A lawsuit to ensure that 257 mail-in ballots were counted — in a judicial election in Lehigh County, Pennsylvania — was small in scope, but large in potential ramifications.
Here, the 257 ballots were received before Pennsylvania’s 8 p.m. deadline on Election Day, so they were timely and otherwise valid, but the voters had failed to write a date on the ballot’s outer envelope. Those missing dates were the single reason why their votes were not counted. Several voters then sued the county’s election board under the Civil Rights Act.
That’s right, the lawsuit was brought under the Civil Rights Act, not the Voting Rights Act of 1965 (VRA), a major federal law that protects voting rights. Instead, there is an under-the-radar provision in the Civil Rights Act of 1964, signed by former President Lyndon Johnson the year prior to the VRA: “No 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.” This is known as the Civil Right Act’s Materiality Provision.
How does the Civil Right Act’s Materiality Provision protect the right to vote?
Trivial mistakes happen in voting and voter registration; the Civil Right Act’s Materiality Provision aims to protect voters from unnecessary disenfranchisement because of these errors. The common “errors or omissions” that lawsuits argue are protected by this provision include missing or unmatched signatures, incorrect or missing dates, other omissions on mail-in ballot forms or ballots being returned without the official outer envelope.
Exceedingly high mail-in ballot rejection rates, in states like Texas or New York, often mean that elections officials are likely rejecting at least some ballots that should, in fact, be counted. A lawsuit against the state of New York that invokes the provision argues that discarding a ballot for arbitrary reasons — such as returning it outside the voter’s registered county or polling district or if the U.S. Postal Service fails to postmark it — leads to unnecessary disenfranchisement, particularly of voters of color and those who speak English as a second language. In some instances, a state’s ballot receipt deadline itself has been challenged under this provision. Certain elements of in-person voter ID requirements have also been challenged in Georgia and Wisconsin.
The Materiality Provision applies to voter registration as well; lawsuits have challenged the disclosure of Social Security numbers for voter registration purposes and “wet signature” requirements. In fact, the U.S. Department of Justice sued the state of Texas last fall over its new voter suppression bill for “conditioning the right to cast a mail ballot on a voter’s ability to recall and recite the identification number provided on an application for voter registration months or years before.”
Despite the breadth of examples, the question of what errors or omissions are material or immaterial to vote remains unsettled. “With no clear statutory definition, and given that the term ‘material’ is subject to various meanings, federal courts have interpreted this…provision in different—and sometimes conflicting—ways,” writes a Congressional Research Service report. The application is also highly context specific. For example, a missing date is not related to a voter’s eligibility or their voting preferences, but it could be relevant to a state’s ballot receipt deadline.
To count or not to count? Two distinct, but interrelated, Pennsylvania cases recently revolved around this provision.
The Materiality Provision, and the question of counting undated mail-in ballots, was center stage in Pennsylvania over the past few months. In the wake of a GOP Senate primary contest that was too close to call, trailing Republican candidate David McCormick invoked the Materiality Provision in a lawsuit arguing that undated mail-in ballots should be counted. A state court granted McCormick’s request, but he conceded the race soon after.
Elsewhere in Pennsylvania, federal courts were considering this very same legal issue regarding those ballots in Lehigh County we mentioned earlier. Like in the Senate primary lawsuit, the 3rd U.S. Circuit Court of Appeals held that the 257 undated mail-in ballots should be counted. The most damning piece of evidence was that the county board of elections, the main defendant in the case, admitted that the date omissions were irrelevant. “Ballots were only to be set aside if the date was missing—not incorrect. If the substance of the string of numbers does not matter, then it is hard to understand how one could claim that this requirement has any use in determining a voter’s qualifications,” the 3rd Circuit concluded.
SCOTUS didn’t weigh in this time. But, what’s next for the Materiality Provision’s main enforcement mechanism?
One of the central claims advanced during the Lehigh County lawsuit was that there is no private right of action under the Materiality Provision. This is a concerning argument: A private right of action grants individuals and organizations the ability to bring lawsuits under a given statute. Consequently, without a private right to action under the Civil Rights Act’s voting rights provisions, the statute would become largely ineffective and unenforceable. The vast majority of cases protecting the right to vote today come from individuals, political parties and their affiliated groups or civil rights organizations.
In the Civil Rights Act, the law explicitly authorizes the U.S. attorney general to bring litigation to enforce its voting rights provisions, but “the statute is silent on whether an individual may bring a private right of action.” The U.S. Supreme Court has also never ruled on whether anyone can bring a claim under the Materiality Provision, though the prevailing understanding and longstanding precedent are that there is an implied right of private action.
The 3rd Circuit and 11th U.S. Circuit Court of Appeals agreed as well. (In the absence of a definitive U.S. Supreme Court stance, we turn to the federal appellate courts to establish the current legal understanding.) In contrast, the 6th U.S. Circuit Court of Appeals has held several times that the Materiality Provision does not allow private lawsuits. In a 2017 brief in support of the Supreme Court taking up the latest 6th Circuit case, the Brennan Center points to this split between circuit courts as a reason for the Court to resolve the issue. In the end, the nation’s highest court did not take the case.
That doesn’t mean that the Supreme Court won’t ever hear a case and decide the issue. In fact, the GOP has shown interest in removing the private right of action not only for the Materiality Provision, but for the VRA as well.
In February, a federal district judge in Arkansas made waves with a bold claim that there is no private right of action under Section 2 of the VRA. In his order, the Trump appointee rejected decades of case precedent and ruled that nobody except the U.S. attorney general can bring such a lawsuit.
It was a bizarre order, but representative of an argument increasingly embraced by Republicans to undercut both the VRA and the Civil Rights Act. In last year’s decision in Brnovich v. Democratic National Committee, Justices Clarence Thomas and Neil Gorsuch wrote a concurrence that highlighted the fact that the case “assumed — without deciding” that the VRA has an implied right of action.
As the Brennan Center wrote in 2017, the “constraints on the Justice Department’s staff and time prevent it from prosecuting every meritorious voting rights case.” The option for private actors to bring legal suits against unfair maps, discriminatory laws or to ensure that all votes are counted remains a crucial tool. Just look at the Civil Right Act’s Materiality Provision and its decades-long history to see how a seemingly small provision has proven an important protection for voters. After all, would you want your vote thrown away for a small, irrelevant mistake?