WASHINGTON, D.C. — A new amicus brief penned by over half of the Republican state attorneys general in the country exposes Republicans’ cynical plot to disenfranchise voters for trivial errors as the party and officials continue to embrace anti-voting policies and hostility toward democracy.
Seventeen Republican attorneys general signed onto a new “friend of the court brief” to provide input in a critical case — that does not currently stand to impact any of their jurisdictions — about how Pennsylvania counties count mail-in ballots.
The new brief argues that the trial court’s decision — which required counties to count ballots with certain trivial errors that do not impact voters’ eligibility — was “silly” and “seriously misguided” and requests that the 3rd U.S. Circuit Court of Appeals overturn the ruling.
Republican attorneys general are injecting themselves into a years-long saga in Pennsylvania.
Ahead of the 2022 midterm elections, the Pennsylvania Supreme Court blocked counties from counting mail-in ballots with outer return envelopes that had missing or incorrect dates. Due to this, civil rights groups filed a new case in federal court that is currently pending in the 3rd Circuit, Pennsylvania State Conference of the NAACP v. Chapman.
The plaintiffs alleged that the mail-in ballot guidance violates the Materiality Provision of the Civil Rights Act — which prevents disenfranchising a voter for a reason that is not material to their eligibility such as a small error or omission — because the date is not consequential in determining if a voter’s ballot was timely cast. Instead, Pennsylvania uses the time the ballot was received and stamped by the county board to determine when the ballot was received.
A federal court agreed with the plaintiffs and blocked the state’s guidance in November of last year requiring all ballots with a missing or incorrect date to be counted. In its order, the trial court revealed that “over 7600 mail ballots in the twelve counties were not counted” as a result of this requirement during the 2022 elections.
The rejection of mail-in ballots disproportionately impacts both minority voters and Democratic voters as both groups use mail-in voting at a higher rate. After the 2022 midterm elections, data from the secretary of state’s office showed that Democratic ballots accounted for about 68% of the state’s mail-in ballot rejections during the 2022 midterms. Reporting from Votebeat found that in Philadelphia specifically, “voters from heavily nonwhite and lower-income communities in Philadelphia are more likely to have their ballots rejected due to simple mistakes.”
This victory was monumental, but Republicans appealed.
This decision was a major victory for voters, especially since the Pennsylvania Supreme Court previously upheld the date provision just a week before the 2022 November elections. Due to rules that require voters to date and sign their ballot’s outer envelope and insert each ballot into an additional secrecy envelope, Pennsylvania rejects mail-in ballots at a staggering rate. This decision has already made an impact including tying a race for Towamencin supervisor after undated and incorrectly dated ballots were counted.
However, Republicans do not want this decision to stand and are instead trying to tear down this key portion of the Civil Rights Act. The Republican National Committee, who intervened in the lawsuit, appealed the decision to the 3rd Circuit. The decision to count undated and incorrectly dated ballots is now paused pending the 3rd Circuit’s decision.
Now, Republican attorneys general are entering the fold in an attempt to overturn this victory for voters.
Republican attorneys general are an increasingly active and organized anti-voting group who have been using amicus briefs to promote fringe legal theories and anti-voting policies across the country.
In this case, none of the 17 attorneys general who signed onto the brief represent states in the 3rd Circuit. Attorneys general from Alabama, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Ohio, South Carolina, Texas, Utah and West Virginia are interfering in this litigation to attempt to disenfranchise voters who they do not even oversee. The 3rd Circuit’s ultimate decision will only impact Pennsylvania, New Jersey, Delaware and the Virgin Islands.
Republicans argue that the district court erred by allowing private individuals and organizations to sue under the Materiality Provision and interpreting the provision too broadly. Attacks on who can sue under landmark civil rights laws — also known as a private right of action — are part of a larger trend that is becoming more and more mainstream within the Republican legal establishment.
Republicans in this case are arguing that only the U.S. attorney general, not individuals or groups can bring claims under this provision. (The U.S. Department of Justice submitted a brief arguing that this is not the case.) As for the scope of the provision, the attorneys general argue that Congress did not pass the Materiality Provision to “target” “election integrity” laws, voter suppression laws Republicans pass under the guise of security. “Appellants have articulated the clear meaning of the statute. The district court’s ‘silly’ and seriously misguided interpretation should be rejected,” the brief concludes.
The underlying decision in this case is a huge victory for voters and stands to prevent the unnecessary disenfranchisement of thousands. As Democrats and pro-voting forces continue to fight for a more just and inclusive democracy, Republicans continue to tear away at its fabric and mock court decisions with which they do not agree. This brief is the perfect exemplar of both this phenomenon and a reminder of one of the many ways democracy remains on the docket in 2024 as this case could be crucial for ensuring every ballot is counted in an important swing state, Pennsylvania.