Penn. State Conference v. Sec'y Com. of Penn.

97 F.4th 120

PENNSYLVANIA STATE CONFERENCE OF NAACP BRANCHES; League of Woman Voters of Pennsylvania; Philadelphians Organized To Witness Empower and Rebuild; Common Cause Pennsylvania; Black Political Empowerment Project; Make the Road Pennsylvania; Barry M. Seastead; Marlene G. Gutierrez; Aynne Margaret Pleban Polinski; Joel Bencan; Laurence M. Smith v. SECRETARY COMMONWEALTH OF PENNSYLVANIA; Adams County Board of Elections; Allegheny County Board of Elections; Armstrong 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; Dauphin County Board of Elections; Delaware County Board of Elections; Elk County Board of Elections; Erie County Board of Elections; Fayette County Board of Elections; Forest County Board of Elections; Franklin County Board of Elections; Fulton County Board of Elections; Greene County Board of Elections; Huntingdon County Board of Elections; Indiana County Board of Elections; Jefferson County Board of Elections; Juniata County Board 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; Philadelphia County Board of Elections; Pike County Board of Elections; Potter County Board of Elections; Schuylkill County Board of Elections; Snyder County Board of Elections; Somerset County Board of Elections; Sullivan County Board of Elections; Susquehanna County Board of Elections; Tioga County Board of Elections; Union County Board of Elections; Venango County Board of Elections; Warren County Board of Elections; Washington County Board of Elections; Wayne County Board of Elections; Westmoreland County Board of Elections; Wyoming County Board of Elections; York County Board of Elections

Republican National Committee; National Republican Congressional Committee; The Republican Party of Pennsylvania, Appellants (Intervenors in D.C.)

No. 23-3166

United States Court of Appeals, Third Circuit

Argued February 20, 2024

Opinion filed March 27, 2024

On Appeal from the United States District Court for the Western District of Pennsylvania (District Court No. 1-22-cv-00339), District Judge: Honorable Susan Paradise Baxter

John M. Gore [ARGUED], E. Stewart Crosland, Ryan M. Proctor, Louis J. Capozzi, III, Jones Day, 51 Louisiana Avenue NW, Washington, DC 20001, Counsel for Appellants Republican National Committee, National Republican Congressional Committee and The Republican Party of Pennsylvania and Intervenor Appellant Richard Marino

Steve Marshall, Edmund G. Lacour Jr., Soren Geiger, Office of Attorney General of Alabama, 501 Washington Avenue, P.O. Box 300152, Montgomery, AL 36104, Counsel for Amicus Appellant State of Alabama

Zachary M. Wallen, Chalmers Adams Backer & Kaufman, 301 S Hills Village Drive, Suite LL200-420, Pittsburgh, PA 15241, Counsel for Amicus Appellants Brian Cutler, Kim Ward and Joe Pittman

Gilbert Dickey, Conor D. Woodfin, Consovoy McCarthy, 1600 Wilson Boulevard, Suite 700, Arlington, VA 22209, Counsel for Amicus Appellant Restoring Integrity and Trust in Elections Inc

Brittany C. Armour, David Newmann, Hogan Lovells US, 1735 Market Street, 23rd Floor, Philadelphia, PA 19103, Adriel I. Cepeda Derieux, Sophia Lin Lakin, Ari J. Savitzky [ARGUED], American Civil Liberties Union, 125 Borad Street, 18th Floor, New York, NY 10004, Stephen A. Loney, Jr., Marian K. Schneider, Kate Steiker-Ginzberg, American Civil Liberties

Union of Pennsylvania Legal, P.O. Box 60173, Philadelphia, PA 19102, Witwold J. Walczak, American Civil Liberties Union, P.O. Box 23058, Pittsburgh, PA 15222, Counsel for Plaintiff Appellees

Richard E. Santee, Northampton County office of the Solicitor, 669 Washington Street, Easton, PA 18042, Counsel for Defendant Appellee Northampton County Board of Elections

Jacob B. Boyer [ARGUED], Michael J. Fischer, Office of Attorney General of Pennsylvania, Office of General Counsel, 333 Market Street, 17th Floor, Harrisburg, PA 17108, Sean A. Kirkpatrick, Lisa Eisenberg, Office of Attorney General of Pennsylvania, 1600 Arch Street, Suite 300, Philadelphia, PA 19103, Robert A. Wiygul, Hangley Aronchick Segal Pudlin & Schiller, One Logan Square, 18th & Cherry Streets, 27th Floor, Philadelphia, PA 19103, Counsel for Defendant Appellee Secretary Commonwealth of Pennsylvania

Molly R. Mudd, Adams County Office of Solicitor, 117 Baltimore Street, Gettysburg, PA 17325, Counsel for Defendant Appellee Adams County Board of Elections

Lisa G. Michel, Allegheny County Law Department, 300 Fort Pitt Commons, 445 For Pitt Boulevard, Suite LL 500, Pittsburgh, PA 15219, Counsel for Defendant Appellee Allegheny County Board of Elections

Casey A. Coyle, Babst Calland, 409 N 2nd Street, Suite 201, Harrisburg, PA 17101, Elizabeth A. Dupuis, Babst Calland, 330 Innovation Boulevard, Suite 302, State College, PA 16803, Counsel for Defendant Appellees Bedford County Board of Elections, Carbon County Board of Elections, Centre County Board of Elections Columbia County Board of Elections, Dauphin County Board of Elections Huntingdon County Board of Elections, Indiana County Board of Elections, Jefferson County Board of Elections, Lawrence County Board of Elections, Lebanon County Board of Elections, Monroe County Board of Elections, Montour County Board of Elections, Northumberland County Board of Elections, Snyder County Board of Elections, Venango County Board of Elections, and York County Board of Elections

Tyler B. Burns, Bucks County Law Department, 55 E Court Street, 5th Floor, Doylestown, PA 18901, Counsel for Defendant Appellee Bucks County Board of Elections

Timothy J. Ford, Christian M. Velez-Vargas, Dilworth Paxson, 1500 Market Street, Suite 3500E, Philadelphia, PA 19102, Counsel for Defendant Appellee Chester County Board of Elections

James M. Parks, Duane Morris, 30 S. 17th Street, Philadelphia, PA 19103, Counsel for Defendant Appellee Delaware County Board of Elections

Robert E. Grimm, Grimm Layers, P.O. Box 430, Smithfield, PA 15478, Counsel for Defendant Appellee Greene County Board of Elections

John Marlatt, Philip W. Newcomer, Montgomery County Office of Solicitor, One Montgomery Plaza, Suite 800, P.O. Box 311, Norristown, PA 19404, Counsel for Defendant Appellee Montgomery County Board of Elections

Thomas A. Burkhart, McNerney Page Vanderlin & Hall, 433 Market Street, P.O. Box 7, Williamsport, PA 17701, Counsel for Defendant Appellee Union County Board of Elections

Melissa A. Guiddy, Suite 103, 2 N Main Street, Greensburg, PA 15601, Counsel for Defendant Appellee Westmoreland County Board of Elections

Brian H. Benjet, Ilana H. Eisenstein, DLA Piper, 1650 Market Street, One Liberty

Place, Suite 5000, Philadelphia, PA 19103, Alison L. Stohr, City of Philadelphia, Law Department, 15th Floor, 1515 Arch Street, Philadelphia, PA 19102, Counsel for Defendant Appellee Philadelphia County Board of Election

Jason Lee [ARGUED], Tovah R. Calderon, United States Department of Justice, Civil Rights Division, Appellate Section, P.O. Box 14403, Ben Franklin Station, Washington, DC 20044, Counsel for Amicus Appellee United States of America

Alexander D. Bernstein, Aaron H. Crowell, David C. Kimball-Stanley, Clarick Gueron Reisbaum, 220 5th Avenue, 14th Floor, New York, NY 100001, Counsel for Amicus Appellee The Protect Democracy Project

Omeed Alerasool, Justin Baxenberg, Daniel J. Cohen, Uzoma N. Nkwonta, Elias Law Group, 250 Massachusetts Avenue NW, Suite 400, Washington, DC 200001, Counsel for Intervenor Appellees Democratic Senatorial Campaign Committee and Democratic Congressional Campaign Committee

Seth P. Waxman, Wilmer Cutler Pickering Hale & Dorr, 2100 Pennsylvania Avenue NW, Washington, DC 20037, Counsel for Intervenor Appellee Democratic National Committee

Before: SHWARTZ, CHUNG, and AMBRO, Circuit Judges

OPINION OF THE COURT

AMBRO, Circuit Judge,

Pennsylvania, like all other States, has devised a web of rules that qualified voters must follow to cast a ballot that will be counted. Mail-in and absentee voters, for their part, must sign and date the declaration printed on the return envelope containing their mail ballot. The date requirement, it turns out, serves little apparent purpose. It is not used to confirm timely receipt of the ballot or to determine when the voter completed it. But the Supreme Court of Pennsylvania ruled that dating the envelope is mandatory, and undated or misdated ballots are invalid under its state law and must be set aside.

We must decide whether federal law nonetheless requires those non-compliant ballots be counted. Section 10101(a)(2)(B) of the Civil Rights Act of 1964, called the Materiality Provision, prohibits denial of the right to vote because of an "error or omission" on paperwork "related to any application, registration, or other act requisite to voting," if the mistake is "not material in determining whether [an] individual is qualified" to vote. Because the date requirement is irrelevant to whether a vote is received timely, the blink...