WASHINGTON, D.C — On Friday, Feb. 3, the U.S. Department of Justice (DOJ) filed a statement of interest in a federal lawsuit in Pennsylvania challenging the state’s rules against counting undated mail-in ballots (ballots that are timely cast and valid but missing a date on their outer return envelopes) and wrongly dated mail-in ballots (ballots that are timely cast and valid but missing a date on their outer return envelopes). The non-partisan organizations behind this lawsuit argue that rejecting mail-in ballots based upon a missing or incorrect date on the ballot envelope violates the Materiality Provision of the Civil Rights Act. A statement of interest outlines the United States’ position regarding an ongoing lawsuit in which the DOJ isn’t a party; in this case, the statement was signed by Kristen Clarke, the assistant attorney general for the DOJ’s Civil Rights Division.
The DOJ sides with the plaintiffs and argues that “[e]rrors or omissions regarding a date do not pertain to a voter’s qualifications” and therefore disqualifying voters for such errors violates the Materiality Provision. The DOJ writes that if the Materiality Provision “precludes rejecting an otherwise properly cast and timely-received mail ballot merely because a voter erred by omitting a date on the absentee ballot envelope or writing the wrong date (such as a date of birth), as that error is not material to determining the voter’s qualifications under state law to cast a ballot, then Pennsylvania may no longer reject mail ballots on that basis.”
Notably, in its statement the DOJ also provides insight on a growing fringe conservative legal theory, which states that there’s no private right of action and that only the DOJ, and not private organizations or individuals, can bring lawsuits under certain civil rights laws. On Jan. 6, the court allowed the Republican National Committee, National Republican Congressional Committee and Republican Party of Pennsylvania to intervene in the lawsuit. The Republican intervenors argue that the plaintiffs’ claims should be dismissed, in part because they theorize that there is no private right of action — which stipulates that individuals and organizations can bring lawsuits — under the Materiality Provision of the Civil Rights Act. In its statement of interest, the DOJ refutes this argument and writes that the “Court should also reject [the Republican intervenors’]’ view that private litigants cannot enforce Section 101.” The Republican intervenors also argue that the Materiality Provision only applies to registration, which the DOJ refutes by stating that “Section 101 incorporates all steps of the voting process.”