Petition for Writ of Certiorari — Pennsylvania, Petitioner v. Bette Eakin, et al.

Supreme Court briefFeb 11, 2026

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No. __________

In the Supreme Court of the United States

COMMONWEALTH OF PENNSYLVANIA,

Petitioner

BETTE EAKIN, ET AL.,

Respondents

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

DAVID W. SUNDAY, JR.

Attorney General

Commonwealth of Pennsylvania

DANIEL B. MULLEN

Chief Deputy Attorney General

Chief, Appellate Litigation Section

Counsel of Record

BRETT T. GRAHAM

Deputy Attorney General

Office of Attorney General

1251 Waterfront Place

Mezzanine Level

Pittsburgh, PA 15222

(412) 235-9067

COUNSEL FOR PETITIONER

QUESTION PRESENTED

Among other simple steps Pennsylvania voters take

when casting mail-in ballots, they must sign and date

a pre-printed declaration on a return envelope. 25 Pa.

Stat. §§3146.6(a), 3150.16(a). “[F]or a voter with a functioning pen, sufficient ink, and average hand dexterity,” complying with this instruction “should take less

than five seconds.” App.94a. (Bove, J., dissenting from

the denial of en banc). Yet the Court of Appeals held

that this de minimis, generally applicable requirement

somehow violates the First and Fourteenth Amendments, purporting to apply this Court’s Anderson-Burdick balancing test in reaching that conclusion. Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992). App.38a.

Over two forceful dissents, the Third Circuit narrowly denied rehearing en banc. App.90a. Both dissents noted that the Pennsylvania Supreme Court’s intervening ruling in Center for Coalfield Justice v.

Washington County Board of Elections, 343 A.3d 1178

(Pa. Sep. 26, 2025), fatally undercut the panel’s central

rationale. App.91a–92a (Phipps, J., dissenting from the

denial of en banc); App.101a–102a (Bove, J., dissenting

from the denial of en banc). And one dissent highlighted that the panel opinion raised “significant federalism concerns,” misread binding precedent, and “deepened a Circuit split” over elevating scrutiny under Anderson-Burdick. App. 95a (Bove, J., dissenting from the

denial of en banc). The question presented is:

Does Pennsylvania’s requirement that mail-in voters provide a handwritten date when signing a preprinted declaration on a ballot return envelope violate

the First or Fourteenth Amendment to the United

States Constitution?

PARTIES TO THE PROCEEDING

Petitioner the Commonwealth of Pennsylvania, represented by and through its chief law officer, Attorney

General David W. Sunday, Jr., was an intervenor-appellant in the Court of Appeals.

Respondents Bette Eakin, the Democratic Senatorial Campaign Committee, the Democratic Congressional Campaign Committee, and AFT Pennsylvania

were plaintiffs in the District Court and appellees in

the Court of Appeals.

Respondents the Republican National Committee,

the National Republican Congressional Committee,

and the Republican Party of Pennsylvania were intervenor-defendants in the District Court and appellants

in the Court of Appeals.

Respondents Adams County Board of Elections, Allegheny County Board of Elections, Beaver County

Board of Elections, Bedford County Board of Elections,

Berks County Board of Elections, Blair County Board

of Elections, Bradford County Board of Elections,

Bucks County Board of Elections, Butler County Board

of Elections, Cambria County Board of Elections, Cameron County Board of Elections, Carbon County Board

of Elections, Centre County Board of Elections, Chester

County Board of Elections, Clarion County Board of

Elections, Clearfield County Board of Elections, Clinton County Board of Elections, Columbia County Board

of Elections, Crawford County Board of Elections,

Cumberland County Board of Elections, Fulton County

Board of Elections, Huntingdon County Board of Elections, Indiana County Board of Elections, Dauphin

County Board of Elections, Delaware County Board of

Elections, Elk County Board of Elections, Fayette

County Board of Elections, Forest County Board of

Elections, Franklin County Board of Elections, Jefferson County Board of Elections, Juniata County Board

iii

of Elections, Lackawanna County Board of Elections,

Lancaster County Board of Elections, Lawrence

County Board of Elections, Lebanon County Board of

Elections, Lehigh County Board of Elections, Luzerne

County Board of Elections, Lycoming County Board of

Elections, McKean County Board of Elections, Mercer

County Board of Elections, Mifflin County Board of

Elections, Monroe County Board of Elections, Montgomery County Board of Elections, Montour County

Board of Elections, Northampton County Board of

Elections, Northumberland County Board of Elections,

Perry County Board of Elections, Pike County Board of

Elections, Potter County Board of Elections, Snyder

County Board of Elections, Somerset County Board of

Elections, Sullivan County Board of Elections, Tioga

County Board of Elections, Union County Board of

Elections, Venango County Board of Elections, Warren

County Board of Elections, Wayne County Board of

Elections, Westmoreland County Board of Elections,

Wyoming County Board of Elections, Erie County

Board of Elections, Greene County Board of Elections,

Philadelphia County Board of Elections, Schuylkill

County Board of Elections, Susquehanna County

Board of Elections, York County Board of Elections,

Armstrong County Board of Elections, and Washington

County Board of Elections were defendants in the District Court and appellees in the Court of Appeals.

RELATED PROCEEDINGS

United States District Court for the Western District of

Pennsylvania:

Bette Eakin, et al. v. Adams County Board of

Elections, et al., No. 1:22-CV-00340 (judgment

entered on April 1, 2025).

United States Court of Appeals for the Third Circuit:

Bette Eakin, et al. v. Adams County Board of

Elections, et al., No. 25-1644 (judgment entered

on August 26, 2025).

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................... i

PARTIES TO THE PROCEEDING ............................. ii

RELATED PROCEEDINGS ....................................... iv

TABLE OF CONTENTS ...............................................v

TABLE OF AUTHORITIES ..................................... viii

INTRODUCTION .........................................................1

OPINIONS BELOW ......................................................3

STATEMENT OF JURISDICTION .............................3

CONSTITUTIONAL PROVISIONS INVOLVED ........3

STATEMENT OF THE CASE ......................................4

REASONS FOR GRANTING THE PETITION .........11

I. THIS COURT SHOULD VACATE THE JUDGMENT AND

REMAND FOR FURTHER PROCEEDINGS IN LIGHT OF

COALFIELD JUSTICE. ...............................................11

A. The Third Circuit Misconstrued State Law ....13

B. The Third Circuit’s State Law Error Was

Pivotal to its Anderson-Burdick Analysis .......14

II. ALTERNATIVELY, THIS COURT SHOULD GRANT

PLENARY REVIEW TO CLARIFY THE SCOPE OF ITS

ANDERSON-BURDICK FRAMEWORK ..........................16

A. The Circuits Are Split 7–4 Over What

Scrutiny Applies to Minimally Burdensome

Election Laws ...................................................17

B. The Third Circuit’s Lax Approach to Defining

the Burden at Issue Demonstrates

Fundamental

Confusion

Underlying

Anderson-Burdick.............................................23

III.THE QUESTION PRESENTED IS IMPORTANT ..............25

IV. THE THIRD CIRCUIT’S RULING IS WRONG ................28

CONCLUSION ............................................................32

vii

APPENDIX

Appendix A. Court of Appeals panel opinion

(August 26, 2025) ....................................................1a

Appendix B. District Court opinion

(March 31, 2025) ...................................................52a

Appendix C. District Court order

(March 31, 2025) ...................................................78a

Appendix D. District Court judgment

(April 1, 2025)........................................................81a

Appendix E. Court of Appeals order denying

en banc review (October 14, 2025) ........................87a

Appendix F. Dissent from the denial of

en banc review (October 14, 2025) ........................91a

Appendix G. Dissent from the denial of

en banc review (October 24, 2025)* ….................. 94a

Appendix H. Constitutional and statutory

provisions.............................................................116a

U.S. Const. Amend I .........................................116a

U.S. Const. Amend XIV ....................................116a

25 Pa. Cons. Stat. §3146.6(a) .............................118a

25 Pa. Cons. Stat. §3150.16(a) ...........................118a

* The Third Circuit issued an amended order on this date to

include Judge Bove’s dissent from the denial of en banc review.

See App.90a n.1.

For ease of reference, this Petition hereinafter cites the dissents from the denial of en banc review as (Phipps, J., dissenting)

and (Bove, J., dissenting).

viii

TABLE OF AUTHORITIES

Cases

Abramski v. United States, 573 U.S. 169 (2014) ..........5

Acevedo v. Cook Cnty. Officers Electoral Bd., 925

F.3d 944 (7th Cir. 2019) ...........................................15

Allstate Ins. Co. v. Menards, Inc., 285 F.3d 630

(7th Cir. 2002) ..........................................................11

Anderson v. Celebrezze, 460 U.S. 780 (1983)...1, 18, 23,

Arizona Democratic Party v. Hobbs, 18 F.4th 1179

(9th Cir. 2021) ..........................................................29

Arizona v. Gant, 540 U.S. 963 (2003) (per curiam) ....12

Barr v. Galvin, 626 F.3d 99 (1st Cir. 2010)................21

Baxter v. Philadelphia Bd. of Elections, 332 A.3d

1183 (Pa. 2025) (per curiam) .....................................5

Buckley v. American Const. L. Found., Inc., 525

U.S. 182 (1999) .........................................................16

Burdick v. Takushi, 504 U.S. 428 (1992) .. 1, 18, 25, 27,

30, 32

Center for Coalfield Justice v. Washington Cnty.

Bd. of Elections, 343 A.3d 1178 (Pa. 2025)1, 9, 14, 15

Clingman v. Beaver, 544 U.S. 587 (2005) ..................18

Commonwealth v. Mihaliak, No. MJ–2202–

CR126–22 (Pa. Mag. Dist. Ct. 2022) .........................8

Cowen v. Secretary of State of Georgia, 22 F.4th

1227 (11th Cir. 2022) ...............................................19

Crawford v. Marion Cnty. Election Bd., 553 U.S.

181 (2008) ..................................... 2, 15, 16, 22, 29, 30

Daunt v. Benson, 999 F.3d 299 (6th Cir. 2021) ...10, 17,

DCCC v. Ziriax, 487 F.Supp.3d 1207 (N.D. Okla.

2020) .........................................................................16

FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) ...31

Fish v. Schwab, 957 F.3d 1105 (10th Cir. 2020) ........22

Gill v. Scholz, 962 F.3d 360 (7th Cir. 2020) ...............16

Grimes v. Smith, 776 F.2d 1359 (7th Cir. 1985) ........28

Heller v. Doe, 509 U.S. 312 (1993) ..............................31

Huddleston v. Dwyer, 322 U.S. 232 (1944) (per

curiam) .....................................................................12

Lawrence on Behalf of Lawrence v. Chater, 516

U.S. 163 (1996) (per curiam) ...................................15

League of United Latin Am. Citizens of Iowa v.

Pate, 950 N.W.2d 204 (Iowa 2020) ..........................16

Lerman v. Board of Elections in City of New York,

232 F.3d 135 (2d Cir. 2000) .....................................24

Lichtenstein v. Hargett, 83 F.4th 575 (6th Cir.

2023) .........................................................................10

Lords Landing Vill. Condo. Council of Unit

Owners v. Continental Ins. Co., 520 U.S. 893

(1997) (per curiam) ........................................ 2, 11, 12

Louisiana Power & Light Co. v. City of Thibodaux,

360 U.S. 25 (1959) ....................................................11

Luft v. Evers, 963 F.3d 665 (7th Cir. 2020) .... 21, 25, 30

Marcellus v. Virginia State Bd. of Elections, 849

F.3d 169 (4th Cir. 2017) ...........................................19

McDonald v. Board of Election Comm'rs of

Chicago, 394 U.S. 802 (1969)...................................10

McLinko v. Pennsylvania Dep’t of State, 278 A.3d

539 (Pa. 2022).......................................................4, 30

Migliori v. Cohen, 36 F.4th 153 (3d Cir. 2022) ............5

Mullaney v. Wilbur, 421 U.S. 684 (1975) ...................11

New Georgia Project v. Raffensperger, 976 F.3d

1278 (11th Cir. 2020) .........................................16, 29

Nolan v. Transocean Air Lines, 365 U.S. 293 (1961)

(per curiam) ..............................................................12

Northeast Ohio Coal. for Homeless v. Husted, 696

F.3d 580 (6th Cir. 2012) (per curiam) .....................26

Northeast Ohio Coal. for Homeless v. Husted, 837

F.3d 612 (6th Cir. 2016) ...........................................26

Northeast Ohio Coal. for Homeless v. Husted, No.

06–CV–896, 2016 WL 3166251 (S.D. Ohio June

7, 2016) .....................................................................26

Northeast Ohio Coal. for the Homeless v. LaRose,

767 F.Supp.3d 585 (N.D. Ohio 2024) ......................16

Obama for Am. v. Husted, 697 F.3d 423 (6th Cir.

2012) .........................................................................21

Ohio Democratic Party v. Husted, 834 F.3d 620

(6th Cir. 2016) ....................................................24, 26

Ohio Org. Collaborative v. Husted, 189 F.Supp.3d

708 (S.D. Ohio 2016) ................................................26

Pennsylvania Democratic Party v. Boockvar, 238

A.3d 345 (Pa. 2020) ..................................................13

Pennsylvania State Conference of NAACP

Branches v. Secretary Commonwealth of Pa., 97

F.4th 120 (3d Cir. 2024) .......................................5, 10

Pennsylvania State Conference of NAACP

Branches v. Secretary Commonwealth of Pa., No.

24–363, 145 S. Ct. 1125 (Jan. 21, 2025) ....................5

Price v. New York State Bd. of Elections, 540 F.3d

101 (2d Cir. 2008).....................................................20

Richardson v. Texas Sec’y of State, 978 F.3d 220

(5th Cir. 2020) ....................................................18, 31

Ritter v. Migliori, 143 S. Ct. 297 (2022) .......................5

Rodriguez v. Popular Democratic Party, 457 U.S. 1

(1982) ........................................................................25

SD Voice v. Noem, 60 F.4th 1071 (8th Cir. 2023) ......22

Service Emps. Int’l Union, Local 1 v. Husted, 887

F.Supp.2d 761 (S.D. Ohio 2012) ..............................26

Storer v. Brown, 415 U.S. 724 (1974) .........................28

Tennessee Conference of NAACP v. Lee, 139 F.4th

557 (6th Cir. 2025) ...................................................26

Texas League of United Latin Am. Citizens v.

Hughs, 978 F.3d 136 (5th Cir. 2020) .......................18

Thomas v. American Home Prod., Inc., 519 U.S.

913 (1996) ...........................................................11, 13

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

351 (1997) .................................................................17

Trump v. Mazars USA, LLP, 591 U.S. 848 (2020).....28

Valley Forge Christian Coll. v. Americans United

for Separation of Church & State, Inc., 454 U.S.

464 (1982) ................................................................31

Warth v. Seldin, 422 U.S. 490 (1975) .........................30

Washington State Grange v. Washington State

Republican Party, 552 U.S. 442 (2008) ...................26

Weber v. Shelley, 347 F.3d 1101 (9th Cir. 2003) ........27

Williams v. Rhodes, 393 U.S. 23 (1968) .....................26

Youngblood v. West Virginia, 547 U.S. 867 (2006)

(per curiam) ........................................................12, 27

Statutes

25 Pa. Stat. §1402(c) ...................................................14

25 Pa. Stat. §3146.1 ......................................................4

25 Pa. Stat. §3146.6(a) ..................................................1

25 Pa. Stat. §3150.1 ......................................................8

25 Pa. Stat. §3150.11 ....................................................4

25 Pa. Stat. §3150.16(a) ................................................1

28 U. S. C. §1254(1).......................................................3

52 U.S.C. §10101(a)(2)(B) .............................................5

Act of October 31, 2019, P.L. 552, No. 77 § 11 .............4

Other Authorities

Bruce E. Cain & Aaron Spikol, Balancing Small-D

Democratic Values, 2024 U. ILL. L. REV. 1699

(2024) ........................................................................17

Derek T. Muller, The Fundamental Weakness of

Flabby Balancing Tests in Federal Election Law

Litigation, EXCESS OF DEMOCRACY BLOG (Apr. 20,

2020), https://perma.cc/4EM2-QPJ5 .......................17

xii

Edward B. Foley, Due Process, Fair Play, and

Excessive Partisanship, 84 U. CHI. L. REV. 655

(2017) ........................................................................26

Edward B. Foley, Voting Rules and Constitutional

Law, 81 GEO. WASH. L. REV. 1836 (2013) ................17

Guido Calabresi, Federal and State Courts:

Restoring a Workable Balance, 78 N.Y.U. L. REV.

1293 (2003) ...............................................................11

James M. Fischer, What Are “The Usual Burdens

of Voting”?, 40 GA. ST. U. L. REV. 573 (2024). .........25

James Madison, Note to Speech on the Right of

Suffrage, in 3 THE RECORDS OF THE FEDERAL

CONVENTION OF 1787 (Max Farrand ed., rev ed.

1966) .........................................................................28

Joshua A. Douglas, Is the Right to Vote Really

Fundamental?, 18 CORNELL J. L. & PUB. POL’Y

143 (2008) .................................................................25

Joshua A. Douglas, Undue Deference to States in

the 2020 Election Litigation, 30 WM. & MARY

BILL RTS. J. 59 (2021) ...............................................26

Richard W. Trotter, Vote of Confidence, N.Y.U. J.

LEGIS. & PUB. POL’Y 515 (2013) ...............................25

INTRODUCTION

Pennsylvania’s Election Code requires a voter submitting a mail-in ballot to handwrite the date in designated fields next to their signature when filling out the

pre-printed declaration on a ballot return envelope. See

25 Pa. Stat. §§3146.6(a); 3150.16(a). The voter presumably has a writing implement handy, having just

signed their name—a statutory mandate not in dispute

here. All the voter must then do is move the pen a few

inches and write, at most, six digits. The Court of Appeals concluded that requiring voters to complete this

simple task violates the First and Fourteenth Amendments.

To reach this counterintuitive result, the Court of

Appeals disfigured this Court’s Anderson-Burdick

framework.1 Its intemperate application of that paradigm has “the potential to cause election chaos in Pennsylvania and beyond.” App.98a (Bove, J., dissenting).

To avert this chaos, this Court should grant certiorari, vacate the opinion below, and remand (GVR) for

reconsideration in light of Center for Coalfield Justice

v. Washington County Board of Elections, 343 A.3d

1178 (Pa. 2025) (“Coalfield Justice”), issued just weeks

after the Court of Appeals’ opinion. There, the Pennsylvania Supreme Court clarified that mail-in voters are

entitled to cast provisional ballots when they make

simple mistakes on their mail ballots—including the

failure to provide a date. Id. at 1219–21.

1 Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Ta-

kushi, 504 U.S. 428 (1992). The first step of that framework requires careful examination of the “character and magnitude” of

the claimed constitutional injury. Anderson, 460 U.S. at 789; Burdick, 504 U.S. at 434. Step two then requires courts to weigh the

burden the State’s rule imposes against the interests the State

contends justify that burden. Ibid.

Because the Third Circuit preempted the Pennsylvania Supreme Court’s imminent guidance, however, it

incorrectly construed state law to provide a voter with

no recourse when they fail to date their mail-in ballot.

The Third Circuit’s mistaken understanding of Pennsylvania law was central to its conclusion that the date

requirement is unconstitutional under Anderson-Burdick. App.36a (“A Pennsylvania mail-in voter who fails

to comply with the date requirement will not have his

or her vote counted. Period.”); App.34a (“Pennsylvania

county election boards have no obligation under the

Election Code to notify voters if their ballots are rejected for failure to comply with the date requirement.”). So, there is at least a reasonable probability

that the result below would have been different if the

panel had the benefit of Coalfield Justice.

This Court has a “‘longstanding practice’ of vacating

a court of appeals’ decision based on a construction of

state law that appears to contradict a recent decision

of the highest state court.” Lords Landing Vill. Condo.

Council of Unit Owners v. Continental Ins. Co., 520

U.S. 893, 896 (1997) (per curiam). It should employ

that practice here.

If the Court does not issue a GVR, it should resolve

the question presented. As the Third Circuit acknowledged, see App.41a n.35, its decision deepens a circuit

split over the second step of Anderson-Burdick, which

has persisted since this Court’s fractured ruling in

Crawford v. Marion County Election Board, 553 U.S.

181 (2008) (plurality). While some courts (the First,

Second, Fourth, Fifth, Seventh, Ninth, and Eleventh

Circuits) apply rational basis review to neutral ballotcasting rules amounting to the “usual burdens of voting,” id. at 198, others (the Sixth, Eighth, Tenth, and

now Third Circuits) elevate their scrutiny for all Anderson-Burdick claims. And underlying this 7-4 split

are more fundamental questions regarding how to

identify and define burdens on voting rights in the first

place.

The implausibility of the result below demonstrates

that post-Crawford divergence over the proper application of Anderson-Burdick is no longer tenable. Absent

a GVR, this Court should grant plenary review to clarify the role federal courts play when reviewing state

voting regulations and the proper analysis for de minimis or otherwise “usual” burdens. This case presents

an excellent vehicle for doing so.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

149 F.4th 291 and reproduced in the appendix at

1a–51a. The dissenting opinions from the denial of rehearing en banc are reported at 158 F.4th 185 and reproduced in the appendix at 91a–115a. The District

Court’s opinion is reported at 775 F.Supp.3d 903 and

reproduced in the appendix at 52a–77a.

STATEMENT OF JURISDICTION

The Court of Appeals entered its judgment on August 26, 2025, and denied rehearing en banc on October

14, 2025. On December 5, 2025, Justice Alito extended

the time to file a petition for a writ of certiorari to and

including February 11, 2026. Petitioner invokes the jurisdiction of this Court under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The First and Fourteenth Amendments to the

United States Constitution and the relevant provisions

of Pennsylvania’s Election Code are reproduced in the

appendix at 116a–119a.

STATEMENT OF THE CASE

1. Act 77 (2019), amended Pennsylvania’s Election

Code to permit universal no-excuse mail-in voting. 25

Pa. Stat. §§3146.1; 3150.11. Its reforms were “the result of years of careful consideration and debate[.]”

McLinko v. Pennsylvania Dep’t of State, 278 A.3d 539,

543 (Pa. 2022). Act 77’s provisions expanding access to

the ballot were “not written to benefit one party or the

other, or one candidate or single election.” Ibid. (citation omitted). The legislation was thus “enormously

popular *** on both sides of the isle,” receiving overwhelming Republican support in the General Assembly

before being signed by a Democratic governor. Ibid.

Notably, Act 77’s grand bargain included a non-severability clause. It commands that key provisions, including those that expand mail-in voting, are “void” if

any of them, or their “application to any person or circumstance is held invalid.” See Act of October 31, 2019,

P.L. 552, No. 77 § 11. Thus, challenges to Act 77 inherently imperil no-excuse mail-in voting for all Pennsylvanians.

Act 77 outlines the steps a voter must follow to cast

a valid mail-in ballot. A mail-in voter places their

marked ballot in a secrecy envelope, which goes inside

an outer return envelope. They must then “fill out, date

and sign” a pre-printed declaration on the outer envelope and send the completed return packet to a county

board of elections. See 25 Pa. Stat. §§3146.6; 3150.16.

Since 2019, the simple requirement that voters write

dates next to their signatures2 has faced a bevy of chal-

2 Throughout this litigation, the Commonwealth has insisted

that conceiving of the handwritten date as an independent requirement, as opposed to a component of the larger declaration

lenges under various legal theories. See, e.g., Pennsylvania State Conference of NAACP Branches v. Secretary Commonwealth of Pa., 97 F.4th 120 (3d Cir. 2024),

cert. denied, No. 24–363, 145 S. Ct. 1125 (Jan. 21, 2025)

(Pennsylvania NAACP);3 Baxter v. Philadelphia Bd. of

Elections, 332 A.3d 1183 (Pa. Jan. 17, 2025) (per curiam) (granting allocatur).4

2. In 2022, an individual voter—Bette Eakin—and

three organizations (the Democratic Senatorial Campaign Committee, the Democratic Congressional Campaign Committee, and the American Federation of

Teachers – Pennsylvania) sued all 67 county boards of

election in the Western District of Pennsylvania.

App.52a–54a. They asserted, inter alia, that the date

requirement violates the First and Fourteenth Amendments to the U.S. Constitution. Ibid; but see App.103a

(Bove, J., dissenting) (“From the outset *** Plaintiffs

made only vague references to the ‘right to vote’ and

the First and Fourteenth Amendments.”).

requirement, is erroneous under familiar rules of statutory construction and Burdick itself. Abramski v. United States, 573 U.S.

169, 179 (2014) (“[W]e interpret the relevant words not in a vacuum, but with reference to the statutory context.”). That this Petition nonetheless alludes to the “date requirement” for ease and

to mirror the opinions below should not be construed as conceding

or abandoning those arguments.

3 In Pennsylvania NAACP, the Third Circuit rejected a chal-

lenge arising under the materiality provision of the Civil Rights

Act of 1964. See 52 U.S.C. §10101(a)(2)(B). Prior to that ruling, the

Third Circuit ruled that enforcing the date requirement violated

federal law. Migliori v. Cohen, 36 F.4th 153 (3d Cir. 2022). But

this Court vacated on mootness grounds. Ritter v. Migliori, 143 S.

Ct. 297 (2022).

4 The Pennsylvania Supreme Court heard oral argument in

Baxter in September 2025. It is pending disposition as of the date

of this Petition. That suit asks, in part, whether enforcing the date

requirement violates the state constitution.

Ultimately, the District Court entered judgment

against the county boards, enjoining enforcement of the

date requirement. It observed that “Plaintiffs

ground[ed] their claim in the First Amendment,” and

reasoned that the date requirement “burdens the fundamental right to vote by disenfranchising some voters

for defects in the envelope holding their ballots.” App.

63a–64a, 65a.5 In the District Court’s view, there was

“no evidence that the date requirement serves any

state interest[.]” App.76a.

The Republican National Committee, the National

Republican Congressional Committee, and the Republican Party of Pennsylvania—intervenor-defendants in

the District Court—timely appealed.

3. The Commonwealth of Pennsylvania, by and

through its Attorney General, intervened in the Third

Circuit to defend the constitutionality of Pennsylvania’s Election Code. App.22a.

4. The panel affirmed. The panel engaged in Anderson-Burdick balancing and concluded that the date requirement imposed a “minimal”—but nevertheless unjustified—“burden on voting rights *** in part, due to

its downstream consequences.” App.36a–37a.

a. The panel understood Pennsylvania law to provide no remedy if a voter fails to comply with the date

requirement when casting a mail-in ballot. App.34a (“A

*** voter who fails to comply with the date requirement

will not have his or her vote counted. Period.”); see also

App.31a (“[T]hat person’s ballot will be discounted—

potentially without notice or any opportunity to correct

the ballot.”). The panel therefore rejected the notion

that the burden of handwriting a date is de minimis

5 The District Court’s opinion did not reference the Fourteenth

Amendment.

and, accordingly, beyond the scope of Anderson-Burdick. App.35a–38a. According to the panel, a de minimis burden is one “that has *** a speculative impact on

and connection to voting rights.” App.35a. Because the

consequence of failing to handwrite the date is “not

speculative,” the burden could not be de minimis.

App.36a.

b. The panel opined that enforcement of the provision implicated the “right to vote,” which it seemingly

located in the First Amendment. App.36a. It thus

acknowledged a “minimal” burden at Anderson-Burdick’s first step because failing to provide a handwritten date results in that mail-in ballot not counting.

App.37a–38a. The panel then determined that, for a

minimal burden, the appropriate level of scrutiny was

something more rigorous than rational basis review.

App.39a.

c. The panel acknowledged a disagreement among

the Circuits as to the appropriate level of scrutiny under Anderson-Burdick’s second step. App.41a n.35.

While some apply rational basis review for minimal

burdens, the panel “declined to adopt that approach,”

and held that the appropriate level of scrutiny was

something more rigorous. Ibid.; App.39a.

d. Notably, while the panel affirmed the conclusion

that the date requirement does not pass constitutional

muster, it did so on alternative grounds. Whereas the

District Court discerned “no evidence that the date requirement serves any state interest” whatsoever,

App.76a (emphasis added), the panel disagreed. It recognized state interests in protecting against voting

fraud and communicating solemnity to a mail-in voter.

See App.44a–48a.

Nevertheless, the panel concluded that the proffered state interests were insufficient to justify the relevant burden. App.38a. The Commonwealth argued

that signing and dating something is a commonly understood act of finality that helps signal to the mail-in

voter that they have completed all necessary steps. The

panel doubted whether the date added any “incremental solemnity,” which in its view was “already accomplished” by the signature requirement. App.45a. The

panel further rejected the notion that the handwritten

date could serve any interest in the receipt or tabulation of ballots, pointing to the SURE System’s capabilities,6 and current administrative practices in most

counties. See App.43a.

The Commonwealth also asserted its interest in the

prevention and prosecution of voter fraud. To that end,

it pointed to a fraud prosecution in Lancaster County

in which a handwritten date on the outer return envelope helped prove that a woman cast her mother’s ballot after her mother had died. See App.46a–47a (citing

Commonwealth v. Mihaliak, No. MJ–2202–CR126–22

(Pa. Mag. Dist. Ct. 2022)). The panel conceded that

Mihaliak “demonstrates that the date requirement can

narrowly advance the Commonwealth’s interest in

fraud detection and deterrence.” Ibid. However, because the handwritten date would only be relevant in

the “rare instance” of a “hapless fraudster”—a “fact

pattern” that had “manifested itself only once” in Act

77’s six-year life—it could not justify the enforcement

of the date requirement writ large. App.47a–48a.

5. The Commonwealth sought rehearing en banc.

While its petition was pending, the Pennsylvania Supreme Court decided Coalfield Justice, clarifying that

6 The Statewide Uniform Registry of Electors (SURE) System

is an integrated computerized database of all registered voters,

which county boards use to track mail-in ballots. See App.15a n.9

(citing 25 Pa. Stat. §3150.1).

as a matter of state law, county boards must alert voters when they submit facially defective mail-in ballots—specifically including undated mail-in ballots—

and permit them to cast provisional ballots. Coalfield

Justice, 343 A.3d at 1216.

6. The Court of Appeals narrowly denied rehearing

en banc by a 7-6 vote. App.87a–90a. Judges Hardiman,

Bibas, Porter, Matey, Phipps, and Bove would have

granted the petition. Judges Phipps and Bove authored

dissenting opinions, both of which were joined by the

remaining dissenters. App.91a–115a.

a. Judge Phipps noted that the Pennsylvania Supreme Court’s decision in Coalfield Justice—issued

four weeks after the panel opinion—neutralized “two of

the key rationales for th[e] Court’s decision: the lack of

notice of a rejected mail-in ballot and the opportunity

to correct such a rejected ballot.” App.92a.7 In his view,

this development alone necessitated rehearing. Ibid.

Additionally, Judge Phipps expressed skepticism at

the panel’s refusal to treat the date requirement as imposing a de minimis burden. Ibid. And he suggested

that the panel “substantially undervalued the Commonwealth’s identified interests” in the date requirement. Ibid.

b. Judge Bove noted that complying with the date

requirement “should take less than five seconds.”

App.94a. And he expressed incredulity at the idea that

those five seconds “violate the First and Fourteenth

Amendments.” App.94a–95a.

Judge Bove then reiterated a persistent criticism of

Anderson-Burdick: that it invites judicial usurpation of

a role constitutionally assigned to state legislatures.

7 Coalfield Justice highlighted that the SURE System, which

all counties must use, sends out automatic notifications to voters

who make mistakes. See 343 A.3d at 1212–14.

App.94a–96a (citing, inter alia, Daunt v. Benson, 999

F.3d 299, 323 (6th Cir. 2021) (Readler, J., concurring)).

He called the panel opinion “particularly invasive” because it marginalized that test’s de minimis exception,

over-scrutinized the Commonwealth’s proffered interests, and haphazardly broadened the categories of

claims that pass Anderson-Burdick step one. App.97a–

109a (citing Lichtenstein v. Hargett, 83 F.4th 575, 590

(6th Cir. 2023)). Judge Bove also echoed Judge Phipps’s

observation that, following Coalfield Justice, “there is

no longer any basis for the suggestion that a Pennsylvania voter who submits a defective mail-in ballot will

be disenfranchised without notice.” App.101a.

Judge Bove then criticized the panel’s framing of

the appeal around the “right to vote” when the challengers “did not allege the types of speech, association,

equal protection, or due process claims that could arguably support Anderson-Burdick balancing.” App.103a.

The panel’s invocation of “downstream consequences,”

he explained, operated as a “backdoor to the flawed ***

theory” that voters are disenfranchised when defective

ballots do not count. App.105a. And that theory conflicted with the reasoning of yet another Third Circuit

case. Ibid. (citing Pa. NAACP, 97 F.4th at 133 (“[W]e

know no authority that the right to vote encompasses

the right to have a ballot counted that is defective under state law.”)).

Writing on a clean slate, Judge Bove would have

dismissed the suit under Rule 12(b)(6) based upon its

“vague references to the First and Fourteenth Amendments.” App.106a. Assuming a proper claim, however,

he would have applied rational basis review. Ibid. Failing to do so, he contended, deepened a circuit split regarding the continued validity of this Court’s holding

in McDonald v. Board of Election Commissioners of

Chicago, 394 U.S. 802 (1969). App.106a–108a.

After briefly touching on the various state interests

and how they had been “discounted,” Judge Bove urged

the Commonwealth to look to this Court “for assistance

in restoring the state-federal equilibrium” in constitutional election litigation. App.112a–115a.

REASONS FOR GRANTING THE PETITION

THIS COURT SHOULD VACATE THE JUDGMENT AND

REMAND FOR FURTHER PROCEEDINGS IN LIGHT

OF COALFIELD JUSTICE.

Because the Court of Appeals “evaluated the prior

scheme for mail-in voting, not the one now required by

Coalfield Justice,” this Court should GVR. See App.92a

(Phipps, J., dissenting); App.101a–102a (Bove, J., dissenting).

This Court has a “‘longstanding practice’ of vacating a court of appeals’ decision based on a construction

of state law that appears to contradict a recent decision

of the highest state court.” Lords Landing, 520 U.S. at

896 (per curiam) (quoting Thomas v. American Home

Prod., Inc., 519 U.S. 913, 914 (1996) (Scalia, J., concurring)). After all, “state courts are the ultimate expositors of state law[.]” Mullaney v. Wilbur, 421 U.S. 684,

691 (1975).

Federal courts, by contrast, “often get state law

wrong because federal judges don’t know state law and

are not the ultimate decisionmakers on it.” Guido Calabresi, Federal and State Courts: Restoring a Workable

Balance, 78 N.Y.U. L. REV. 1293, 1300 (2003). When

that happens, it creates the potential for “serious disruption *** of state government or needless friction between state and federal authorities.” Louisiana Power

& Light Co. v. City of Thibodaux, 360 U.S. 25, 28

(1959); Allstate Ins. Co. v. Menards, Inc., 285 F.3d 630,

638 (7th Cir. 2002) (“missteps by federal courts” on

state law questions can produce “disastrous results”).

As Justice Scalia noted, the origins of this Court’s GVR

practice are linked to the “special deference owed to

state law and state courts in our system of federalism.”

Youngblood v. West Virginia, 547 U.S. 867, 874 (2006)

(per curiam) (Scalia, J., dissenting) (cleaned up).

This case is a prime candidate for a GVR. Pennsylvania courts were actively deciding highly relevant

questions about the operation of Pennsylvania’s Election Code during the pendency of this case. Yet the federal courts exhibited no deference—special or otherwise—to the state judiciary.

The Third Circuit did not acknowledge, let alone

“consider[] and reject[]” the effect of recent and onpoint Pennsylvania Supreme Court decisions that dismantle its core rationale. Cf. Lords Landing, 520 U.S.

at 897; App.91a (Phipps, J., dissenting) (calling notice

and cure “[c]entral to [the Court’s] analysis”); App.101a

(Bove, J., dissenting) (state court developments “allay[ed] the [Court’s] main concerns”). After Coalfield

Justice, the Third Circuit’s understanding of state election law is woefully incomplete, if not outright wrong.

Such circumstances warrant a GVR under this

Court’s longstanding practice. See, e.g., Arizona v.

Gant, 540 U.S. 963 (2003) (per curiam); Nolan v. Transocean Air Lines, 365 U.S. 293, 295–96 (1961) (per curiam); Huddleston v. Dwyer, 322 U.S. 232, 236 (1944)

(per curiam). In Lords Landing, for instance, the

Fourth Circuit relied upon an understanding of Maryland insurance law, of which that state’s highest court

had “expressly disapproved” just 11 days earlier. See

520 U.S. at 895. The plaintiffs were unaware of that

state court decision when the federal court ruled, but

soon learned of it and requested reconsideration on

those grounds. Ibid. The Fourth Circuit summarily declined, “ambiguous[ly]” deeming the request “without

merit.” Id. at 896–97. This Court issued a GVR because

it was unclear whether the Fourth Circuit “actually

considered and rejected” petitioner’s argument. Id. at

897. Maryland’s highest court had plainly “cast doubt

on the soundness of the [Fourth Circuit’s] decision,”

which in turn merited further consideration. Id. at 895.

Relatedly, in Thomas, the Eleventh Circuit was unable to consider a relevant Georgia Supreme Court decision, issued shortly after the federal court denied rehearing en banc. See 519 U.S. at 913. This Court

granted a GVR due to that intervening state-court development. Concurring, Justice Scalia emphasized

that the Court’s decision fell “squarely within [its] historical use” of the GVR. Id. at 914 (Scalia, J., concurring). He explained that the GVR in Thomas did not

rebuke the lower court for failing to anticipate “the

course that the Supreme Court of Georgia would ultimately take.” Id. at 915. Rather, vacatur rightly allowed the federal court “to consider an intervening decision” by “the final expositor of a particular body of

law”—there, the Supreme Court of Georgia. Ibid.

The same result is appropriate here. First, the

holding in Coalfield Justice directly contradicts the

Third Circuit’s professed understanding of the Election

Code. Second, that contradiction is logically and doctrinally intertwined with the federal constitutional question at issue.

A. The Third Circuit Misconstrued State Law

At the crux of the Third Circuit’s analysis was the

proposition that county boards of election “need not

provide notice” to voters of a disqualifying ballot defect,

such as failing to provide a date. App.17a. Citing Pennsylvania Democratic Party v. Boockvar, 238 A.3d 345

(Pa. 2020), the panel catastrophized that some voters’

ballots would be stricken “potentially” without their

knowledge or the “opportunity to correct the ballot.”

App.31a. The holding in Coalfield Justice—issued just

four weeks after the Third Circuit’s opinion—torpedoes

that reasoning.

Initially, Coalfield Justice explicitly counsels

against reading Boockvar too broadly. The Pennsylvania Supreme Court explained that Boockvar concerned

only “the notice and opportunity to cure procedure

sought by [p]etitioner” therein. Coalfield Justice, 343

A.3d at 1217 (emphasis in original). Accordingly, when

presented with a more developed challenge—grounded

in procedural due process rights, Pennsylvania’s robust

provisional balloting mechanism, and specific commands to county boards within the Election Code—it

reached a very different result. Id. at 1193–97, 1203,

1215–18.

Coalfield Justice establishes that Pennsylvania

mail-in voters will receive notice of facial ballot defects

through county boards’ use of the SURE system. Id. at

1184–85 n.7, 1209, 1215 (citing 25 Pa. Stat. §1402(c));

supra n.6. Contrary to the Third Circuit’s view, Pennsylvania’s Election Code does not preclude a mail-in

voter who makes a mistake from casting a provisional

ballot. App.14a, 31a. Rather, it expressly contemplates

that very circumstance. Coalfield Justice, 343 A.3d at

1203. Together, these elements—a notification about

one’s mistake and the opportunity to nonetheless

vote—dispel the concerns that led the Third Circuit to

elevate its scrutiny of Pennsylvania’s law.

B. The Third Circuit’s State Law Error Was

Pivotal to its Anderson-Burdick Analysis

This Court routinely GVRs a case in which “intervening developments *** reveal a reasonable probability that the decision below rests upon a premise that

the lower court would reject if given the opportunity for

further consideration.” Lawrence on Behalf of Lawrence v. Chater, 516 U.S. 163, 167 (1996) (per curiam).

It need not be certain that the court of appeals will

reach a different result. Rather, “[i]t is precisely because of the uncertainty that [this Court] GVRs.” Id. at

172, 174.

In concluding that the date requirement is unconstitutional, the Third Circuit focused on the purported

“downstream consequences” of failing to write the date.

App.35a–38a. It believed that those consequences were

certain, i.e., the voter would be precluded from casting

a valid ballot. App.31a, 34a. But Coalfield Justice establishes the opposite. A Pennsylvania voter in Eakin’s

position—that is, one who chooses to vote by mail and

neglects to date the envelope—will have the opportunity to cast a provisional ballot. Coalfield Justice,

343 A.3d at 1222. So, that voter will suffer “downstream consequences” only if they decline to avail

themselves of that opportunity.

As the dissenters from rehearing en banc articulated, little of the reasoning below thus remains to satisfy Anderson-Burdick’s first step. App.91a (Phipps, J.,

dissenting); App.101a (Bove, J., dissenting). The

panel’s erroneous understanding of Pennsylvania law

has far-reaching implications because, historically,

“much of the action” takes place at the first step.

Acevedo v. Cook Cnty. Officers Electoral Bd., 925 F.3d

944, 948 (7th Cir. 2019) (cleaned up); cf. Crawford, 553

U.S. at 205 (Scalia, J., concurring) (“[W]e have to identify a burden before we can weigh it.”).

Moreover, federal courts analyzing similar circumstances all instruct that state efforts to mitigate a burden on voters are highly relevant to the constitutional

assessment of an underlying rule.8 The Third Circuit’s

logic below, see App.17a, 31a, 43a, and this Court’s own

reasoning in Crawford reinforce that reasoning.9 This

Court should remand for an analysis that proceeds

from an accurate understanding of Pennsylvania law

as expounded by the Commonwealth’s highest court.

II. ALTERNATIVELY, THIS COURT SHOULD GRANT

PLENARY REVIEW TO CLARIFY THE SCOPE OF ITS

ANDERSON-BURDICK FRAMEWORK

At its best, this Court’s Anderson-Burdick framework is the “flexible” and “fact-intensive” workhorse of

American election law. Buckley v. American Const. L.

Found., Inc., 525 U.S. 182, 215 (1999) (O’Connor, J.,

concurring in judgment); Gill v. Scholz, 962 F.3d 360,

365 (7th Cir. 2020). But, since Crawford, some have

pushed that flexibility beyond any reasonable breaking

point. And, at its worst, Anderson-Burdick amounts to

little more than a “judicial eyeball test[;]” a “standardless standard[;]” a “flabby *** ad hoc totality-of-the-circumstances” exercise; and “such an imprecise instrument that it is easy for the balance to come out one way

See, e.g., New Georgia Project v. Raffensperger, 976 F.3d

1278, 1281–82 (11th Cir. 2020); Northeast Ohio Coal. for the

Homeless v. LaRose, 767 F.Supp.3d 585, 607 (N.D. Ohio 2024);

DCCC v. Ziriax, 487 F.Supp.3d 1207, 1229–30 (N.D. Okla. 2020);

League of United Latin Am. Citizens of Iowa v. Pate, 950 N.W.2d

204, 213 (Iowa 2020).

9 In Crawford, all four opinions discussed the carve-out Indi-

ana’s statute provided to voters who were “indigent or [had] a religious objection to being photographed.” Crawford, 553 U.S. at

186. (Stevens, J., plurality). Those voters were entitled to cast a

provisional ballot. See id. at 199–200 (such ballots “will ultimately

be counted”); id. at 205 (Scalia, J., concurring); id. at 216 (Souter,

J., dissenting); id. at 239–40 (Breyer, J., dissenting).

in the hands of one judge, yet come out in the exact opposite way in the hands of another.”10

This case is a near-perfect vehicle for a muchneeded recalibration. Cf. infra I. Review would allow

this Court to resolve an acknowledged circuit split over

the proper level of scrutiny for minimal burdens under

Anderson-Burdick. And it would enable this Court to

provide much-needed guidance on fundamental questions about federalism and the separation of powers in

voting rights cases.

A. The Circuits Are Split 7–4 Over What Scrutiny Applies to Minimally Burdensome

Election Laws

The Third Circuit’s ruling deepened a longstanding

circuit split over the appropriate level of scrutiny at

Anderson-Burdick step two. Step two requires courts to

“weigh *** the burden the State’s rule imposes on

rights against the interests the State contends justify

that burden.” Timmons v. Twin Cities Area New Party,

520 U.S. 351, 358 (1997).

Classifying the burden of complying with the date

requirement as “minimal,” the Third Circuit nonetheless zealously probed the Commonwealth’s interests.

See App.47a–48a (discounting anti-fraud interest because law furthers it “rare[ly]”); App.45a (“there are

other aspects of the mail-in voting process that promote

solemnity”). In other words, it was not enough that

10 See Bruce E. Cain & Aaron Spikol, Balancing Small-D Dem-

ocratic Values, 2024 U. ILL. L. REV. 1699, 1730–31 (2024); Daunt,

999 F.3d at 323 (Readler, J., concurring); Derek T. Muller, The

Fundamental Weakness of Flabby Balancing Tests in Federal

Election Law Litigation, EXCESS OF DEMOCRACY BLOG (Apr. 20,

2020), https://perma.cc/4EM2-QPJ5; Edward B. Foley, Voting

Rules and Constitutional Law, 81 GEO. WASH. L. REV. 1836, 1859

(2013).

Pennsylvania’s law “rationally served *** important

state interests.” App.41a n.35 (citations omitted).

1. The majority view. The First, Second, Fourth,

Fifth, Seventh, Ninth, and Eleventh Circuits uphold

election rules that are nondiscriminatory or otherwise

impose only trivial burdens on voting, if they serve “important regulatory interests.” Anderson, 460 U.S. at

788; Burdick, 504 U.S. at 434. In other words, these

courts apply a “less searching” rational basis review, or

something close to it. App.41a n.35.

a. Texas requires mail-in voters to sign a “carrier

envelope,” affirming that the enclosed ballot expresses

the voter’s intent “independent of any dictation or undue persuasion by any person.” See Richardson v.

Texas Sec’y of State, 978 F.3d 220, 225 (5th Cir. 2020).

After a district court effectively “t[ook] it upon itself to

rewrite” the relevant statutes pursuant to AndersonBurdick, the Fifth Circuit reversed. Id. at 224.

The district court treated state law as imposing a

severe burden because of the possibility of “untimely

notice of rejection,” which would mean no “meaningful

opportunity to cure” for “certain voters.” Id. at 236–37.

But the Fifth Circuit explained that treating “ordinary

and widespread burdens” as severe because of “their

impact on a small number of voters,” would result in

erroneously subjecting every election rule to strict scrutiny. Ibid. (quoting Clingman v. Beaver, 544 U.S. 587,

593 (2005)). The signature requirement was “no more

burdensome” than the law that withstood constitutional review in Crawford, and states need not “afford

every voter *** infallible ways to vote.” Id. at 237–38

(quoting Texas League of United Latin Am. Citizens v.

Hughs, 978 F.3d 136, 146 (5th Cir. 2020)). Succinctly,

“mail-in ballot rules that merely make casting a ballot

more inconvenient for some voters are not constitutionally suspect.” Ibid.

Given the minimal burden, Texas did not need to

“provide evidence of voter fraud” to substantiate its interest, nor was it required to demonstrate that its rule

was narrowly tailored. Id. at 239–40. “[T]he AndersonBurdick framework,” the Fifth Circuit explained, “imposes a narrow-tailoring requirement only on restrictions that constitute severe burdens, not on reasonable voting restrictions.” Id. at 241 (emphasis in original).

b. Virginia precludes local candidates from using

party identifiers on the ballot. Marcellus v. Virginia

State Bd. of Elections, 849 F.3d 169, 172–73 (4th Cir.

2017). When county officials challenged that law under

Anderson-Burdick, they asserted, in part, that it took

the “wrong approach” to furthering a legitimate state

interest in combatting the negative effects of partisanship. Id. at 179. The Fourth Circuit disagreed.

It concluded that the burden on associational and

equal protection rights was “at most minimal” because

candidates still had at their disposal “every other avenue by which to inform voters of [their affiliation].” Id.

at 178. Because the burden was minimal, the Fourth

Circuit asked whether there was a “legitimate” state

interest supporting the regulation, and whether there

was a “rational basis” for distinguishing between local

candidates and statewide candidates. Id. at 179–80. It

answered both questions affirmatively, cautioning that

“[w]hether any such risk [plaintiffs posit] is sufficient

to outweigh the statute’s benefits *** is a legislative

judgment for Virginia to make.” Ibid.

c. Georgia requires third-party and independent

candidates seeking ballot access to submit a nominating petition with a certain number of signatures and

pay a small fee. Cowen v. Secretary of State of Georgia,

22 F.4th 1227, 1230–31 (11th Cir. 2022). When voters

and prospective candidates challenged this scheme and

invoked the Anderson-Burdick framework, federal

courts upheld the state law. Ibid.

The Eleventh Circuit acknowledged that collecting

signatures can be “costly and difficult.” Id. at 1232–33.

But it emphasized that (i) at least one local candidate

had satisfied the requirement, meaning that the state

did not “bar candidates from the ballot” as a practical

matter; and that (ii) the state provided alternative

means for ballot access. Ibid. (discussing accommodation for indigent candidates). Accordingly, the court

acknowledged no severe burden on First or Fourteenth

Amendment rights. Id. at 1234.

Discerning no severe burden, the Eleventh Circuit

upheld the requirements as a “rational way” of meeting

state interests. Ibid. (cleaned up). And it did not demand “proof of actual voter confusion, ballot overcrowding, or the presence of frivolous candidacies” to

justify the state’s choices. Id. at 1234–36 (“Though we

might be able to imagine more narrowly tailored alternatives *** [Anderson-Burdick] does not require perfect tailoring when the disparity is not severe.”).

d. These cases illustrate the approach taken in a

majority of circuits. The Second and Ninth Circuits,

like the Fifth, disclaim any requirement of narrow tailoring or “particularized showings” of a state’s justification to uphold a nondiscriminatory regulation. Price

v. New York State Bd. of Elections, 540 F.3d 101, 109

(2d Cir. 2008); Montana Green Party v. Jacobsen, 17

F.4th 919, 926 (9th Cir. 2021). The First and Seventh

Circuits, like the Eleventh, use the familiar language

of rational basis review when they analyze non-severe,

generally applicable burdens. Barr v. Galvin, 626 F.3d

99, 110–11 (1st Cir. 2010); Luft v. Evers, 963 F.3d 665,

677 (7th Cir. 2020).11

2. The minority view. On the other hand, the Sixth,

Eighth, and Tenth Circuits—now joined by the Third

Circuit—elevate their scrutiny no matter the burden at

issue. These courts have invalidated generally applicable state election rules for lack of evidence substantiating claimed governmental interests.

a. The Sixth Circuit reflexively deems “most” Anderson-Burdick cases to “fall in between” the extremes

of a severe burden and no burden at all, and it habitually rejects state interests deemed too “vague” or unsupported by empirical evidence. Obama for Am. v.

Husted, 697 F.3d 423, 434 (6th Cir. 2012); Daunt, 999

F.3d at 330 (Readler, J., concurring) (criticizing court’s

“aggressive deployment of Anderson-Burdick”). Accordingly, it once enjoined Ohio from providing early voting

opportunities to military voters that were unavailable

to non-military voters. Obama for Am., 697 F.3d at 425.

The Sixth Circuit acknowledged “a compelling reason

to provide more opportunities for military voters to cast

their ballots.” Id. at 434. But it saw “no corresponding

satisfactory reason to prevent non-military voters from

casting their ballots as well.” Ibid.

The Sixth Circuit determined that the burden on

voting was “not severe, but neither [was] it slight.” Id.

at 433. It thus looked to whether the state’s interest in

“smooth election administration” was “sufficiently

weighty” to justify eliminating in-person early voting

for civilians. Id. at 433. Statistical studies estimated

that nearly 100,000 civilian voters would choose to cast

a ballot early, and the state suggested that attendant

In particular, the Seventh Circuit emphasizes assessing

rules in the context of a wider statutory scheme. See Luft, 963 F.3d

at 671–72.

administrative burdens would make things difficult for

local officials preparing for Election Day. Id. at 431.

But the Sixth Circuit dismissed the state’s administrative concerns as “vague” and unsupported by evidence,

reasoning that local officials had ably “cope[d]” with the

early voting system in past elections. Id. at 434.

b. The Eighth and Tenth Circuits have followed

suit, pulling on jurisprudential threads Justices Stevens and Souter discussed in Crawford. See 553 U.S. at

203 (Stevens, J., plurality); id. at 216 (Souter, J., dissenting). In SD Voice v. Noem, a district court permanently enjoined South Dakota from enforcing a oneyear filing deadline for ballot initiative petitions. 60

F.4th 1071, 1075 (8th Cir. 2023). The Eighth Circuit

discerned a “less than severe” burden but ultimately

affirmed. Id. at 1080. It rejected state interests in administrative efficiency, election integrity, and the legislature’s ability to respond to ballot questions—not as

illegitimate, but because the state “failed to provide evidence” substantiating them. Id. at 1082.

In Fish v. Schwab, a district court permanently enjoined Kansas from enforcing its law requiring documentary proof of citizenship when registering to vote.

957 F.3d 1105, 1111 (10th Cir. 2020). The Tenth Circuit

affirmed, calling the burden not “severe” but “significant.” Id. at 1128 n.6. Because the burden was significant as opposed to “limited,” the Tenth Circuit skirted

this Court’s guidance in Crawford about state interests

in preventing voter fraud and struck down the law

based on Kansas’ failure to show “that a substantial

number of noncitizens successfully registered to vote.”

Id. at 1144 (discussing Crawford, 553 U.S. at 194 (plurality) (“[t]he record contain[ed] no evidence of any

such fraud actually occurring in Indiana at any time in

history.”)).

3. Courts applying traditional Anderson-Burdick

would have recognized either the date requirement’s

utility in prosecuting fraud, or the legislative judgment

that Pennsylvanians ascribe some solemn importance

to a dated signature—or both.12 The Commonwealth

would not have been expected to meet some ethereal

standard for how “hapless” a fraudster may be before

they are most properly ignored; or to guess how many

prosecutions can legitimize a law’s passage; or to prove

the incremental value of every jot and tittle of its mailin ballot scheme. See App.38–49a; cf. Luft, 963 F.3d at

671–72.

In short, the court below explicitly acknowledged

and resolved a conflict of authority as to the degree of

scrutiny federal courts employ at step two of AndersonBurdick. See App.41a n.35. That tension—as evidenced

by the mismatch between the Third Circuit’s characterization of the burden as “minimal” and its pointed

examination of state interests—merits this Court’s review.

B. The Third Circuit’s Lax Approach to Defining the Burden at Issue Demonstrates

Fundamental Confusion Underlying Anderson-Burdick

The first step of Anderson-Burdick requires careful

examination of the “character and magnitude” of a

claimed constitutional injury. Anderson, 460 U.S. at

789. Failure to meaningfully engage in that inquiry is

12 The Commonwealth does not press any further its argument

that the handwritten date serves an interest in counting or tabulating ballots. Because consternation over this question distracts

from other, stronger arguments, see App.42a–44a, this Petition

sets forth as government interests (1) protecting against and prosecuting fraud; and (2) promoting and communicating solemnity to

the voter.

a calling card for the courts that have supercharged

Anderson-Burdick beyond recognition. And it has cascading negative consequences.

Simply put, the framework this Court developed is

not an independent source of constitutional protection.

It provides structure for lower courts as they determine

which legal standards and principles apply to a given

dispute.

To illustrate this point, it bears emphasis what the

lower courts here did not conclude. Neither court determined that the date requirement implicates core political speech, nor that it disadvantages voters who share

a particular viewpoint, associate with one another, or

wish to associate with one another.13 Indeed, the date

requirement is generally applicable, uniformly applied,

and has not been shown to hamper, either intentionally

or incidentally, the electoral behavior of individuals

who share particular characteristics. Cf. Ohio Democratic Party v. Husted, 834 F.3d 620, 627 (6th Cir. 2016)

(considering whether elimination of early-voting period

and same-day registration disadvantaged African

American voters).

Lacking any indication that the date requirement

implicates concrete constitutional concerns, the Third

Circuit hung its hat on “vague references to the right

to vote and the First and Fourteenth Amendments.”

App.103a (Bove, J., dissenting). Nothing in this Court’s

caselaw sanctions such unmoored judicial balancing.

13 Cf. Soltysik v. Padilla, 910 F.3d 438, 445 (9th Cir. 2018)

(discussing “potentially significant handicap” of “misleading” label

for independent candidates); Lerman v. Board of Elections in City

of New York, 232 F.3d 135, 146 (2d Cir. 2000) (subjecting “core

political speech” to “exacting scrutiny”).

Rather, this Court is concerned with “actual violation[s] of the Constitution.” App.102a–103a (Bove, J.,

dissenting).

The Third Circuit’s unprincipled methodology proceeded from imprecision of its federal constitutional

hook. Shrugging off this Court’s various admonitions

concerning the contours of the right to vote, it bulldozed the separation of powers and relevant federalism

principles. Burdick, 504 U.S. at 433 (“the right to vote

in any manner is not absolute”); Rodriguez v. Popular

Democratic Party, 457 U.S. 1, 9 (1982) (“the Constitution does not confer the right of suffrage upon anyone

*** [and] the right to vote, per se, is not a constitutionally protected right”) (cleaned up).

Properly construed, Anderson-Burdick “forecloses

[the] substitution of judicial judgment for legislative

judgment” on the “political question [of] *** whether a

rule is beneficial on balance.” Luft, 963 F.3d at 671. Because the variant of that framework applied below invites that substitution, this Court should provide guidance to the bench and bar.

III. THE QUESTION PRESENTED IS IMPORTANT

The ambiguities that Crawford left behind are no

secret. Nearly all agree that Justice Stevens’s plurality

opinion is the narrowest and therefore controls—but its

phrasing is, to say the least, “a little unclear.” James

M. Fischer, What Are “The Usual Burdens of Voting”?,

40 GA. ST. U. L. REV. 573, 581 (2024).14

14 In Crawford, both Justice Stevens and Justice Souter engaged in interest balancing. Unlike the dissent, though, the plurality did not address the “scope of voter burden,” nor did it seem

to factor into its analysis the “number of individuals likely to be

affected.” Richard W. Trotter, Vote of Confidence, N.Y.U. J. LEGIS.

& PUB. POL’Y 515, 543 (2013); Joshua A. Douglas, Is the Right to

Vote Really Fundamental?, 18 CORNELL J. L. & PUB. POL’Y 143,

The advent of voting by mail in Pennsylvania and

across the United States has exacerbated these ambiguities. Cycle after cycle, federal courts applying Anderson-Burdick struggle to reach consensus on constitutional questions concerning provisional balloting, receipt deadlines, and drop boxes. This confusion has produced tortured litigation histories across the country.15

The deep doctrinal unpredictability associated

with the muscular form of Anderson-Burdick cries out

for this Court’s review. Disharmony and divergent rationales pose a real practical problem for states as they

enact, refine, and utilize mail-in voting schemes. Legislators and county election officials require clarity as

they wield the state’s “broad power to prescribe the

‘[t]imes, [p]laces and [m]anner of holding [e]lections’”

for both federal and state offices. Washington State

Grange v. Washington State Republican Party, 552

U.S. 442, 451 (2008) (cleaned up).

172 (2008) (“Crawford injected even more confusion into this issue”).

15 See, e.g., Service Emps. Int’l Union, Local 1 v. Husted, 887

F.Supp.2d 761, 777–79 (S.D. Ohio 2012), rev’d in part, Northeast

Ohio Coal. for Homeless v. Husted, 696 F.3d 580, 604 (6th Cir.

2012) (per curiam) (reversing preliminary injunction); Northeast

Ohio Coal. for Homeless v. Husted, No. 06–CV–896, 2016 WL

3166251 (S.D. Ohio June 7, 2016) (granting relief on separate Anderson-Burdick claim), rev’d in part, 837 F.3d 612 (6th Cir. 2016),

abrogated in part, Tennessee Conference of NAACP v. Lee, 139

F.4th 557 (6th Cir. 2025); Ohio Org. Collaborative v. Husted, 189

F.Supp.3d 708 (S.D. Ohio 2016) (revisiting issue after consent decree), rev’d sub nom. Ohio Democratic Party, 834 F.3d at 620; see

also Edward B. Foley, Due Process, Fair Play, and Excessive Partisanship, 84 U. CHI. L. REV. 655, 678 nn.91–92 (2017) (citing cases

in Wisconsin and Texas); Joshua A. Douglas, Undue Deference to

States in the 2020 Election Litigation, 30 WM. & MARY BILL RTS.

J. 59, 64–67 (2021) (citing cases in Minnesota, Tennessee, Michigan, and Arizona).

One understanding suggests that as long as states

do not “violate[] *** specific provisions of the Constitution,” Williams v. Rhodes, 393 U.S. 23, 29 (1968), and

their choices are “reasonable and neutral,” they should

be “free from judicial second-guessing,” Weber v. Shelley, 347 F.3d 1101, 1107 (9th Cir. 2003).16 After all,

“[n]o balloting system is perfect.” Id. at 1106; Burdick,

504 U.S. at 433 (“Election laws will invariably impose

some burden upon individual voters.”).

But another understanding—adopted below—

treats balancing as inevitable. Cf. App.63a. This approach admits of no limiting principle. And it sanctions

a system of crafting election laws that is an ongoing,

free-wheeling, and sometimes one-sided dialogue between the judiciary and the legislature.17

Granting review in this case to reject the latter

view and clarify the principles undergirding AndersonBurdick would be a coup for judicial economy, the separation of powers, and “our system of federalism.”

Youngblood, 547 U.S. at 874 (Scalia, J., dissenting). Jurists and claimants alike benefit from clear rules, especially in a politically fraught and contentious thicket of

Cf. App.64a (“Plaintiffs ground their claim in the First

Amendment to the Constitution.”), App.105a (Bove, J., dissenting)

(suggesting that Eakin failed to state a claim “altogether *** by

relying on vague references to the First and Fourteenth Amendments”).

17 Since Pennsylvania adopted universal no-excuse mail vot-

ing in 2019, courts have considered a host of challenges to the date

requirement. See supra n.3. Another case filed alongside this one

has already appeared on this Court’s docket. See Ritter, 143 S. Ct.

at 297. Looming over all of these disputes is Act 77’s non-severability clause. See App.98a–99a (Bove, J., dissenting) (“[o]ther features of Act 77 will be struck if the clause is triggered”). In short,

litigation begets more litigation. And with each successive challenge, the viability of Pennsylvania’s entire mail-in voting scheme

hangs in the balance.

this Court’s caselaw. James Madison called the regulation of American elections “a task of peculiar delicacy,”

and that task is not made any easier by lowering the

bar for federal court intervention. See James Madison,

Note to Speech on the Right of Suffrage, in 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, 450 (Max

Farrand ed., rev ed. 1966); cf. Grimes v. Smith, 776

F.2d 1359, 1367 (7th Cir. 1985) (“the federal judiciary

should not be quick to assume” role of election monitor).

With both mail-in voting and election litigation on

a steep rise, it is harrowing to consider the avalanche

of claims that are viable under the Third Circuit’s rationale if allowed to stand. Equally disconcerting, its

version of Anderson-Burdick essentially invites federal

judges to, at their discretion, superintend over “the

hurly-burly, the give-and-take of [a state’s] political

process.” Trump v. Mazars USA, LLP, 591 U.S. 848,

859 (2020) (cleaned up).

IV. THE THIRD CIRCUIT’S RULING IS WRONG

Purporting to address a fairly narrow concern

about the application of a neutral ballot-casting rule,

the Third Circuit threw open the door to all manner of

claims and effectively retired the two-step AndersonBurdick inquiry in favor of a plenary, searching review

of state election laws.

The Third Circuit invoked “downstream consequences,”—i.e., the fact that an undated ballot might

not count—to justify its heavy hand. But it is axiomatic

that rules have downstream consequences. That is

what makes them rules. Cf. App.36a–37a. And “there

must be substantial regulation of elections if they are

to be fair and honest and if some sort of order *** is to

accompany the democratic processes.” Storer v. Brown,

415 U.S. 724, 730 (1974). To demand narrow tailoring

for each discrete election rule “would have the effect of

invalidating a great many neutral voting regulations

*** that are reasonable means of pursuing legitimate

interests.” Brnovich, 594 U.S. at 673–74. And in practice, it would represent a tectonic transfer of authority

from the States to federal courts. See ibid.

Nothing in this Court’s caselaw permits, let alone

requires, such an approach.

1. It strains credulity to describe the effort required

to write a few numbers on an envelope as anything

other than de minimis. The Third Circuit’s contrary

holding rests upon a fundamental misunderstanding of

Anderson-Burdick and exacerbates latent ambiguities

in Crawford. Burdens are not measured by the consequence of failing to comply with state law, but by the

effort required to comply in the first place. Cf. Crawford, 553 U.S. at 197–201 (plurality).18

The reasoning below renders the first step of Anderson-Burdick an exercise in empty formalism. Ballotcasting rules are constitutionally suspect, it suggests,

whenever they are mandatory, regardless of the effort

it takes for voters to comply or whether the rules themselves undermine political competition. That view cannot be correct under this Court’s caselaw. See Anderson, 460 U.S. at 788 n.9 (“We have upheld generallyapplicable and evenhanded restrictions that protect

the integrity and reliability of the electoral process itself.”); id. at 794 (focusing skepticism on “restrictions

18 See also Arizona Democratic Party v. Hobbs, 18 F.4th 1179,

1188–93 (9th Cir. 2021) (rejecting notion that “the burden of a

challenged law [is] measured by the consequence of noncompliance”); New Georgia Project v. Raffensperger, 976 F.3d 1278, 1282

(11th Cir. 2020) (“Contrary to the district court’s conclusion *** no

one is ‘disenfranchised’ where voters simply had to “take reasonable steps and exert some effort to ensure that their ballots are submitted on time”).

[that] threaten to reduce diversity and competition in

the marketplace of ideas”).

Under Crawford, the federal Constitution tolerates

administrative inconveniences that amount to the

“usual burdens of voting.” Crawford, 553 U.S. at 198

(plurality). And it does not excuse Anderson-Burdick

claimants from grounding their arguments in the particular ways the federal Constitution protects the right

to vote. Cf. App.105a (Bove, J., dissenting). Here, the

only burden Eakin claimed was the burden of following

a law that applies to all mail-in voters. That burden is

de minimis.

2. Even assuming a burden exists that would trigger balancing under this framework, the Third Circuit

overstepped when it demanded evidence substantiating the wisdom of a part of a part of the Commonwealth’s Election Code. See supra n.2. This error is twofold.

First, failing to analyze Pennsylvania’s voting rules

as a whole decoupled the Third Circuit’s reasoning

from the lion’s share of Anderson-Burdick applications.

Indeed, Burdick upheld Hawaii’s law “as part of an

electoral scheme that provide[d] constitutionally sufficient ballot access.” See 504 U.S. at 441–42 (emphasis

added). Pennsylvania “has lots of rules that make voting easier,” and that fact “matter[s] when assessing

challenges to [a rule] that make[s] voting harder.” Cf.

Luft, 963 F.3d at 671–72; McLinko, 278 A.3d at 543

(discussing Act 77’s reforms).

When judges “evaluate each clause [of an election

code] in isolation,” and decide “whether any given election law is necessary,” or “beneficial, on balance,” they

resolve political disputes, not constitutional ones. Luft,

963 F.3d at 671–72. These “abstract question[s] of wide

public significance” are “most appropriately addressed

in the representative branches.” Warth v. Seldin, 422

U.S. 490, 500 (1975). Narrow claims like Eakin’s—ones

that do not implicate foundational concepts like openness and opportunity—will rarely warrant the exercise

of judicial power, which is commonly understood to be

a “tool of last resort.” Valley Forge Christian Coll. v.

Americans United for Separation of Church & State,

Inc., 454 U.S. 464, 473–74 (1982).

Second, not even rational basis review empowers

federal courts to dismiss reasonable legislative judgments. The wisdom of a given law “is not subject to

courtroom fact-finding and may be based on rational

speculation unsupported by evidence or empirical

data.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 311–

15 (1993); contra App.73a.

The Commonwealth’s proffered interests in communicating solemnity and protecting against fraud

should have been sufficient to justify any de minimis

burden associated with the date requirement, regardless of record support. Cf. Heller v. Doe, 509 U.S. 312,

320–21 (1993) (“[T]he burden is on the one attacking

the legislative arrangement to negative every conceivable basis which might support it, whether or not the

basis has a foundation in the record.”) (cleaned up, emphasis added). By putting those interests under its proverbial microscope and elevating its scrutiny without

jurisprudential cause, the Third Circuit exceeded its

role. Cf. Beach Comm’cns, 508 U.S. at 113; Richardson,

978 F.3d at 241 n.39.

This appeal presents an excellent vehicle for the

Court to reinvigorate those parts of Anderson-Burdick

that emphasize carefully defining the constitutional

right at issue and deferring to reasonable legislative

judgments. Absent such intervention, it would be difficult to distinguish the Third Circuit’s present regime

from one in which the right to vote in any manner one

chooses is “absolute.” Cf. Burdick, 504 U.S. at 433 (“the

right to vote in any manner is not absolute”).

CONCLUSION

The Court should grant, vacate, and remand in light

of Coalfield Justice. Alternatively, the Court should

grant the petition for a writ of certiorari, exercise plenary review, and resolve the question presented.

Respectfully submitted,