Opposition Brief — Pennsylvania, Petitioner v. Bette Eakin, et al.
Supreme Court briefJun 1, 2026
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Nos. 25-962, 25-967
IN THE
Supreme Court of the United States
__________________________________
REPUBLICAN NATIONAL COMMITTEE, et al.,
Petitioners,
v.
BETTE EAKIN, et al.,
Respondents.
PENNSYLVANIA,
Petitioner,
v.
BETTE EAKIN, et al.,
Respondents.
__________________________________
On Petitions for Writs of Certiorari to the United
States Court of Appeals for the Third Circuit
__________________________________
EAKIN RESPONDENTS’ BRIEF IN OPPOSITION
Uzoma N. Nkwonta
Counsel of Record
Richard A. Medina
Nicole E. Wittstein
Omeed Alerasool
ELIAS LAW GROUP LLP
250 Massachusetts Ave. NW,
Suite 400
Washington, DC 20001
(202) 968-4490
unkwonta@elias.law
i
QUESTION PRESENTED
In recent elections, county supervisors of elections
across the Commonwealth of Pennsylvania have been
forced to disqualify thousands of otherwise valid mail
ballots because of inconsequential errors with a handwritten date on the ballot envelope. This dating requirement is a relic of a bygone era in Pennsylvania
election law, which many decades ago, allowed absentee ballots submitted before election day, but received
after election day, to be counted. The date requirement thus allowed election officials to determine a
ballot’s timeliness. But the General Assembly
changed that rule many decades ago—ballots received
after election day are no longer valid under Pennsylvania law, and the date requirement’s original purpose is indisputably obsolete.
The date requirement had no meaningful impact
on Pennsylvania elections for many years—until the
Commonwealth made the laudable choice to authorize
no-excuse mail voting for all eligible electors. In so doing, the General Assembly simply transposed the requirements for absentee voting onto its new mail voting process, including the date requirement. The result was dramatic, with the date requirement prompting the invalidation of nearly 15,000 ballots between
the 2022 and 2024 general elections. The question presented is:
Did the Third Circuit err in concluding that, under
the Anderson-Burdick framework, the Commonwealth’s enforcement of a ballot envelope dating requirement that has disqualified thousands of otherwise valid mail votes, but which the Commonwealth’s
ii
election officials agree serves no legitimate state interest in election administration or fraud detection or
deterrence, violates the First and Fourteenth Amendments to the U.S. Constitution?
iii
RULE 29.6 DISCLOSURE STATEMENT
I, Uzoma N. Nkwonta, counsel for Respondents
and a member of the Bar of this Court, certify that
DSCC, DCCC, and AFT Pennsylvania have no parent
corporation, and that no publicly held company owns
10% or more of their stock.
iv
TABLE OF CONTENTS
QUESTION PRESENTED.......................................... i
RULE 29.6 DISCLOSURE STATEMENT ............... iii
TABLE OF AUTHORITIES.......................................vi
INTRODUCTION ........................................................1
STATEMENT ..............................................................5
I. Pennsylvania enacts the date requirement
to help officials count ballots delivered after
election day.............................................................5
II. The date requirement ensnares thousands
of Pennsylvania voters. ..........................................7
III.The Third Circuit joins several other courts
to conclude the date requirement does not
advance any state interest and enjoins
Pennsylvania from discarding ballots for
noncompliance. .......................................................9
ARGUMENT ............................................................. 10
I. The Petitions do not raise an issue of
national importance. ............................................ 10
A. The date requirement is an anachronism
with few modern analogues............................ 11
B. The Third Circuit rightly rejected the
RNC’s contrived state interests. .................... 12
C. The Third Circuit’s decision does not
threaten states’ ability to administer
elections. ......................................................... 15
v
II. The Third Circuit’s decision was correct and
fits comfortably with precedents from other
circuits. ................................................................. 16
A. Rational basis is not the correct
standard, and the Third Circuit was
right to reject it. .............................................. 17
1. There is no “threshold rule” that
precludes constitutional scrutiny of
“usual burdens” of voting. ......................... 17
2. McDonald does not immunize mail
voting regulations from AndersonBurdick review. ......................................... 20
3. Anderson-Burdick always requires
hard
judgments—weighing
the
burden of the challenged law against
the state’s asserted interests. ................... 24
B. The Third Circuit properly assessed the
date requirement’s burden. ............................ 31
III.The Pennsylvania Supreme Court’s decision
in Center for Coalfield Justice does not
warrant a GVR. .................................................... 34
IV. The Pennsylvania Supreme Court is poised
to enjoin the date requirement on state
constitutional grounds. ........................................ 36
CONCLUSION .......................................................... 37
vi
TABLE OF AUTHORITIES
Cases
Page(s)
Agency for Int’l Dev. v. All. for Open Soc'y
Int’l, Inc.,
570 U.S. 205 (2013)................................................ 21
Aikens v. California,
406 U.S. 813 (1972)................................................ 36
Anderson v. Celebrezze,
460 U.S. 780 (1983).................................... 20, 26, 32
Ariz. Democratic Party v. Hobbs,
18 F.4th 1179 (9th Cir. 2021) ................................ 32
Ball v. Chapman,
289 A.3d 1 (Pa. 2023) ......................................... 9, 13
Barr v. Galvin,
626 F.3d 99 (1st Cir. 2010) .................................... 28
Baxter v. Phila. Bd. of Elections,
329 A.3d 483, 2024 WL 4614689 (Pa.
Commw. Ct. 2024) ...................................................9
Baxter v. Phila. Bd. of Elections,
332 A.3d 1183 (Table) (Pa. 2025) .......................... 36
Bd. of Trs. of State Univ. of N.Y. v. Fox,
492 U.S. 469 (1989)................................................ 25
Brnovich v. DNC,
594 U.S. 647 (2021)................................................ 19
Burdick v. Takushi,
504 U.S. 428 (1992)................................ 4, 16, 20, 25
vii
Center for Coalfield Just. v. Washington Cnty.,
343 A.3d 1178 (Pa. 2025) ................................... 3, 34
Chapman v. Berks Cnty. Bd. of Elections,
No. 355 M.D. 2022, 2022 WL 4100998
(Pa. Commw. Ct. Aug. 19, 2022) ....................... 9, 14
Common Cause Indiana v. Lawson,
977 F.3d 663 (7th Cir. 2020) ........................... 23, 24
Cowen v. Sec’y of State of Ga.,
22 F.4th 1227 (11th Cir. 2022) .............................. 28
Crawford v. Marion Cnty. Election Bd.,
553 U.S. 181 (2008).................................... 18, 25, 31
Democratic Exec. Comm. of Fla. v. Lee,
915 F.3d 1312 (11th Cir. 2019).................. 19, 22, 28
Edenfield v. Fane,
507 U.S. 761 (1993)................................................ 25
Fish v. Schwab,
957 F.3d 1105 (10th Cir. 2020).............................. 33
Free Speech Coal., Inc. v. Paxton,
606 U.S. 461 (2025).......................................... 17, 25
Hill v. Stone,
421 U.S. 289 (1975)................................................ 21
In re Canvass of Absentee & Mail-in Ballots of
Nov. 3, 2020 Gen. Election,
241 A.3d 1058 (2020) ...............................................8
In re Luzerne Cnty. Return Bd.,
290 A.2d 108 (Pa. 1972) ...........................................6
Joseph v. United States,
574 U.S. 1038 (2014).............................................. 30
viii
Kramer v. Union Free Sch. Dist. No. 15,
395 U.S. 621 (1969)................................................ 21
La Union del Pueblo Entero v. Abbott,
151 F.4th 273 (5th Cir. 2025) ................................ 19
Lawrence v. Chater,
516 U.S. 163 (1996).......................................... 34, 35
Libertarian Party of Va. v. Alcorn,
826 F.3d 708 (4th Cir. 2016) ................................. 28
Luft v. Evers,
963 F.3d 665 (7th Cir. 2020) ................................. 27
Marcellus v. Va. State Bd. of Elections,
849 F.3d 169 (4th Cir. 2017) ................................. 27
Mays v. LaRose,
951 F.3d 775 (6th Cir. 2020) ................................. 29
Mazo v. N.J. Sec’y of State,
54 F.4th 124 (3d Cir. 2022) ................................... 19
McCormick for U.S. Senate v. Chapman,
No. 286 M.D. 2022, 2022 WL 2900112
(Pa. Commw. Ct. June 2, 2022) ............................. 14
McDonald v. Bd. of Election Comm'rs of Chi.,
394 U.S. 802 (1969).......................................... 20, 21
Meyer v. Grant,
486 U.S. 414 (1988)................................................ 24
Migliori v. Cohen,
36 F.4th 153 (3d Cir. 2022) .....................................9
Ne. Ohio Coal. for the Homeless v. Husted,
837 F.3d 612 (6th Cir. 2016) ................................. 19
ix
New Ga. Project v. Raffensperger,
976 F.3d 1278 (11th Cir. 2020).............................. 33
O’Brien v. Skinner,
414 U.S. 524 (1974)................................................ 24
Obama for Am. v. Husted,
697 F.3d 423 (6th Cir. 2012) ..................... 22, 29, 33
Org. for Black Struggle v. Ashcroft,
978 F.3d 603 (8th Cir. 2020) ................................. 32
Pa. NAACP v. Sec’y Commw. of Pa.,
97 F.4th 120 (3d Cir. 2024) .....................................9
Pisano v. Strach,
743 F.3d 927 (4th Cir. 2014) ........................... 19, 28
Polelle v. Fla. Sec’y of State,
131 F.4th 1201 (11th Cir. 2025) ............................ 28
Price v. New York State Bd. of Elections,
540 F.3d 101 (2d Cir. 2008) ....................... 19, 22, 27
Richardson v. Tex. Sec’y of State,
978 F.3d 220 (5th Cir. 2020) ................................. 32
Short v. Brown,
893 F.3d 671 (9th Cir. 2018) ................................. 22
Tedards v. Ducey,
951 F.3d 1041 (9th Cir. 2020) ......................... 19, 26
Tex. Democratic Party v. Abbott,
961 F.3d 389 (5th Cir. 2020) ................................. 22
Tex. Democratic Party v. Abbott,
978 F.3d 168 (5th Cir. 2020) ................................. 22
x
Tex. League of United Latin Am. Citizens v.
Hughs,
978 F.3d 136 (5th Cir. 2020) ................................. 22
Timmons v. Twin Cities Area New Party,
520 U.S. 351 (1997)................................................ 26
Tully v. Okeson,
977 F.3d 608 (7th Cir. 2020) ................................. 22
Tully v. Okeson,
78 F.4th 377 (7th Cir. 2023) ............................ 22, 23
Order, United States v. Paxton,
No. 23-50885 (5th Cir. Dec. 15, 2023) ................... 22
Vote.org v. Callanen,
39 F.4th 297 (5th Cir. 2022) ............................ 19, 28
Statutes
25 P.S. § 3146.6(a)..................................................... 1, 5, 6
25 P.S. § 3146.8(g) ..............................................................7
25 P.S. § 3150.16(a) ...................................................... 1, 6
Act of Dec. 11, 1968, P.L. 1183, No. 375, § 8 ................6
Act of Mar. 9, 1945, P.L. 29, No. 17, § 10............... 5, 11
Act of Oct. 31, 2019, P.L. 552, No. 77 ............................6
Other Authorities
Stephen M. Shapiro, et al., Supreme Court
Practice (10th ed. 2013) ............................................. 30
1
INTRODUCTION
This case is a stark outlier, though not in the way
Petitioners suggest. It involves a handwritten date requirement enacted in the 1940s, at a time when Pennsylvania accepted absentee ballots that arrived well
after election day. The date’s sole purpose was to ensure that election officials count only those late arriving ballots that were completed on or before election
day.
But that process is now obsolete because Pennsylvania has since chosen a different method for ensuring ballot timeliness: now, all absentee ballots must
be received by election day, and officials must confirm
receipt (and timeliness) by scanning the bar code on
the ballot envelope into the Statewide Uniform Registry of Electors (“SURE”). Despite these advances, the
date requirement lingered in Pennsylvania’s Election
Code, little-noticed until 2019. That year, the General
Assembly enacted Act 77, which permitted all eligible
voters to vote by mail, and enacted statutory text identical to Pennsylvania’s existing procedures for absentee voting, including the date requirement. Compare
25 P.S. § 3150.16(a), with 25 P.S. § 3146.6(a). With
this change, a forgotten artifact turned into a trap for
voters who vote by mail and resulted in the rejection
of more than 10,000 ballots in 2022 alone.
Pennsylvania’s election officials have been unable
to articulate a coherent state interest in a requirement that has not served its intended purpose for over
half a century yet disenfranchises thousands. Secretaries of the Commonwealth from both major political
2
parties expressly disavowed any interest in the requirement at all. Thus, to defend the requirement, the
Republican National Committee was forced to concoct
post hoc justifications the Commonwealth itself had
not previously endorsed. 1
In the end, the best the RNC could do was point to
a single example of a voter in Lancaster County submitting her deceased mother’s mail ballot, dated after
her mother had passed away. But even that is not a
case where the date requirement had any impact. The
ballot was rejected as soon as election officials received it, because the deceased mother had already
been removed from the voter rolls. Regardless, Lancaster County was not even rejecting undated or misdated ballots at the time the fraudulent ballot was received. The injunction in this case does nothing more
than resume the state of affairs in place during the
Lancaster County case: voters are instructed to date
their ballots, but counties may not reject them for innocuous errors. With the present injunction in place,
the Lancaster County case would have unfolded exactly as it did in 2022.
The other two interests the RNC came up with—
determining timeliness and the “solemnity” of the voting process—are so implausible that Petitioners
barely attempt to rehabilitate them. Receipt, not a
1 Only on appeal did the Commonwealth, through its attorney
general, intervene in this case and co-sign the RNC’s hypothesized state interests—despite the Commonwealth’s chief elections official stating unequivocally that those interests are contrived.
3
handwritten date, is how Pennsylvania officials determine ballot timeliness. And writing the date next to
one’s signature on a declaration envelope imparts no
“solemnity” beyond that of the signature or the ballot
itself.
So much for the RNC’s purported state interests.
What about the burdens on voters? Petitioners latch
on to a recent decision of the Pennsylvania Supreme
Court that, they argue, pulls out the linchpin from the
Third Circuit’s burden analysis by requiring election
officials to notify voters if their ballot is rejected for a
missing date. Center for Coalfield Justice v. Washington County, 343 A.3d 1178 (Pa. 2025). But that is not
what Coalfield Justice says. It merely holds that if
county election officials conduct a pre-election day
“preliminary” review of mail ballots—something the
Pennsylvania election code does not require—and if
officials thereby become aware of facial deficiencies,
then they may not send the voter misleading notifications suggesting the ballot will be counted. That is all.
It does not require counties to conduct such a review
or provide such notices, let alone guarantee an opportunity to cure. The Third Circuit knew and understood
this—Coalfield Justice was decided while petitions for
panel and en banc rehearing were pending, and a majority of the en banc court, including the original
panel, saw no reason to disturb the panel’s reasoning.
Unable to assail the Third Circuit’s balancing of
the interests and burdens, Petitioners try another
tack: the courts below, they argue, should not have engaged in Anderson-Burdick balancing at all, and, at
most, should have applied rational basis review. The
4
theories Petitioners advance in support of this argument are irreconcilable with this Court’s precedents,
and their attempt to gin up circuit splits distorts—and
sometimes ignores—circuit precedent.
First, there is no threshold rule exempting the
“usual burdens of voting” from Anderson-Burdick
scrutiny. This Court plainly said otherwise in Crawford v. Marion County—in both the plurality opinion
and Justice Scalia’s concurring opinion. Unsurprisingly, then, no Circuit has adopted Petitioners’ view.
Second, no circuit has held that this Court’s decision in McDonald v. Board of Election Commissioners
of Chicago categorically exempts mail ballot regulations from Anderson-Burdick review, and several
have held the opposite. Petitioners vastly overstate
McDonald’s reasoning: there, the Court simply held
that the plaintiffs had not marshaled sufficient evidence to prove that a failure to expand mail voting to
unsentenced inmates—individuals who were not permitted to vote absentee under state law—violated
their constitutional right to vote. The Court did not
conclude that states are immune from constitutional
scrutiny when rejecting ballots submitted by qualified
mail voters. And the only cases Petitioners cite to suggest otherwise are no longer good law even within
those circuits.
Third, Petitioners’ plea for rational basis review
seeks to transform decades of settled precedent. Anderson-Burdick always requires carefully weighing
the burdens a law imposes—however slight—against
the state interests advanced. See Burdick v. Takushi,
504 U.S. 428, 439 (1992). No court of appeals has held
5
otherwise. RNC’s petition broadly mischaracterizes a
slew of circuit cases by plucking out isolated phrases
while ignoring those courts’ own careful weighing of
burdens and interests—including the sheer number of
voters affected—exactly as Anderson-Burdick requires.
And, finally, as a practical matter this case is a
poor vehicle for remaking the Court’s Anderson-Burdick jurisprudence. The Pennsylvania Supreme Court
is poised to decide whether the date requirement violates the Pennsylvania Constitution’s Free and Equal
Elections Clause. That case, which was argued in September 2025, could very well moot the federal issues
presented here. For all of these reasons, the Court
should deny certiorari.
STATEMENT
I.
Pennsylvania enacts the date requirement
to help officials count ballots delivered after election day.
Enacted in 1945, Pennsylvania’s requirement that
voters date their absentee ballot envelopes helped
election officials determine whether the ballot was
submitted on time. That was necessary because, under Pennsylvania law at the time, absentee ballots
were counted even if received after election day, so
long as they were mailed before that day. See Act of
Mar. 9, 1945, P.L. 29, No. 17, § 10 (amending Election
Code Section 1306, 25 P.S. § 3146.6).
But in 1968, the General Assembly changed the
law to require receipt by the Friday before election
6
day. See Act of Dec. 11, 1968, P.L. 1183, No. 375, § 8,
(amending Election Code Section 1306, 25 P.S.
§ 3146.6, and Section 1308, 25 P.S. § 3146.8). With
this change, there was no need to sort ballots using
the date marked on the ballot envelope—timeliness
was determined solely by the date of receipt. Id. Nonetheless, the date requirement remained in the Pennsylvania Election Code’s section on absentee voting.
And when the General Assembly enacted Act 77 in
2019, authorizing no-excuse mail-in voting for all
qualified voters, it simply copied many of the provisions of the already-existing absentee voting statute
without any additional analysis or explanation. As
such, Act 77 incorporated the date requirement, along
with other “requirements” that Pennsylvania courts
have long held serve no genuine purpose in election
administration, like the requirement that voters use
blue or black ink to fill out their ballot. See Act of Oct.
31, 2019, P.L. 552, No. 77; 25 P.S. § 3150.16(a); In re
Luzerne Cnty. Return Bd., 290 A.2d 108, 109 (Pa.
1972) (holding ballots cannot be disqualified for failure to use blue or black ink); see also Br. for Pa. Dep’t
of State et al. Supporting Resp’t at 17–18 (3d Cir. June
4, 2025), Dkt. No. 101 (“SOS Br.”).
Under Pennsylvania law today, a ballot is timely
only if the county election board receives it before 8
p.m. on election day. 25 P.S. §§ 3146.6(c), 3150.16(a).
To confirm timely receipt, county officials physically
date stamp each ballot return envelope when they receive it. County officials also scan a barcode that is
unique to each ballot into the statewide SURE system,
7
which records the date and time of receipt. App.17a. 2
Then, as part of the canvassing process, the county
boards set aside all ballots delivered after 8:00 p.m. on
election day, 25 P.S. § 3146.8(g)(1)(ii), as well as ballots submitted by voters who passed away before election day, id. § 3146.8(d). County officials accordingly
do not rely on the handwritten declaration date to determine whether a mail ballot is (a) timely or (b)
fraudulent.
Two consecutive Secretaries of the Commonwealth—one Democrat, one Republican—have agreed
that there is “no reason to reject ballots for declaration-date errors or omissions.” SOS Br. at 2; see also
App.118a n.9 (D. Ct. Mem. Op.) (quoting previous Secretary asserting the same). As the current Secretary
has argued, “no election official today uses the handwritten date for any purpose other than to exclude the
votes of eligible voters.” SOS Br. at 8. To the contrary,
“requiring election officials to cancel ballots for declaration-date errors undermines the orderly administration of Pennsylvania elections.” Id. at 2.
II.
The date requirement ensnares thousands
of Pennsylvania voters.
Although the date requirement has not served any
election administration function for decades, election
officials have discarded tens of thousands of otherwise
lawful and timely mail ballots because of missing or
2 For ease of reference, and unless otherwise noted, “App.” refers
to the Appendix filed by the RNC Petitioners on Docket No. 25962.
8
superficially defective handwritten dates. That includes over 10,000 voters in the 2022 general election
alone—the first federal general election after the General Assembly enacted no-excuse mail voting where
counties were uniformly required to disqualify mail
ballots based on the date requirement. 3 See App.19a;
see also Suppl. App. of Pls.-Appellees Vol. I at 24 ¶ 10,
No. 25-1644 (3d Cir. June 4, 2025), Dkt. No. 96
(“CA3.Supp.App.Vol.I.”). And even after the Secretary’s office reformatted the ballot envelope to help
minimize errors before the 2024 election, another
4,500 ballots were still affected. App.19a.
Because Pennsylvania law neither dictates the format for the voter declaration nor offers guidance on
how to evaluate a written date for compliance, enforcement has varied arbitrarily from county to
county. For example, Westmoreland and Berks Counties rejected ballots that—obviously mistakenly—included “2021” or “2023” dates during the November
2022 general election. CA3.Supp.App.Vol.I.24, 26.
Similar typographical errors plagued ballots in several other counties, where voters had ballots rejected
for accidentally writing “2202” or “2033.” See Br. for
Pa. NAACP et al. Supporting Resp’t at 9 (3d Cir. June
9, 2025), Dkt. No. 110-1. Other counties have invalidated ballots simply because the handwritten date followed the day/month/year format instead of
month/day/year. CA3.Supp.App.Vol.I.27 ¶ 27.
3 There was no uniform rule applied in the 2020 general election.
See In re Canvass of Absentee & Mail-in Ballots of Nov. 3, 2020
Gen. Election, 241 A.3d 1058, 1079 (2020).
9
III. The Third Circuit joins several other courts
to conclude the date requirement does not
advance any state interest and enjoins
Pennsylvania from discarding ballots for
noncompliance.
Since Act 77 took effect, the date requirement has
been the subject of extensive state and federal court
litigation on various grounds. Regardless of the outcome, most courts have agreed on one thing: the date
requirement is meaningless. See, e.g., Pa. NAACP v.
Sec’y Commw. of Pa., 97 F.4th 120, 125 (3d Cir. 2024)
(date requirement “serves little apparent purpose”);
Migliori v. Cohen, 36 F.4th 153, 164 (3d Cir. 2022)
(finding handwritten date was “superfluous and
meaningless” and not used for any purpose), vacated
as moot on procedural grounds sub nom. Ritter v.
Migliori, 143 S. Ct. 297 (2022); Ball v. Chapman, 289
A.3d 1, 16 n.77 (Pa. 2023) (noting handwritten date
was not used to determine voter eligibility or timeliness, detect fraud, or for any other purpose); Baxter v.
Phila. Bd. of Elections, 329 A.3d 483, 2024 WL
4614689, at *17 (Pa. Commw. Ct. 2024) (date requirement is “virtually meaningless”), appeal pending, 332
A.3d 1183 (Pa. 2025); Chapman v. Berks Cnty. Bd. of
Elections, No. 355 M.D. 2022, 2022 WL 4100998, at
*18 (Pa. Commw. Ct. Aug. 19, 2022) (unpublished)
(finding “no factual or legal basis for concluding” that
the date requirement serves state interests), abrogated by Ball, 289 A.3d 1.
Here, the district court and the Third Circuit
joined that growing chorus. Based on clear admissions
by county officials that missing dates are “not a reason
10
to suspect fraud,” Suppl. App. of Pls.-Appellees Vol. II,
at 410–11, No. 25-1644 (3d Cir. June 13, 2025), Dkt.
No. 120 (“CA3.Supp.App.Vol.II.”), and are not used to
determine a ballot’s timeliness, id. 409, the district
court found “no evidence that the date requirement
serves any state interest.” App.117a. The Third Circuit panel unanimously affirmed. Although the Third
Circuit determined that the date requirement imposed a minimal burden on Pennsylvania voters,
App.34a, the court found that this burden could not be
justified by Petitioners’ unsubstantiated appeals to
solemnity and fraud prevention, as neither interest is
reasonably advanced by merely dating a declaration
on a return envelope. App.43a–44a. As the Third Circuit panel acknowledged, every state election official
who participated in the appeal expressly disclaimed
any interest in the date requirement. App.48a; see
also SOS Br. 8–14; Br. for Philadelphia Cnty. et al.
Supporting Resp’t at 7–17 (3d Cir. June 4, 2025), Dkt.
No. 91. The en banc court denied rehearing shortly
thereafter. App.67a.
ARGUMENT
I.
The Petitions do not raise an issue of national importance.
This Court’s review is reserved for cases of national importance, with wide-reaching impacts. This
is not that case. The date requirement’s unique history and the uniform position of the Commonwealth’s
election officials in this appeal make the date requirement a true outlier in Anderson-Burdick world. Peti-
11
tioners’ doomsaying about freewheeling judicial superintendence of state election rules simply bears no
relation to this case.
A.
The date requirement is an anachronism with few modern analogues.
The date requirement is not an election integrity
measure, nor does it play any role whatsoever in the
administration of elections in Pennsylvania. As explained, the General Assembly first required absentee
voters to include a handwritten date on ballot envelopes in 1945 because the Commonwealth accepted
absentee ballots after election day so long as they were
mailed on time. See Act of Mar. 9, 1945, P.L. 29, No.
17, § 10. The handwritten date thus served the critical
function of verifying a ballot was timely submitted
and could thus be counted. This utility evaporated,
however, when the General Assembly changed the
rule to disqualify ballots received after election day,
and that has remained true for more than 50 years.
Now, a ballot’s timeliness is determined when county
officials scan mail ballots into the Commonwealth’s
SURE system. The handwritten date is obsolete.
Election officials have largely reached the same
conclusion—indeed, none of them defended the date
requirement on appeal, and it’s easy to see why. Ballots that counties indisputably receive on time before
the election, but include the wrong year, e.g.,
CA3.Supp.App.Vol.I.26 ¶¶ 21–22, or that list the day
before the month, e.g., id. at 25–27 ¶¶ 18, 25, 27, do
not threaten any valid interest in election administration. Furthermore, the injunction now in place
changes nothing about the format of ballot envelopes:
12
mail-ballot declarations still instruct voters to provide
the date, and most voters will complete it without issue. All that will change is that voters who do make
innocent mistakes in writing or omitting the date will
not have their ballots discarded for that reason.
B.
The Third Circuit rightly rejected the
RNC’s contrived state interests.
With the date requirement’s origins in mind, it is
hardly surprising that courts have struggled throughout several bouts of litigation to identify a coherent
justification for disqualifying ballots for dating errors.
See Statement § III. The RNC—and, on appeal, the
Attorney General—manufactured three post-hoc interests in the date requirement. Each is meritless, and
the Third Circuit was right to recognize as much in
applying the Anderson-Burdick framework. The utter
dearth of evidence or reasoned argument in support of
any state interest in the date requirement solidifies
its outlier status.
1. The Third Circuit credited ample record evidence, including admissions from the counties that
participated in the district court proceedings, that
“county election boards did not view the absence of a
date on a return envelope’s declaration or the presence of an incorrect date as a reason to suspect voter
fraud.” See App.48a; see also CA3.Supp.App.Vol.I.155;
see also id. at 213–16 ¶¶ 65–75 (Lancaster BOE admitting date serves no fraud prevention interests); id.
at 310–12 ¶¶ 65–75 (same for Berks BOE); id. at 180–
81, 184–85 (Westmoreland BOE testifying similarly).
The court further noted that “the only Pennsylvania
13
entities participating in this appeal that engage in administration of the Commonwealth’s elections” each
conceded, “in no uncertain terms, that the date requirement does not meaningfully further the Commonwealth’s legitimate interest in detecting voter
fraud.” App.48a. All 67 counties also admitted they
had not identified, raised, or been made aware of any
credible concern regarding fraud with respect to the
date requirement. CA3.Supp.App.Vol.II.408–12; see
also CA3.Supp.App.Vol.I.215 ¶ 72.
Petitioners offer a single instance in which they
claim the date requirement was instrumental in prosecuting (but not detecting) a voter fraud suspect. That
is a stretch. In Commonwealth v. Mihaliak, a Lancaster County voter allegedly completed and dated her
recently deceased mother’s mail ballot for the 2022
primary election after the mother had died. RNC Pet.
28–29. But as the Lancaster County Board of Elections admitted, CA3.Supp.App.Vol.II.410, and Petitioners concede (at 28), the envelope’s date played no
role in detecting the fraud: The perpetrator’s mother
had already been removed from the voter rolls before
the ballot was received, prompting county officials to
immediately set it aside. CA3.Supp.App.Vol.I.215–16
¶¶ 73–75. The Lancaster County registrar reported
the incident to the police, App. of Appellants Vol. II at
227, No. 25-1633 (3d Cir. May 6, 2025), Dkt. No. 76-1
(“RNC.CA3.App.Vol.II”), so “an investigation would
have followed no matter what was written on the return envelope.” Ball, 289 A.3d at 16 n.77.
Petitioners cannot dispute that the handwritten
date on the ballot envelope in Mihaliak did nothing to
14
prevent fraudulent votes from being counted. See id.
Instead, they argue that it had independent evidentiary value to investigate and prosecute the daughter’s fraudulent conduct. RNC Pet. 29. But that is pure
speculation: Mihaliak promptly confessed to investigators that she had signed the ballot for her mother
after she died, so Petitioners’ argument about the evidentiary value of the handwritten date in that case is
mere conjecture, unsupported by any evidence. See
RNC.CA3.App.Vol.II.227.
In any event, the Third Circuit’s decision does not
require the Commonwealth to remove the “date” line
from ballot envelopes. It merely prevents county
boards from disqualifying otherwise valid mail ballots
for noncompliant dates. So the date requirement’s
supposed evidentiary function remains intact. The
Mihaliak case itself proves as much: in that election
(the May 2022 primary), Lancaster County was ordered by a court to count mail ballots missing handwritten dates on the ballot envelope—much as the injunction here orders counties to do. Chapman, 2022
WL 4100998, at *29–30; see also McCormick for U.S.
Senate v. Chapman, No. 286 M.D. 2022, 2022 WL
2900112 (Pa. Commw. Ct. June 2, 2022).
2. Petitioners barely bother to defend their remaining interests in election administration and solemnity. Based on the record before it, the Third Circuit
properly concluded that the date requirement does
nothing to facilitate orderly election administration:
“If anything, requiring county election boards to check
the date field on return envelopes seems to hamper
efficiency by foisting an additional responsibility on
15
the boards for no apparent purpose.” App.44a (collecting evidence). Even the Commonwealth has abandoned any argument otherwise. Commw. Pet. 23 n.12.
Petitioners also contend that requiring voters to
date their ballot envelopes promotes “solemnity.” But
even assuming this is a legitimate reason to burden
the right to vote, the Third Circuit’s decision does not
threaten that interest either. Once again, the decision
below does not require Pennsylvania to remove the
date line from mail ballot declarations. Neither Petitioner has attempted to explain how discarding ballots for innocuous mistakes advances any solemnity
interest that is not already satisfied by asking voters
to sign and date the declaration in the first place.
C.
The Third Circuit’s decision does not
threaten states’ ability to administer
elections.
Anderson-Burdick has been the law of the land for
over three decades. In that time, courts have applied
the framework to all manner of state election laws—
including those governing absentee and mail voting,
many of which courts ultimately concluded were minimally burdensome—and have invalidated voting-process regulations very infrequently.
There is an obvious reason that decisions invalidating voting-process regulations under AndersonBurdick are uncommon: if the state has a legitimate
reason for passing a minimally burdensome regulation, courts usually will not disturb it. Nothing about
the district court’s ruling or the Third Circuit’s deci-
16
sion displaces Burdick’s guidance that a “State’s important regulatory interests are generally sufficient to
justify” a minimally burdensome restriction on the
right to vote. Burdick, 504 U.S. at 428 (emphasis
added). The many idiosyncrasies of this case simply
make it the rare exception to that general rule, where
the state has decisively failed to offer any “important
regulatory interest” that would be advanced by invalidating ballots for dating errors—and election officials’ admissions deny the interests the RNC and Attorney General advance.
II.
The Third Circuit’s decision was correct
and fits comfortably with precedents from
other circuits.
Unable to offer any coherent defense of the date
requirement’s role in Pennsylvania’s elections, which
the Commonwealth’s election officials acknowledged
has no purpose, Petitioners manufacture division
among the circuits over how to apply the AndersonBurdick framework. The RNC insists the lower courts
“are in disarray,” RNC Pet. 18, but the decisions they
cite cannot bear the weight of their hyperbole. Lower
courts have successfully navigated the Anderson-Burdick framework for decades, and the Third Circuit’s
decision falls comfortably in line with precedent from
its sister circuits and this Court. The Court’s intervention is unwarranted.
17
A.
Rational basis is not the correct
standard, and the Third Circuit was
right to reject it.
The bottom line spanning most of Petitioners’ arguments is that the Third Circuit should have applied
rational basis review when it analyzed the date requirement, for one of three reasons. First, Petitioners
advance a “threshold rule” that precludes any constitutional scrutiny here. Second, they contend that this
Court’s decision in McDonald v. Board of Election
Commissioners of Chicago requires the Court to apply
rational basis review instead of Anderson-Burdick.
And third, they contend that, even if Anderson and
Burdick govern, rational basis is the right test anyway. Each argument is wrong, as every circuit to address each of these issues has said.
1.
There is no “threshold rule”
that precludes constitutional
scrutiny of “usual burdens” of
voting.
Petitioners first advance a heretofore unheard of
“threshold rule” that voting regulations that impose
“‘the usual burdens of voting’ do not even implicate the
Constitution’s protections of the right to vote.” RNC
Pet. 25. “Had the panel applied that rule,” Petitioners
contend, “it would have dismissed, rather than upheld, Plaintiffs-Respondents’ constitutional claim,” id.
at 26, presumably under rational basis review, see
Free Speech Coal., Inc. v. Paxton, 606 U.S. 461, 471
(2025) (“[R]ational-basis review” is “the minimum constitutional standard that all legislation must satisfy.”).
18
The “rule” Petitioners invoke does not exist—in
fact, precedent forecloses it. In Crawford—the very
decision from which Petitioners derive the so-called
rule they cite—this Court applied the Anderson-Burdick framework to review Indiana’s voter identification law. The plurality opinion explained that because
there is no “litmus test for measuring the severity of a
burden that a state law imposes on [voters],” any burden “must be justified by relevant and legitimate state
interests” “[h]owever slight that burden may appear.”
Crawford v. Marion County Election Board, 553 U.S.
181, 191 (2008) (plurality op.) (emphasis added). Far
from “confirm[ing] that . . . usual burdens do not implicate the right to vote,” the plurality reiterated that
Anderson-Burdick offers the correct starting point for
assessing any burden on the right to vote—even
“usual” ones.
Justice Scalia’s concurring opinion does not support Petitioners’ view, either. Justice Scalia acknowledged that Indiana’s law could be allowed only because “the burden at issue [was] minimal and justified.” Id. at 204 (Scalia, J., concurring) (emphasis
added). He noted expressly that, “[t]o evaluate a law
respecting the right to vote,” including laws regulating “the voting process,” courts “use the approach set
out in Burdick,” which calls for “application of a deferential,” but not nonexistent, “standard for nonsevere, nondiscriminatory restrictions.” Id. In short, a
majority of the Court in Crawford agreed that even
minimally burdensome laws—those imposing only the
“usual burdens of voting”—are still evaluated within
the Anderson-Burdick framework.
19
Consistent with Crawford, circuit courts routinely
apply the Anderson-Burdick framework to regulations
of the voting process, even where they ultimately
judge the relevant burden to be minimal. E.g., Price v.
New York State Bd. of Elections, 540 F.3d 101, 112 (2d
Cir. 2008); Mazo v. N.J. Sec’y of State, 54 F.4th 124,
139 & n.11 (3d Cir. 2022); Pisano v. Strach, 743 F.3d
927, 935 (4th Cir. 2014); Vote.org v. Callanen, 39 F.4th
297, 307–08 (5th Cir. 2022); Ne. Ohio Coal. for the
Homeless v. Husted, 837 F.3d 612, 631–32 (6th Cir.
2016); Tedards v. Ducey, 951 F.3d 1041, 1066 (9th Cir.
2020); Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d
1312, 1318–19 (11th Cir. 2019).
Petitioners have not identified even one case in the
43 years since Anderson that applied the purported
“rule” it faults the Third Circuit for missing here.
Brnovich v. DNC, 594 U.S. 647 (2021), involved a
claim under Section 2 of the Voting Rights Act; it did
not address Anderson-Burdick review at all. The same
is true of the Fifth Circuit’s decision in La Union del
Pueblo Entero v. Abbott, 151 F.4th 273 (5th Cir. 2025),
which likewise did not even mention the AndersonBurdick framework.
Were it not enough that Petitioners’ “rule” is unmoored from precedent, it is also standardless. Petitioners offer no way to distinguish “usual” burdens on
the right to vote from the “unusual” ones. The Court
should not entertain this approach. Anderson and
Burdick strike the appropriate balance between
states’ authority to set the rules governing elections
and citizens’ ability to exercise their right to vote without facing arbitrary barriers to the franchise. Indeed,
20
respect for states’ “active role in structuring elections,” Burdick, 504 U.S. at 433, and the recognition
that such regulations will “inevitably affect, at least
to some degree,” the right to vote, Anderson v. Celebrezze, 460 U.S. 780, 788 (1983), is the very foundation
of the framework itself. Courts have performed the
fact-intensive, case-specific Anderson-Burdick test for
decades, and the judicially wrought chaos Petitioners
predict has never come to pass. There is simply no
need to reinvent the wheel now.
2.
McDonald does not immunize
mail voting regulations from
Anderson-Burdick review.
Petitioners next argue that McDonald v. Board of
Election Commissioners of Chicago, 394 U.S. 802, 807
(1969), immunizes all mail-voting regulations from
constitutional scrutiny. It does not, and no court has
so held. The Fifth and Seventh Circuit decisions that
Petitioners cite are not good law even within those circuits. But this case would be a poor vehicle to resolve
any circuit split anyway because even Petitioners’
reading of McDonald would not preclude AndersonBurdick review of the date requirement.
1. To start, Petitioners miss the point of McDonald. McDonald’s holding that the “‘right to vote’ do[es]
not encompass ‘a claimed right to receive absentee
ballots,’” RNC Pet. 18 (quoting McDonald, 394 U.S. at
807), does not—as Petitioners would have it—exempt
every regulation of mail voting from Anderson-Burdick review. The McDonald plaintiffs alleged a constitutional right to receive mail ballots that Illinois law
did not permit at that time—in other words, to expand
21
methods of voting the state’s legislature had not authorized. See Kramer v. Union Free Sch. Dist. No. 15,
395 U.S. 621, 626 n.6 (1969) (“at issue [in McDonald]
was not a claimed right to vote but a claimed right to
an absentee ballot”); Hill v. Stone, 421 U.S. 289, 300
n.9 (1975) (“In McDonald . . . the only issue before the
Court was whether pretrial detainees in Illinois jails
were unconstitutionally denied absentee ballots.”).
This case involves no such claim. It did not require the
courts to expand mail balloting beyond what the General Assembly has authorized.
Once a state has chosen to allow mail voting, inducing its residents to rely on mail ballots to exercise
their rights, it is not then free to arbitrarily burden
that process simply because electors could have—but
did not—vote another way. App.30a. This Court, in
closely analogous contexts, has recognized that once a
state extends a benefit, it must do so consistent with
the Constitution—even if it was not constitutionally
required to extend the benefit in the first place. See,
e.g., App.30a (citing Kramer, 395 U.S. at 627 (popular
election of school board members); Meyer v. Grant, 486
U.S. 414, 424 (1988) (ballot initiatives)); see also
Agency for Int’l Dev. v. Alliance for Open Society Int’l,
Inc., 570 U.S. 205, 214 (2013) (“[T]he Government
may not deny a benefit to a person on a basis that infringes his constitutionally protected freedom of
speech even if he has no entitlement to that benefit.”
(citation omitted)); cf. McDonald, 394 U.S. at 807 (acknowledging that once a state grants the franchise, it
may not impose conditions that violate constitutional
rights). Petitioners do not acknowledge this authority.
22
For these reasons, it is not surprising that many
circuits have applied the Anderson-Burdick framework to mail- and absentee-voting regulations irrespective of McDonald. See, e.g., Democratic Exec.
Comm. of Fla., 915 F.3d at 1318–19; Short v. Brown,
893 F.3d 671, 676–79 (9th Cir. 2018); Obama for Am.
v. Husted, 697 F.3d 423, 429 (6th Cir. 2012); Price, 540
F.3d at 107–12.
2. The cases Petitioners cite from the Fifth and
Seventh Circuits are not binding authority even
within those circuits. Texas Democratic Party v. Abbott (TDP I), 961 F.3d 389, 394 (5th Cir. 2020), is a
stay panel decision, and in a published merits decision
in the same case, the Fifth Circuit expressly refused
to hold that McDonald precludes constitutional scrutiny of mail-voting restrictions. Tex. Democratic Party
v. Abbott, 978 F.3d 168, 193–94 (5th Cir. 2020). 4
In the Seventh Circuit, Tully v. Okeson, 977 F.3d
608 (7th Cir. 2020) (“Tully I”), was likewise a ruling
on a preliminary injunction that the court later refused to treat even as “law of the case,” Tully v. Okeson, 78 F.4th 377, 380–82 (7th Cir. 2023) (“Tully II”).
In Tully II, the Seventh Circuit repudiated Tully I,
concluding it was not “bound by [Tully I’s] reasoning.”
4 The other stay panel opinions Petitioners cite are no more per-
suasive than TDP I. Texas League of United Latin Am. Citizens
v. Hughs, 978 F.3d 136 (5th Cir. 2020), involved an early-voting
regulation, not mail voting, and it expressly did not decide
whether McDonald applied. Id. at 144 n.6, 146 n.8. And United
States v. Paxton was not even an Anderson-Burdick case. See Order, United States v. Paxton, No. 23-50885 (5th Cir. Dec. 15,
2023), Dkt. No. 80.
23
Id. at 379. The court explained its resolution of the
“point of law” at issue in Tully I was “animated by
. . . weighty concerns” about the risks of changing voting rules on the eve of the 2020 election. Id. at 381–
82. For that reason, Common Cause Indiana v. Lawson, 977 F.3d 663 (7th Cir. 2020)—which treated Tully
I as binding for its “hold[ing]” that mail-ballot regulations did not implicate the right to vote—likewise has
very limited precedential value. Id. at 664.
Even if authoritative, TDP I and Tully I are not
like this case. Both cases reflect only the distinction
described above, between claims seeking to expand
mail-voting access versus those regulating existing
procedures. Both arose during the COVID-19 pandemic and, like in McDonald, the plaintiffs sought to
expand access to absentee voting to groups the state
legislature had not authorized. This case, however, involves the rights of voters who indisputably are entitled to vote by mail under Pennsylvania law, and have
cast their ballots in reliance on that promise.
Thus, this case would be a poor vehicle to address
the legal question Petitioners raise, even if there were
a real circuit split. Even Petitioners agree that
McDonald, under any court’s reading, contemplates
constitutional scrutiny of mail-voting regulations if
voters are “‘absolutely prohibited from exercising the
franchise’ through any other method—including inperson voting.” RNC Pet. 18 (quoting McDonald, 394
U.S. at 809). Indeed, this Court later explained that
the “disposition of the claims in McDonald rested on
failure of proof” that the challenged statute prohibited
the plaintiffs from voting, rather than on some broad
24
exemption of absentee voting from the protections of
federal law. O’Brien v. Skinner, 414 U.S. 524, 529
(1974). When plaintiffs presented evidence of a burden on their right to vote in a later case challenging
an absentee voting restriction, this Court held the restriction unconstitutional. See id. at 530.
The same is true here. Any voter who does not receive notice of a dating error with sufficient time to
vote in person—either because their mail ballot arrived shortly before the deadline, or county officials
did not review the ballot envelope for defects before
election day—will be prohibited from exercising the
franchise through any other method. See App.35a–
36a. That also distinguishes this case from the Seventh Circuit’s decision in Common Cause Indiana v.
Lawson, where “[t]he district court did not find that
anyone entitled to vote in Indiana would be unable to
cast an effective ballot by acting ahead of the deadline
or, if necessary, voting in person on November 3.” 977
F.3d at 665.
3.
Anderson-Burdick always requires hard judgments—weighing the burden of the challenged law against the state’s
asserted interests.
Finally, Petitioners insist that the Third Circuit
should have applied rational basis review because the
date requirement is only minimally burdensome. But
circuit courts have uniformly refused to adopt this approach because rational basis review is never the appropriate standard when Anderson-Burdick’s balancing test is triggered. Again, Petitioners fail to identify
25
a divide among lower courts that warrants this
Court’s attention.
1. This Court’s precedent straightforwardly requires something more than rational basis review
when a law even minimally burdens the right to vote.
Under traditional rational basis review, “a law will be
upheld ‘if there is any reasonably conceivable state of
facts that could provide a rational basis’ for its enactment.” Free Speech Coal., 606 U.S. at 471 (quoting
FCC v. Beach Comms., Inc., 508 U.S. 307, 313 (1993)).
And courts may “supplant the precise interests put
forward by the State with other suppositions.” Edenfield v. Fane, 507 U.S. 761, 768 (1993). There is also
no balancing involved—rather, “it suffices if the law
could be thought to further a legitimate governmental
goal, without reference to whether it does so at an inordinate cost.” Bd. of Trs. of State Univ. of N.Y. v. Fox,
492 U.S. 469, 480 (1989).
Anderson-Burdick necessarily requires more. In
Burdick, the Court distinguished traditional rational
basis in at least two ways by instructing courts to
“weigh” an election regulation’s burdens against “the
precise interests put forward by the state.” 504 U.S. at
434 (emphasis added). Crawford reinforces this approach, explaining that “[h]owever slight [a] burden
may appear . . . it must be justified by relevant and
legitimate state interests.” 553 U.S. at 191 (emphasis
added); see also id. at 204 (Scalia, J., concurring) (similarly acknowledging that Indiana’s voter ID law could
be allowed only because “the burden at issue [was]
minimal and justified” (emphasis added)).
26
To be sure, Anderson-Burdick does not “require
elaborate, empirical verification of the weightiness of
the State’s asserted justifications.” Timmons v. Twin
Cities Area New Party, 520 U.S. 351, 358 (1997). But
nothing in Timmons prohibits courts from crediting
unrebutted record evidence—including admissions
from all 67 county election administrators,
CA3.Supp.App.Vol.II.404–05, 409–11—that the challenged regulation does not advance any state interest.
This record evidence simply informed the “hard judgment” Anderson-Burdick instructed the Third Circuit
to make. See Anderson, 460 U.S. at 789–90. For that
reason, Petitioners’ repeated objection that the Third
Circuit held them to an improper standard of proof to
substantiate the interests they advanced is misplaced.
See, e.g., RNC Pet. 28. The record was developed and
the evidence was clear—it just contradicted Petitioners’ position: the Commonwealth’s election officials
admitted the date requirement does not advance any
election administration or fraud detection interest.
See supra Arg. § 1(B)(1). The Third Circuit was right
not to ignore the record.
2. The Third Circuit had the right measure of this
Court’s precedent. It clearly articulated the key distinctions between rational basis review and AndersonBurdick, explaining that “rational basis review . . . does not call for the balancing that lies at the
core of Anderson-Burdick.” App.41a. In so doing, it
joined the Ninth and Second Circuits, both of which
have squarely rejected identical arguments that Anderson-Burdick review of minimally burdensome regulations mirrors rational basis. Tedards, 951 F.3d at
27
1066 (“[T]he burdening of the right to vote always triggers a higher level of scrutiny than rational basis review.”); Price, 540 F.3d at 108 (rejecting state defendants’ argument “that pure rational basis review
should be utilized” when reviewing an election regulation). As far as Respondents are aware, only these
three circuits have squarely addressed the relationship between Anderson-Burdick review and rational
basis—and not one has dubbed them equal.
Petitioners contend that the First, Fourth, Fifth,
Sixth, Eighth, and Eleventh Circuits all agree that
minimally burdensome laws receive rational basis review. 5 They are wrong on all counts.
For one, the First, Fourth, Fifth, and Eleventh Circuit cases Petitioners cite do not apply rational basis.
Each court carefully assessed the state’s asserted interests and weighed them against burdens on the
right to vote (which, in each case, were deemed minimal). See, e.g., Marcellus v. Va. State Bd. of Elections,
849 F.3d 169, 180 (4th Cir. 2017) (upholding challenged law only after determining that its “minimal”
burdens were “outweighed by the important state interests advanced by the law”); Libertarian Party of Va.
5 The Attorney General also cites the Seventh Circuit’s decision
in Luft v. Evers, 963 F.3d 665 (7th Cir. 2020). But the section of
the decision they cite addresses a disparate treatment claim, and
it thus does not involve the Anderson-Burdick framework at all.
See id. at 677; Commw. Pet. 21. Additionally, the Seventh Circuit
found that a provision of Wisconsin law allowing voters to use
unexpired student IDs at the polls—but not expired student
IDs—was unconstitutional even under rational basis review.
28
v. Alcorn, 826 F.3d 708, 716 (4th Cir. 2016) (explaining Anderson-Burdick review “requires ‘hard judgments’—it does not dictate ‘automatic’ results” (quoting Anderson, 460 U.S. at 789)); Vote.org, 39 F.4th at
308 (reciting the Anderson-Burdick “balancing test”
as the governing framework but concluding that the
challenged requirement advanced two state interests
and justified a burden it characterized as “very
slight”); Polelle v. Fla. Sec’y of State, 131 F.4th 1201,
1240 (11th Cir. 2025) (“Florida’s interests . . . outweigh the minimal burdens that Florida’s closed-primary system imposes on Polelle’s First and Fourteenth Amendment rights.”); Cowen v. Sec’y of State of
Ga., 22 F.4th 1227, 1236 (11th Cir. 2022) (“[T]he Secretary’s stated interest sufficiently justifies this distinction.”); Barr v. Galvin, 626 F.3d 99, 111 (1st Cir.
2010) (weighing the “legitimate interest” the Secretary advanced against a “modest burden” on ballot access); see also Democratic Exec. Comm. of Fla., 915
F.3d at 1318–19 (“[E]ven when a law imposes only a
slight burden on the right to vote, relevant and legitimate interests of sufficient weight still must justify
that burden.”); Pisano, 743 F.3d at 935 (even where
plaintiffs did not show that the challenged regulations
“burden[ed] them in any meaningful way,” the court
must “balance the character and magnitude of the
burdens imposed against the extent to which the regulations advance the state’s interests” and the “asserted regulatory interests” must be “sufficiently
weighty to justify the limitation imposed” (quotation
omitted)). Using generalized descriptors like “rational” or “reasonable” to describe the state’s interest
does not mean that these courts eschewed Anderson-
29
Burdick in favor of rational basis. Whatever their precise terminology, each court performed the careful balancing Anderson-Burdick requires.
As for the Sixth and the Eighth Circuits, Petitioners at most identify intra-circuit splits. Petitioners cite
dicta from Mays v. LaRose, 951 F.3d 775 (6th Cir.
2020)—a case in which the court found a more-thanminimal burden and did not apply rational basis at
all. Id. at 786; see RNC Pet. 21. But in Obama for
America v. Husted, the same court made clear its holding that “a straightforward rational basis standard of
review should be used” only when “a plaintiff alleges
only that a state treated him or her differently than
similarly situated voters, without a corresponding
burden on the fundamental right to vote,” 697 F.3d at
429 (emphasis added). Obama for America thus
makes clear that even minimally burdensome laws receive Anderson-Burdick review, and to the extent
dicta in Mayes suggests otherwise, that is a matter for
the Sixth Circuit to resolve internally.
Petitioners themselves illustrate that the Eighth
Circuit is internally divided on whether rational basis
applies to minimally burdensome laws, with each set
of Petitioners citing different cases to place the circuit
on opposite sides of the “split” they describe. Compare
RNC Pet. 21 (citing Org. for Black Struggle v. Ash-
30
croft, 978 F.3d 603, 608 (8th Cir. 2020) (applying rational basis to an absentee ballot receipt deadline)), 6
with Commw. Pet. 22 (discussing SD Voice v. Noem,
60 F.4th 1071, 1075, 1080, 1082 (8th Cir. 2023) (applying Anderson-Burdick and invalidating a filing
deadline for ballot initiative petitions because the interests the state advanced did not justify the law’s
“less than severe” burdens)).
Any internal conflict within these circuits should
be resolved by those courts themselves. Stephen M.
Shapiro, et al., Supreme Court Practice 254 (10th ed.
2013) (“Ordinarily, a conflict between decisions rendered by different panels by the same court of appeals
is not a sufficient basis for granting a writ of certiorari.” (citing Davis v. United States, 417 U.S. 333, 340
(1974))); Joseph v. United States, 574 U.S. 1038, 135
S. Ct. 705, 707 (2014) (Kagan, J., concurring) (“[W]e
usually allow the courts of appeals to clean up intracircuit divisions on their own[.]”).
6 Organization for Black Struggle v. Ashcroft also suffers a fatal
flaw. Despite reciting the rule that Anderson-Burdick should
have governed the analysis, it deployed rational basis review
based on the Seventh Circuit’s analysis from Common Cause Indiana v. Lawson—which, as discussed previously, did not apply
Anderson-Burdick at all. An analytical lapse, but not one that
requires this Court’s intervention.
31
B.
The Third Circuit properly assessed
the date requirement’s burden.
Petitioners also take issue with how the Third Circuit applied the Anderson-Burdick framework. Petitioners object that the court should not have considered any “downstream consequences” when assessing
the right to vote. And to gin up yet another purported
circuit split, Petitioners contend the Third Circuit’s
decision conflicts with cases from the Fifth, Eighth,
Ninth, and Eleventh Circuits that have “refused to
consider the consequence of noncompliance when determining the challenged rule’s burden on voters.”
RNC Pet. 22–23. Again, Petitioners misrepresent
these cases, which hold only that a regulation’s burden is not automatically deemed severe when it may
result in ballots being rejected. That is irrelevant here
because the Third Circuit also did not find the date
requirement’s burden severe. There is thus no reason
for this Court to intervene.
1. This Court has specifically declined to establish
“any litmus test for measuring the severity of a burden that a state law imposes on . . . an individual
voter[.]” Crawford, 553 U.S. at 191. The Third Circuit
thus canvassed precedent and identified five “non-exhaustive considerations that bear on [the] inquiry,”
just one of which is the “impacts of the voting law[.]”
App.33a–34a. It then determined that the date requirement imposes a minimal burden on the right to
vote in part because it has disqualified thousands of
ballots in recent elections. App.34a.
That analysis comes directly from Anderson itself.
In Anderson, this Court highlighted that the deadline
32
for independent candidates to declare their candidacy
“may have [had] a substantial impact on independent-minded voters,” for it might have prevented such
voters from coalescing around an independent candidate later in the election cycle. 460 U.S. at 790. Based
on this assessment of the burden, the Court determined that “minimal” state interests could not justify
the “substantial” potential impacts on independent
voters. Id. at 790, 806.
2. The Third Circuit’s ruling that the date requirement minimally burdens the right to vote does not create a conflict with any other circuit. Not one of the
cases Petitioners cite holds that courts must ignore a
law’s impacts when assessing whether, and to what
extent, that law burdens voters. Rather, the Fifth,
Eighth, Ninth, and Eleventh Circuits have held only
that they will not deem a law severely burdensome,
thereby triggering strict scrutiny, solely because it
may prompt the state to discard ballots. Richardson
v. Tex. Sec’y of State, 978 F.3d 220, 236 n.33 (5th Cir.
2020) (“If we were to find that a burden is severe based
solely on a plaintiff’s assertion that he or she might be
disenfranchised, our Fourteenth Amendment analysis
of voting laws would risk collapsing into standing
analysis[.]” (emphasis added)); Org. for Black Struggle, 978 F.3d at 608 (“[T]he likelihood that some ballots are likely to be rejected . . . does not transform the
burden into one that is severe.” (emphasis added));
Ariz. Democratic Party v. Hobbs, 18 F.4th 1179, 1188
(9th Cir. 2021) (“every voting prerequisite would impose the same burden,” and be subject to strict scrutiny, “[i]f the burden imposed by a challenged law
33
were measured by the consequence of noncompliance”); New Ga. Project v. Raffensperger, 976 F.3d
1278, 1281 (11th Cir. 2020) (“[I]t is just not enough to
conclude that if some ballots are likely to be rejected
because of a rule, the burden on many voters will be
severe.” (emphasis added)).
The Third Circuit did not hold otherwise. It merely
recognized, as have the Sixth and Tenth Circuits, that
quantifiable evidence of widespread disenfranchisement is probative of the extent of a law’s burdens on
the right to vote. See Fish v. Schwab, 957 F.3d 1105,
1127–28 (10th Cir. 2020) (applying heightened scrutiny to Kansas’s documentary-proof-of-citizenship requirement because the “significant burden quantified
by the 31,089 voters who had their registration applications canceled or suspended requires us to increase
the ‘rigorousness of our inquiry’” (emphasis added));
Obama for Am., 697 F.3d at 431 (“Plaintiffs introduced extensive evidence that a significant number of
Ohio voters will in fact be precluded from voting without the additional three days of in-person early voting.”). If compliance with the date requirement imposed no burden at all, one would not expect thousands of Pennsylvanians to be affected. But the record
here shows that nearly 15,000 ballots have been discarded in the last two federal general elections.
App.34a. This evidence, the Third Circuit held, was
enough to show that the law was at least minimally
burdensome. As a result, the Commonwealth needed
to come forward with at least some legitimate justification for the rule—states cannot simply discard thousands of ballots for no reason at all. That holding is
perfectly in line with the unremarkable proposition,
34
endorsed by the Fifth, Eighth, Ninth, and Eleventh
Circuits, that the mere possibility of disenfranchisement is not enough to establish a severe burden on the
right to vote.
III. The Pennsylvania Supreme Court’s decision in Center for Coalfield Justice does not
warrant a GVR.
The Commonwealth alternatively asks this Court
to GVR the Third Circuit’s ruling in light of Center for
Coalfield Justice v. Washington County Board of Elections, 343 A.3d 1178 (Pa. 2025). That ask is meritless.
GVR is “potentially appropriate” only “[w]here 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, and where it appears that
such a redetermination may determine the ultimate
outcome of the litigation.” Lawrence v. Chater, 516
U.S. 163, 167 (1996) (per curiam) (emphases added).
The Third Circuit had the opportunity to consider the
impact of Coalfield Justice on the issues presented
here, and the court declined panel and en banc rehearing on that basis. And rightly so—nothing in Coalfield
Justice casts doubt on the panel’s analysis.
1. Coalfield Justice addressed a narrow set of circumstances: where a county board (1) opted to conduct
pre-election-day review of mail-in ballot return packets, (2) “segregated electors’ mail-in ballot return
packets for disqualifying errors,” but then (3) issued
misleading notifications to those same electors
through SURE, suggesting that their ballots would
likely be counted. Coalfield Justice, 343 A.3d at 1183–
35
86, 1216. As every Justice recognized, if a county board
“is not segregating ballots,” it is not required “to notify
the elector of such defect or otherwise reflect the disqualification of the mail-in ballot when it inputs a
SURE code.” Id. at 1220 n.57 (majority op.); see also
id. at 1234 (Brobson, J., dissenting, joined by Wecht
and Mundy, J.J.) (“Whether . . . a county board of elections must provide notice of a defective mail ballot . . .
depends on whether the county board of elections has
implemented a procedure . . . to inspect and segregate
defective ballots prior to the pre-canvass and canvass.”). In the counties that do not undertake this preliminary analysis, the decision changes nothing: voters who submit mail ballots with missing or incorrect
dates will not have another opportunity to cast an effective ballot.
2. Even if the Commonwealth were right that
Coalfield Justice requires all counties to offer voters
advance notice and opportunity to cure dating errors,
it is still improbable that this change would “determine the ultimate outcome of the litigation.” Lawrence, 516 U.S. at 167. The Third Circuit’s principal
focus was the fact “that the date requirement can result in the rejection of a number of ballots sufficient to
affect the composition of elected governing bodies.”
See App.35a & n.29. To be sure, the court noted an
additional concern that voters “potentially ha[ve] no
means to correct the deficiency and cast a valid ballot,” App.35a (emphasis added). But it never suggested that fact was at all dispositive toward the outcome. Indeed, the Third Circuit confirmed as much
when it denied the rehearing petitions, which were
pending when Coalfield Justice issued, even as the
36
Commonwealth expressly urged rehearing on that basis. See Commw. Rule 28(j) Ltr. at 2, (3d Cir. Sept. 30,
2025), Dkt. No. 152-1; Commw. Pet. for Reh’g En Banc
at 13–15, (3d Cir. Sep. 9, 2025), Dkt. No. 149; see also
Pls.-Appellees’ Resp. to Pets. for Reh’g at 13 n.2 (3rd
Cir. Oct. 10, 2025), Dkt. No. 153.
IV. The Pennsylvania Supreme Court is poised
to enjoin the date requirement on state constitutional grounds.
Finally, even if the Petitions raised cert-worthy
questions for review, this case would be a poor vehicle
to address them. As the RNC acknowledges, RNC Pet.
37, the Pennsylvania Supreme Court is currently considering a parallel challenge to the date requirement
under the Pennsylvania Constitution’s Free and
Equal Elections Clause. See Baxter v. Philadelphia
Bd. of Elections, 332 A.3d 1183 (Table) (Pa. 2025)
(granting Petition for Allowance of Appeal). Like
nearly every federal judge to consider the question,
the Pennsylvania Supreme Court is likely to affirm
the Commonwealth Court’s ruling that the date requirement serves no legitimate state interest and
therefore violates the Commonwealth’s constitution.
If the Pennsylvania Supreme Court enjoins enforcement of the date requirement on an independent
state law ground, then the only course for this Court
will be to dismiss the petition as moot. See generally
Aikens v. California, 406 U.S. 813 (1972) (dismissing
writ of certiorari on question of federal constitutional
37
law after the California Supreme Court held the challenged law violated the state’s constitution). 7
CONCLUSION
The Court should deny the Petitions.
Petitioners suggest that, in this circumstance, this Court
should vacate the Third Circuit’s decision under the Munsingwear doctrine. If the Pennsylvania Supreme Court enjoins
enforcement of the date requirement before this Court rules on
the petitions, Plaintiffs-Respondents request supplemental briefing before the Court decides whether Munsingwear applies.
7
38
Respectfully submitted,
Uzoma N. Nkwonta
Counsel of Record
Richard A. Medina
Nicole E. Wittstein
Omeed Alerasool
ELIAS LAW GROUP LLP
250 Massachusetts Ave. NW,
Suite 400
Washington, DC 20001
(202) 968-4490
unkwonta@elias.law
Counsel for Respondents
Bette Eakin, DSCC, DCCC,
and AFT Pennsylvania
June 1, 2026
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.