Like Wisconsin, Pennsylvania is a state where there haven’t been any new suppressive voting laws in the last few years thanks to its Democratic governor. But that doesn’t mean there isn’t a lot of voting rights litigation going on. To the contrary: As Republicans continue their assault on mail-in voting in the state, Pennsylvania is rampant with new lawsuits. This litigation will not only influence which votes are counted in Pennsylvania this year, but it may change how Pennsylvanians are able to vote in future elections as well.
Mail-in voting lawsuits
The bulk of lawsuits in Pennsylvania deal with mail-in voting. After former President Donald Trump lost the 2020 election, he and his allies blamed mail-in voting, even filing a lawsuit that suggested millions of mail-in votes should be discarded from official election results. The attacks on mail-in voting didn’t end there. Republicans continue to target many aspects of mail-in voting in the state, from drop boxes to ballot curing to even the law that originally authorized no-excuse mail-in voting in the first place despite originally supporting it.
One of the most complicated (and confusing) threads of litigation in Pennsylvania this year concerns undated mail-in ballots. Act 77, the law that authorizes mail-in voting, requires voters to write the date next to their signature on the outside of their ballots. Following a 2021 judicial election in Lehigh County, a group of voters — whose ballots lacked handwritten dates and were subsequently rejected — sued over this requirement. In that case, Migliori v. Lehigh County Board of Elections, the 3rd U.S. Circuit Court of Appeals ruled that undated ballots should be counted, creating a binding precedent on lower federal courts in the 3rd Circuit, including those in Pennsylvania.
Meanwhile, Pennsylvania state courts in McCormick v. Chapman and Chapman v. Berks County Board of Elections ruled that counties must count undated mail-in ballots, pointing to both the 3rd Circuit ruling in Migliori and state law. The upshot of these three cases meant that undated mail-in ballots would likely be counted in this year’s elections — although Migliori also led to a Republican challenge to Act 77 itself (we’ll get to that later).
However, on Oct. 11, the U.S. Supreme Court vacated (or voided) the 3rd Circuit’s ruling — meaning Miglori’s decision that undated mail-in ballots should be counted is no longer binding precedent on federal courts. While the Pennsylvania Department of State has issued guidance to counties that all undated and incorrectly dated mail-in ballots should, in fact, be counted, Republicans have filed an emergency petition in the state Supreme Court challenging this guidance.
Date filed: Oct. 16, 2022
Plaintiffs: Republican National Committee (RNC), National Republican Congressional Committee (NRCC), Republican Party of Pennsylvania and Republican voters
Argument: The plaintiffs argue that guidance from the Pennsylvania Department of State requiring counties to count undated or incorrectly dated mail-in ballots violates the Pennsylvania Election Code. They argue that counting these ballots would result in the “dilution” of their votes and undermine the “‘integrity of [the] electoral process’” in Pennsylvania.
Intervenors strongly disagree with Petitioners’ interpretation of the Election Code, which contradicts evidentiary-based decisions of the Third Circuit and Commonwealth Court, and further believe that this Court should not take any action that could disenfranchise voters so close to an election. However, because the issues raised are of surpassing importance, Intervenors agree that this Court should invoke its King’s Bench powers to put the intensely destabilizing potential of Petitioners’ claims to rest as soon as possible by conclusively holding that undated or misdated ballots must be counted.INTERVENORS PROPOSED RESPONSE TO PETITION
Status: The plaintiffs filed a King’s Bench petition in the state Supreme Court, which allows petitioners to seek immediate relief from the state’s highest court. On Oct. 21, the Pennsylvania Supreme Court accepted the petition and briefing will occur this week.
Act 77 challenge
In 2019, Pennsylvania enacted Act 77, a sweeping, bipartisan election law that authorized no-excuse mail-in voting in the state for the first time. While the law earned the support of many legislative Republicans at the time, they’ve since soured on the law after Trump and his allies blamed mail-in voting for his 2020 election loss. State Republicans have filed multiple lawsuits challenging the constitutionality of Act 77, including McLinko v. Degraffenreid, in which the Pennsylvania Supreme Court upheld the law. Unfortunately, that didn’t stop Republicans from trying to uproot the law many of them originally supported. They filed a new lawsuit challenging the law this past summer, using the 3rd Circuit’s ruling in Migliori as part of their argument. Democratic groups intervened to defend Act 77.
Date filed: July 20, 2022
Plaintiffs: Republican members of the Pennsylvania House of Representatives
Argument: The plaintiffs — who also brought McLinko — argue that Act 77 should be struck down due to its non-severability clause, which holds that if “any provision of this act or its application to any person or circumstance is held invalid, the remaining provisions or applications of this act are void.” They allege that a federal lawsuit, Migliori v. Lehigh County Board of Elections (which prohibited the enforcement of two provisions of Act 77), renders the rest of the act void. However, since the lawsuit was filed, the U.S. Supreme Court vacated the ruling in Migliori.
Act 77, which allows any qualified Pennsylvanian elector to vote by mail for any reason, was approved by a bipartisan supermajority of the General Assembly in 2019. Of the fourteen Petitioners—all Republican members of the Pennsylvania House of Representatives—eleven voted in favor of Act 77. Now Petitioners are scrambling to undo this signature achievement.…This about-face regarding a previously uncontroversial voting method reflects the fact that mail voting had a clear partisan valence in the 2020 general election. Democrats cast nearly three times as many mail ballots as Republicans, and more than three out of every five mail and absentee ballots in Pennsylvania were cast by registered Democrats.APPLICATION OF DSCC AND DCCC FOR LEAVE TO INTERVENE
Status: The Pennsylvania Commonwealth Court held oral argument in the case on Oct. 12 — just a day after the Supreme Court vacated the decision in Migliori. A decision from the Commonwealth Court is pending.
Drop box challenges
Pennsylvania does not have any laws regulating the use of drop boxes. While the Department of State has issued guidance for counties, it isn’t legally binding and counties are free to adopt their own rules and regulations for drop boxes. America First Legal — a conservative group founded by Mark Meadows and Stephen Miller — filed two lawsuits challenging the drop box rules in Chester and Lehigh counties. Both lawsuits seek to place more restrictions on the counties’ use of drop boxes this year. The Pennsylvania Alliance for Retired Americans intervened in both lawsuits to defend drop boxes.
Date filed: Sept. 15, 2022
Plaintiffs: Pennsylvania voters
Argument: The plaintiffs argue that if Chester County’s drop boxes aren’t physically monitored, they will “suffer irreparable harm” because invalid ballots could “dilute their validly cast ballots.” They ask the court to require all drop boxes be physically monitored to ensure individuals only deposit their own ballots.
If adopted, Plaintiffs’ proposed restrictions could be ruinous for the Alliance and its members. The Alliance is a nonprofit organization that counts among its members hundreds of thousands of retired voters in the Commonwealth of Pennsylvania, including in Chester County. Plaintiffs’ requested relief would undermine the Alliance’s mission of ensuring that seniors are civically and politically engaged by making it harder—in some cases, prohibitively so—for the Alliance’s members to vote.APPLICATION OF ALLIANCE FOR LEAVE TO INTERVENE
Status: On Oct. 19, the judge denied the plaintiffs’ request for a preliminary injunction because Chester County decided to monitor its drop boxes after the lawsuit was filed. While drop boxes will be available, they will be subject to surveillance.
Date filed: Sept. 1, 2022
Plaintiffs: Pennsylvania voters
Argument: The plaintiffs allege that Lehigh County’s current rules for drop boxes violate the Pennsylvania Election Code. In particular, the lack of monitoring of drop boxes allegedly raises the risk that invalid votes will be cast and “dilute…validly cast ballots.” The plaintiffs ask the court to prohibit Lehigh County from using drop boxes unless the county can ensure that individuals using them are only delivering their own ballots.
Lastly, the Board has seen fit to take steps to protect election integrity and comply with Pennsylvania law. In doing so, it has made policy decisions with which the court will not interfere, such as the decision to use drop boxes, not employ manned ballot drop boxes, as well the decision regarding the location and available times for each drop box. Where the law does not clearly dictate, the Court will not second guess the wisdom or efficacy of the Board’s policy decisions.OPINION DENYING PRELIMINARY INJUNCTION
Status: On Oct. 19, the court denied the plaintiffs’ request to limit drop boxes in this year’s elections and Lehigh County is scheduled to deploy five drop boxes on Oct. 24. However, the plaintiffs have appealed this decision.
Curing is the process by which voters are notified by election officials and given the opportunity to correct errors on their mail-in ballots to ensure their votes are counted. The Pennsylvania Supreme Court ruled that while state law doesn’t require curing, it doesn’t prohibit it either, so it’s largely up to each individual county to decide whether and how to implement cure procedures. The disparity between different counties was a focus of some post-election litigation in 2020, and Republicans are also challenging cure procedures this year. Various Democratic organizations intervened in the lawsuit to defend curing.
Date filed: Sept. 1, 2022
Plaintiffs: Republican National Committee (RNC), National Republican Senatorial Committee (NRSC), National Republican Congressional Committee (NRCC), Republican Party of Pennsylvania and Pennsylvania voters
Argument: The plaintiffs argue that because the Pennsylvania Election Code does not create a procedure to cure ballots and the Legislature has not enacted any law for curing, counties shouldn’t be allowed to implement their own processes. They further contend that since counties have adopted varying procedures, there is allegedly “an unequal playing field” for voters. The plaintiffs also allege that the independent state legislature (ISL) theory, which posits that only the Legislature can implement federal voting rules, prevents county boards from creating cure procedures.
Petitioners have also not shown that the injunction is reasonably suited to abate the offending activity. Petitioners seek a statewide injunction enjoining all 67 County Boards from developing and implementing ‘unlawful’ notice and opportunity to cure procedures, as well as the Acting Secretary from taking any action inconsistent with such injunction. Again, Petitioners have not alleged a clear violation of the Election Code or the law interpreting it.COMMONWEALTH COURT OPINION
Status: After hearing arguments on Sept. 29, a Commonwealth Court judge denied the Republicans’ motion for a preliminary injunction that would have blocked counties from creating cure procedures. The plaintiffs appealed the decision to the Pennsylvania Supreme Court, which affirmed the lower court’s ruling in a 3-3 order on Oct. 21. As a result, counties are still able to develop cure procedures.
2020 election-related litigation
Fulton County voting machines challenge
Dominion Voting Systems, a company that manufactures voting machines, has been the subject of wild conspiracy theories from Republicans. In a few cases, these theories have led Republican-controlled jurisdictions to take action against Dominion.
Date filed: Sept. 20, 2022
Plaintiffs: Fulton County, the Fulton County Board of Elections and voters
Argument: The plaintiffs, echoing conspiracy theories about the 2020 election, allege there are serious issues with Dominion’s voting machines and, as a result, Dominion breached its contract with the county. The plaintiffs seek damages from Dominion.
As alleged in this Complaint, and as demonstrated by these aforementioned allegations and the reports and analyses conducted and discussed herein, Dominion required in its contract that Fulton County (and whatever party contracted to use their machines), accept its certification and testing parameters, where Dominion was largely responsible for ensuring that Dominion Voting Machine Systems passed certification requirements and logic and accuracy testing, and Dominion Voting Machines did not meet the conditions required for basic certification and testing sufficient to ensure the integrity of the elections for the citizens of Fulton County.COMPLAINT
Status: Litigation is ongoing.
2020 election investigation
As part of an investigation into the 2020 presidential election in Pennsylvania, state Republicans issued a subpoena to the secretary of the commonwealth requesting election materials that include names, dates of birth, driver’s license numbers, portions of Social Security numbers and addresses of all registered voters in the commonwealth. State Senate Democrats and Pennsylvania Attorney General Josh Shapiro (D) filed lawsuits against the subpoena, which were later consolidated into one case.
Date filed: Sept. 17, 2022
Plaintiffs: Pennsylvania, Pennsylvania Department of State, Pennsylvania secretary of the commonwealth and Democratic state senators
Argument: The plaintiffs argue that the investigation violates the state constitution and state law and that the subpoena requests personal information from voters that is illegal to share publicly.
The unprecedented act of issuing the September 15, 2021 subpoena, ostensibly for ‘legislative’ purposes, contravenes the Judiciary’s exclusive authority over the trial and determination of contested elections under state statutory and constitutional law. Further, the issuance of the subpoena constitutes an unauthorized audit of election matters, in contravention of state statutory and constitutional law and with serious consequences to the privacy rights and expectations of Pennsylvania voters.PETITION
Status: The Commonwealth Court held oral argument on Sept. 12.
Other voting rights lawsuits
York County English-only challenge
York County publishes election materials like ballots in English only, despite having a large Puerto Rican population. CASA, a grassroots organization that advocates on behalf of Pennsylvania’s immigrant and Latino communities, sent a letter to the county on Sept. 14 to request election materials be offered in Spanish. After the county failed to respond, CASA filed a lawsuit challenging the lack of Spanish-language election materials.
Date filed: Oct. 20, 2022
Argument: The plaintiff alleges that York County’s failure to provide Spanish-language materials violates Section 4(e) of the Voting Rights Act, which protects the voting rights of American citizens educated in Puerto Rican schools who may not be fluent in English.
Plaintiff CASA has more than 2,800 members in the state of Pennsylvania, more than 1,162 of whom reside in York County. Certain members of Plaintiff CASA in York County, Pennsylvania were raised and educated in Puerto Rico and are limited English proficient. For example, one of CASA’s members attended elementary school through eleventh grade in Puerto Rico, in which the language used in the classroom was predominantly Spanish. He does not speak, read, or understand English. This member is eligible to vote in York County, Pennsylvania, and wants and intends to vote in the 2022 Pennsylvania general election. However, because he is not English-proficient, he will be unable to vote effectively under Defendants’ current election procedures and using Defendants’ current election materials.COMPLAINT
Status: Litigation is ongoing.
Legislative redistricting challenge
Every 10 years during the redistricting process, Pennsylvania’s state House and Senate maps are redrawn by a reapportionment commission. The commission approved new maps on Feb. 4, 2022. Shortly after, one of the commissioners filed a lawsuit against the redistricting plans.
Date filed: Feb. 17, 2022
Plaintiffs: State House Majority Leader Kerry Benninghoff (R)
Argument: Benningoff alleges that the new state House and Senate maps are “extreme partisan outlier[s]” that favor Democrats, unnecessarily split political subdivisions and contain excessive population deviations. He also asserts certain districts are racial gerrymanders. For these reasons, he argues that the maps violate the Pennsylvania Constitution, the Voting Rights Act (VRA) and the 14th and 15th Amendments of the U.S. Constitution.
The Commission’s plan passed by a 4-1, bipartisan vote, with only Petitioner dissenting. The Commission’s House plan performed well on all the traditional redistricting criteria in Article II, Section 16—compactness, contiguity, respecting the integrity of political subdivisions, and near equal population. Indeed, the plan performs better on every metric, other than population equality, than the prior plan.BRIEF OF 2021 LEGISLATIVE COMMISSION IN OPPOSITION
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