Could Lawsuits Over Simple Ballot Mistakes Be the Difference in Key Swing States?

Red background with a blue cut out of the United States overlayed by text from the Materiality Provision

A key provision of the Civil Rights Act protects voters nationwide from being disenfranchised over innocent and minor accidental ballot mistakes. Republicans seem bothered by this reality, litigating against parties seeking to enforce the provision in a multitude of court cases throughout the country.

Dating back 60 years to the passage of the 1964 Civil Rights Act, the Materiality Provision states that “[n]o person acting under color of law shall…deny the right of any individual to vote in any election because of an error or omission…if such error or omission is not material in determining whether such individual is qualified.”

In practice, the provision seeks to ensure that well-intended voters aren’t disenfranchised over small issues that are irrelevant to a voter’s eligibility. The most common areas of concern involve signatures, incorrect or missing dates, other omissions on mail-in ballots and ballots missing an outer return envelope.

Since there aren’t clear definitions of what mistakes are material versus immaterial to voting, the question remains unsettled, leading to increased legal back-and-forth with incongruent decisions nationwide. Those battles include arguments that only the U.S. attorney general can bring claims under the provision, meaning citizens burdened by immaterial laws could not seek legal remedies.

Currently, there are at least six active cases involving Materiality Provision claims, according to our case tracker, four of which originate from battleground states: Arizona, Georgia, Pennsylvania and Wisconsin. In these four states, with especially tight margins, cases like these could very well be determinative in the presidential election and all the down ballot races in 2024. 

We saw just how impactful these lawsuits can be in a case — which is still ongoing — from the 2022 midterm elections over Pennsylvania’s undated and wrongly dated mail-in ballots. 

In the week leading up to the 2022 midterm elections, the Pennsylvania State Conference of the NAACP filed a lawsuit challenging the state’s plan to not count undated or wrongly dated mail-in ballots. In Pennsylvania, voters are required to date the return envelope of their ballot with the day in which they signed the declaration. Republicans had, just days earlier, successfully obtained an order from the state Supreme Court barring the counting of any such ballots during the 2022 midterms — a decision that ultimately silenced the voices of more than 7,600 voters.

The NAACP’s claim was straightforward. Whether a Pennsylvania voter didn’t include a date or provided an incorrect date is irrelevant because county boards of elections stamp when a ballot is received, and this stamp is what is used to determine eligibility under state law. Counties know whether a voter’s ballot was received in time to be legally cast. The complaint points out how, for example, voters could simply write their own birth date rather than the date they signed the envelope.

A year after the midterms, a federal court agreed, holding that the provision was an immaterial roadblock to voting. The court noted that the handwritten date on the return envelope was not used to determine any qualifications to vote and in fact, voters had already been deemed eligible to vote since they were able to obtain a mail-in ballot in the first place. For now, the restrictive policy remains in place, pending the results of an appeal by Republicans.

Additionally, the court rejected a key argument being made as of late by Republicans attacking the Materiality Provision, asserting that private litigants, like voters or groups, cannot bring lawsuits under this provision. In legal terms, this is known as a private right of action. If a private right of action does not exist under a certain law, then only the U.S. attorney general could sue under that provision. Republicans have made a habit of attacking a private right of action under Section 2 of the Voting Rights Act as well.

A lawsuit in Georgia arguing claims under the Materiality Provision targets a similar election policy — that election officials must reject a voter’s mail-in ballot if the birth date written on an outer envelope is different from the date on the voter’s registration card. Again, such a requirement is rife for incidental mistakes if a voter forgets or misunderstands what date is necessary. A judge has temporarily blocked the provision, which is currently on appeal to the 11th U.S. Circuit Court of Appeals.

In Arizona, pro-voting parties are seeking to use the Materiality Provision to defend voters in a unique way — guarding against citizen and birthplace requirements. Currently, Arizona voters must check a box affirming that they are a U.S. citizen on voter registration forms. Plaintiffs argued that this requirement was immaterial if a voter provided documentary proof of citizenship, and a district court agreed, striking down the requirement for those who provide proof. The court ruled however that the box was not immaterial if proof of citizenship was not provided. 

Plaintiffs also challenged, under the Materiality Provision, Arizona’s birthplace requirement, which mandates that voters include their place of birth on voter registration forms. The lawsuit argues the requirement is immaterial to an individual’s eligibility to vote, and asked the court to strike it down. The court heard this claim at trial and a decision is now pending.

Meanwhile in the Badger State, the Materiality Provision is protecting voters who cast mail-in ballots that contain errors in the witness address. In Wisconsin, a voter’s mail-in ballot must be overseen by a witness, who must produce a witness certificate that bears the witness’s address. If the address is missing, the ballot can’t count, per Wisconsin law. The Wisconsin Elections Commission (WEC) sought to partially alleviate the burdensome requirement in 2016 by permitting election officials to fill in the missing address if reliable information is available. A circuit court struck down the guidance two months before the midterms.

In its lawsuit, the League of Women Voters argues that the meaning of “missing” was unclear, and additionally claims that partial witness addresses do not qualify as a “missing” address. Voters could be at risk of having their ballots thrown out for incidental errors like a missing or misspelled state name that are irrelevant to their eligibility to vote, in violation of the Materiality Provision, according to the complaint. The risk to voters is not trivial. A post-2020 election audit found that nearly 7% of all mail-in ballots contained some form of witness address certification defect and more than 5% were simply missing a zip code.

In a significant win for voters last month, a court ruled that the rejection of mail-in ballots due to certain witness address errors violates the Materiality Provision and following a different 2022 court decision, WEC has been unable to issue guidance to clerks on how to cure errors in witness addresses. According to the court, the guidance ensured that absentee ballots were not rejected for mere technical defects in a witness’s address, and without it “municipal clerks throughout Wisconsin are interpreting the Witness Address Requirement differently, with some clerks discarding otherwise valid ballots due to irrelevant and trivial errors.”

The court pointed out the same key fact that others have argued, that the required witness information “says nothing about the voter’s citizenship, age, or residency.” The Republican-controlled Legislature appealed the decision and asked for a stay pending appeal, which has yet to be granted.

So far, the Materiality Provision has largely prevailed in protecting voters from having their ballots thrown out due to small mistakes — despite right-wing attempts to weaken this key provision. As voters continue to make innocuous mistakes on their ballots, lawsuits like these could determine whether thousands of votes are counted or tossed, and make the difference in who gets elected in major state and federal races.