 1. And

“as a practical matter, 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.” Anderson v. Celebrezze, 460 U.S. 780, 788 (1983) (emphasis added)

(quoting Storer v. Brown, 415 U.S. 724, 730 (1974)).

Given this clear and broad constitutional assignment of power to state legislatures, courts must

avoid treating the constitutional right to vote as an

invitation “to rewrite state electoral codes.” Clingman

6

v. Beaver, 544 U.S. 581, 593 (2005). After all, any “sort

of detailed judicial supervision of the election process

would flout the Constitution’s express commitment of

the task to the States.” Crawford, 553 U.S. at 208

(Scalia, J., concurring in the judgment).

To avoid giving courts a broad license to secondguess state election rules, this Court has carefully defined and limited the constitutional right to vote. The

right to vote is the right to “participate in elections on

an equal basis with other citizens in the jurisdiction.”

Dunn v. Blumstein, 405 U.S. 330, 336 (1972). Accordingly, this right guarantees only two fundamental protections.

First, States may not discriminate against voters.

This anti-discrimination rationale explains this

Court’s adoption of the “one-person-one-vote rule,” see

Reynolds, 377 U.S. at 568, and its invalidation of poll

taxes that “invidiously discriminate” on the basis of

race or wealth, Harper v. Va. State Bd. of Elections,

383 U.S. 663, 666 (1966); accord Lassiter v. Northampton Cnty. Bd. of Elections, 360 U.S. 45, 50 (1959)

(“States have long been held to have broad powers to

determine the conditions under which the right of suffrage may be exercised, absent of course the discrimination which the Constitution condemns.” (cleaned

up)).

Second, States must ensure a fair and meaningful

opportunity for citizens to “participate in elections.”

Dunn, 405 U.S. at 336. To safeguard this opportunity,

this Court has recognized that the right to vote—combined with the First Amendment’s right of association—limits States’ ability to keep candidates off the

ballot. See Anderson, 460 U.S. at 787–88; Mazo, 54

F.4th at 138 (“[A]ssociational rights have also played

a central role in many of the Supreme Court’s other

cases applying the Anderson-Burdick test.”). In the

same vein, this Court recognized that States may not

7

impose objectively severe burdens on voting that prevent citizens from accessing the polling place. See

Crawford, 553 U.S. at 190 (plurality op.); id. at 205

(Scalia, J., concurring in the judgment).

Importantly, this Court has never found that a

non-discriminatory ballot-casting regulation imposes

a severe burden or violates the right to vote—as the

Third Circuit did in this case.

II.

Confusion Reigns Among Federal Courts

Over How to Apply This Court’s Right-toVote Precedents.

Beyond recognition of prohibitions against discrimination and severe burdens on voting, federal

courts are divided on what the right to vote protects.

And this Court’s plurality decision in Crawford

spurred considerable confusion.

Crawford reflects a fundamental disagreement

about whether non-severe burdens on voting even implicate the right to vote. Compare 553 U.S. at 190 n.8

(plurality op.), with id. at 206–08 (Scalia, J., concurring in the judgment). Writing for three Justices, Justice Scalia argued that only severe burdens implicate

the right to vote and that such burdens should be assessed using strict scrutiny. Id. at 206–08 (Scalia, J.,

concurring in the judgment). Writing for three other

Justices, Justice Stevens seemed to envision a sliding

scale of judicial scrutiny for a range of burdens, including some non-severe burdens depending on their

impact. Id. at 190 n.8 (plurality op.); see also id. at

210 (Souter, J., dissenting).

As this Court’s last word on the constitutional

right to vote, Crawford has provided little clarity. To

start, it is not entirely clear whether the plurality approach is binding or not. See Ramos v. Louisiana, 590

U.S. 83, 103 (2020) (plurality op.); id. at 148–49 (Alito,

J., dissenting). “When a fragmented Court decides a

8

case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the

Court may be viewed as that position taken by those

Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S.

188, 193 (1977) (cleaned up). But among the six Justices who voted to affirm in Crawford, there was no

majority rationale; quite the contrary, there was stark

disagreement on what the governing standard should

be. Compare 553 U.S. at 190 n.8 (plurality op.), with

id. at 206–08 (Scalia, J., concurring in the judgment).

Perhaps unsurprisingly, Crawford has generated

confusion among the lower courts. See Daunt v. Benson (Daunt I), 956 F.3d 396, 424 (6th Cir. 2020)

(Readler, J., concurring in the judgment) (“In sensitive policy-oriented cases, [Anderson-Burdick] affords

far too much discretion to judges in resolving the dispute before them.”). Some circuits follow a two-tiered

approach for the level of judicial scrutiny afforded to

different burdens. See, e.g., SAM Party of N.Y., 987

F.3d at 274; Mazo, 54 F.4th at 145; Marcellus v. Va.

State Bd. of Elections, 849 F.3d 169, 175 (4th Cir.

2017); Stone v. Bd. of Election Comm’rs for City of Chicago, 750 F.3d 678, 681 (7th Cir. 2014). Under this

approach, strict scrutiny applies to severe burdens

whereas a lesser level of scrutiny applies to non-severe burdens. In some courts, this “lesser” level of

scrutiny requires courts to “‘weigh’ the burdens imposed on the plaintiff against the precise interests put

forward by the State,” and to take “into consideration

the extent to which those interests make it necessary

to burden the plaintiff’s rights.” SAM Party of N.Y.,

987 F.3d at 274 (cleaned up). Other courts apply rational basis review. See, e.g., Peters v. Johns, 489

S.W.3d 262, 273–74 (Mo. 2016) (interpreting federal

law and applying Anderson-Burdick).

9

By contrast, the Sixth Circuit applies a threetiered test. Daunt II, 999 F.3d at 323 (Readler, J., concurring) (“[W]e deem ‘most’ Anderson-Burdick cases

to ‘fall in between’ the extremes of laws that impose

severe burdens and no burdens at all, thereby subjecting a wide swath of state laws to the supposed ‘hard

judgment[s]’ that the whims of Anderson-Burdick’s

‘flexible standard’ ‘demand[].’” (alterations in original)

(quoting Obama for Am. v. Husted, 697 F.3d 423, 429

(6th Cir. 2012))). This approach applies strict scrutiny

to severe burdens, a form of rational-basis scrutiny to

“reasonable, nondiscriminatory regulations,” and the

flexible Anderson-Burdick burden and interest analysis to regulations that fall between the extremes. Id.

at 310–11.

Another point of disagreement amongst the circuit

courts is whether de minimis burdens implicate the

right to vote. Some circuits exclude de minimis burdens from Anderson-Burdick review, finding that

these burdens do not implicate the constitutional

right to vote. Mazo, 54 F.4th at 138–39; Ariz. Libertarian Party v. Reagan, 798 F.3d 723, 730–31 (9th Cir.

2015). Other circuits subject even the most ordinary

election regulations to scrutiny under Anderson-Burdick. See, e.g., New Ga. Project, 976 F.3d at 1282;

Tripp v. Scholz, 872 F.3d 857, 864 (7th Cir. 2017).

A final point of confusion for federal appellate

courts is whether and how the constitutional right to

vote applies to rules limiting only mail voting. The

Fifth, Sixth, and Seventh Circuits follow this Court’s

precedent in McDonald and apply rational-basis scrutiny “to election laws that do not impact the right to

vote—that is, the right to cast a ballot in person.”

Tully v. Okeson, 977 F.3d 608, 616 n.6 (7th Cir. 2020)

(“So, in cases like McDonald, where only the claimed

right to vote by mail is at issue, the Anderson/Burdick

10

test, by its own terms, cannot apply.”); see Tex. Democratic Party, 961 F.3d at 406 (“Because the plaintiffs’

fundamental right is not at issue, McDonald directs

us to review only for a rational basis . . . .”). The Third

Circuit joined the Second, Eight, Ninth, and Eleventh

Circuits in extending Anderson-Burdick review to

rules that affect only mail voting. See Eakin, 149 F.4th

at 308 n.23 (collecting cases).

As a result of this confusion, federal appellate

courts struggle to find consistency in adjudicating

right-to-vote cases. And judges have voiced concerns

when defining burdens and attempting to weigh those

burdens. See Citizens in Charge, Inc. v. Husted, 810

F.3d 437, 443 (6th Cir. 2016) (Sutton, J.) (“The distinction between ‘severe burdens’ and ‘lesser’ ones is often

murky.” (quoting Buckley v. Am. Const. L. Found., 525

U.S. 182, 207 (1999) (Thomas, J., concurring in the

judgment)); Daunt I, 956 F.3d at 425 (Readler, J., concurring) (“In the name of ‘flexibility,’ Anderson-Burdick risks trading precise rules and predictable outcomes for the imprecision and unpredictability of how

the judicial-assignment wheel turns.”); Eakin, 158

F.4th at 191–92 (Bove, J., dissental from denial of rehearing en banc) (“These expansions of Anderson-Burdick have the potential to cause election chaos in

Pennsylvania and beyond.”).

This Court should grant review and adopt a more

workable standard for constitutional right-to-vote

cases. After all, “the States depend on clear and administrable guidelines from courts.” Little v. Reclaim

Idaho, 140 S.Ct. 2616, 2616 (2020) (Roberts, C.J., concurring in the grant of stay). And the need for clear

rules is especially important in politically fraught

election-law cases.

11

III. The Court Must Reject the Third Circuit’s

Fundamentally Flawed Approach.

In adopting a legal standard that subjects all mandatory voting rules to searching judicial scrutiny, the

Third Circuit profoundly erred.

To start, the panel’s approach undermines federalism and the separation of powers by transferring authority over election rules from States to federal

courts. Once again, the Constitution assigns the responsibility for establishing voting regulations to the

States in the first instance. U.S. Const. art. I, § 4,

cl. 1. And for good reason. Setting election laws involves sensitive political disputes, and such political

matters are quintessentially legislative questions, not

judicial ones. Cf. Rucho, 588 U.S. at 707.

As a historical matter, States have accomplished

much to celebrate in exercising their constitutional

prerogatives to set voting rules. In the early days of

the Republic, polling places could be boisterous, even

“chaotic,” “akin to entering an open auction.” Minn.

Voters All. v. Mansky, 585 U.S. 1, 7 (2018) (citations

omitted). Voters also generally voted on ballots

printed by parties instead of the government. Id. at

6. About a century ago, however, States began “implementing reforms to address these vulnerabilities

and improve the reliability of elections.” Id. at 7.

These reforms are now fundamental—voting in private using state rather than party-printed ballots. Id.

And these innovations continue today. One irony

of this case is that the Third Circuit’s decision punishes Pennsylvania for engaging in such innovation.

Six years ago, Pennsylvania’s General Assembly enacted universal mail-in voting for the first time in the

State’s history. See Act of Oct. 31, 2019, Pub. L. No.

522-77; 25 Pa. Stat. § 3150.11(a). As part of the legis-

12

lative compromise that created mail voting, the General Assembly insisted on certain election-integrity

measures, including a requirement that voters date

their mail-ballot declarations. Yet the panel—with no

clear legal authorization—set aside that legislative

compromise. Eakin, 149 F.4th at 318. Should the

Third Circuit’s ruling persist, States will hesitate to

further innovate in setting election-law rules.

Further, the Third Circuit embraced a rule that is

unworkable and threatens the integrity of the judiciary. As both courts and commentators have recognized, the Anderson-Burdick test is indeterminate

and malleable. See, e.g., Citizens in Charge, 810 F.3d

at 443 (Sutton, J.) (“The distinction between ‘severe

burdens’ and ‘lesser’ ones is often murky.” (cleaned

up)); Derek T. Muller, The Fundamental Weakness of

Flabby Balancing Tests in Federal Election Law Litigation, Excess of Democracy (Apr. 20, 2020) (characterizing Anderson-Burdick as an “ad hoc totality-ofthe-circumstances” test); 2 Note, ‘‘As the Legislature

Has Prescribed”: Removing Presidential Elections

from the Anderson-Burdick Framework, 135 Harv. L.

Rev. 1082, 1085, 1099 (2022) (describing AndersonBurdick as a “frustratingly vague” “judicial morass”).

The panel’s approach pours gasoline on all of the

risks associated with the current test. Under the

panel’s approach, a court could find even the most innocuous voting requirement to be a constitutional violation. Courts will possess broad discretion in characterizing how “burdensome” a rule is. Eakin, 149

F.4th at 305–06. And Courts will have expansive authority to evaluate the merits of the policy arguments

for and against a challenged rule. See, e.g., id. at 314–

17. Courts must then weight these incommensurate

2 https://perma.cc/CSN6-9HJN

13

factors—somehow balancing burdens against policy

benefits. Cf. Nat’l Pork Producers Council v. Ross, 598

U.S. 356, 393 (2023) (Barrett, J., concurring in part).

But weighing such things is the equivalent of weighing the value of making more money versus spending

more time with one’s family; the weighing inherently

calls for a value judgment that courts—as non-political actors—are ill-equipped to make. See Eakin, 158

F.4th at 190 (Bove, J., dissental from denial of rehearing en banc) (“Compared to courts, legislatures are in

a better position to make policy and bring to bear the

collective wisdom of the whole people when they do,

and they enjoy far greater resources for research and

factfinding.” (cleaned up)).

In short, under the Third Circuit’s rule, courts will

be required to wade into policy and will have vast discretion to strike down any mandatory election rules

they do not like. This, in turn, gives partisans who

failed to obtain their preferred election laws through

the legislative process every incentive to turn around

and try their luck in the courts instead. See Alexander, 602 U.S. at 11. Such a consequence would regularly enmesh courts in inherently political fights—

with only an open-ended and amorphous balancing

test to guide them. See Rucho, 588 U.S. at 704 (“With

uncertain limits, intervening courts—even when proceeding with best intentions—would risk assuming

political, not legal, responsibility for a process that often produces ill will and distrust.” (cleaned up)).

IV.

The Court Should Uphold Pennsylvania’s

Date Requirement.

This Court should implement the constitutional

right to vote in a way that lessens the risk of judicial

overreach. Three rationales—all of which have a firm

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basis in this Court’s jurisprudence—should easily resolve this case. Under any of those approaches, the

Court should reverse.

First, the date requirement is a “usual burden[] of

voting” that merits no judicial scrutiny. Crawford,

553 U.S. at 198 (plurality op.). This Court has recognized that certain election requirements exist that are

even more miniscule than minor burdens. In Crawford, this Court explained that some burdens imposed

by election regulations are simply “neither so serious

nor so frequent as to raise any question about the[ir]

constitutionality.” Crawford, 533 U.S. at 197 (plurality op.). This Court also observed that the “usual burdens of voting” are even less burdensome than minimally burdensome rules. Id. at 198 (plurality op.).

This Court embraced a similar de minimis rule in

Brnovich, determining that “mere inconvenience” is

insufficient to “demonstrate a violation” of the right to

vote. 594 U.S. at 669 (“[B]ecause voting necessarily

requires some effort and compliance with some rules,

the concept of a voting system that is ‘equally open’

and that furnishes equal ‘opportunity’ to cast a ballot

must tolerate the ‘usual burdens of voting.’” (cleaned

up)). And, writing for three Justices, Justice Alito emphasized that failure to comply with certain rules does

not constitute a violation of the right to vote. Ritter v.

Migliori, 142 S. Ct. 1824, 1825 (2022) (Alito, J., dissental).

Writing a date on a ballot declaration should be

deemed a de minimis burden meriting no constitutional scrutiny. Dating a ballot is simple and “[f]or a

voter with a functioning pen, sufficient ink, and average hand dexterity, this should take less than five seconds.” Eakin, 158 F.4th at 190 (Bove, J., dissental

from denial of rehearing en banc). And requiring voters to write information on voting papers for in-person

voting and mail-in voting is a common practice in

15

every State. See, e.g., 25 Pa. Stat. §§ 3146.6(a),

3150.16(a) (signature requirement); Mo. Rev. Stat.

§ 115.283 (absentee form requirements). To subject

this common-place, simple requirement to judicial

scrutiny defies reason.

Second, under this Court’s precedent set-forth in

McDonald, the Constitution does not guarantee a

right to vote by mail. 394 U.S. at 807–811. Pennsylvania satisfied its constitutional obligation by making

in-person voting available to all. See id. at 807–11.

Pennsylvania’s permissive mail-in regime is a privilege that voters may utilize. However, if voters find

the requirements of the mail-in voting system too burdensome, they may exercise their right to vote in-person. See id. After all, “the right to vote, per se, is not

a constitutionally protected right.” Rodriguez, 457

U.S. at 9. Consequently, the dating requirement

should not be subject to judicial scrutiny.

Third, even applying rational basis review, Pennsylvania’s date requirement easily passes muster.

The rational-basis test is one of the most “deferential”

standards in American law. Mazo, 54 F.4th at 153–

54. Indeed, when rational-basis scrutiny applies, a

legislature’s judgment “is not subject to courtroom

fact-finding and may be based on rational speculation

unsupported by evidence or empirical data.” FCC v.

Beach Comms., 508 U.S. 307, 315 (1993).

Here, Pennsylvania and the Republican Party intervenors provided more than enough to uphold the

date requirement under the rational-basis test. To

start, the date requirement “provides proof of when

the elector actually executed a ballot in full.” In re:

Canvass of Absentee and Mail-in Ballots of Nov. 3,

2020 Gen. Election, 241 A.3d 1058, 1090 (Pa. 2020)

(Dougherty, J., concurring and dissenting) (cleaned

up). By serving as an important backstop, and aiding

16

the “orderly administration” of elections, that information undoubtedly furthers legitimate state interests. Crawford, 553 U.S. at 196 (plurality op.).

Additionally, the date requirement furthers Pennsylvania’s interest in “deterring and detecting voter

fraud” and “protecting the integrity and reliability of

the electoral process.” Id. at 191 (plurality op.).

States are not required to endure fraud before acting

to prevent and combat it. Brnovich, 594 U.S. at 686.

The date requirement is an anti-fraud measure. And,

though not required to establish the legitimacy of the

burden, the State presented evidence that the date requirement has previously helped Pennsylvania deter

and detect fraud. Intervenor-Appellants’ Br., Eakin,

No. 25-1644 (3d Cir. 2024), at 56–57.

The Third Circuit agreed that the date requirement “imposes only a minimal burden” and that rational-basis review applies. Eakin, 158 F.4th at 313.

Nevertheless, it concluded that the State’s interests,

though each “legitimate (and even strong),” could not

“support the date requirement.” Id. at 314. This is an

extreme overreach of judicial discretion. Rational-basis scrutiny is highly deferential to States. Where

such scrutiny applies, the State need not adduce any

evidence to demonstrate the interests advanced by the

challenged law. Rather, federal courts must accept

“rational speculation unsupported by evidence or empirical data.” Beach Comms., 508 U.S. at 315. The

Third Circuit abused its discretion in treating rational-basis review as “a license for courts to judge the

wisdom, fairness, or logic of legislative choices.” Id. at

313. Reaffirming that point would help prevent

abuses of the constitutional right-to-vote standard.

17

CONCLUSION

The Third Circuit’s decision defies logic and sows

more chaos into an area of law that urgently needs

clarification. If allowed to stand, the Third Circuit’s

approach will “hamper the ability of States to run efficient and equitable elections” and “compel federal

courts to rewrite state electoral codes.” Clingman,

544 U.S. at 593. This Court should grant review, reject the Third Circuit’s unfounded approach, and reverse.

Respectfully submitted,

CATHERINE L. HANAWAY

Missouri Attorney General

LOUIS J. CAPOZZI, III

Solicitor General

Counsel of Record

MADELINE SPARKS LANSDELL

Assistant Solicitor General

OFFICE OF THE MISSOURI

ATTORNEY GENERAL

Old Post Office Building

815 Olive Street, Suite 200

St. Louis, MO 63101

(573) 645-9662

Louis.Capozzi@ago.mo.gov

March 13, 2026