Federal judge rules Pa. ballot dating rule violates constitutional right to political expression

Yahoo

01-04-2025

A Pennsylvania mail ballot envelope (Capital-Star photo)
Pennsylvania's requirement for voters to write the date on mail-in ballots infringes on the constitutional right to free expression, a federal judge in western Pennsylvania ruled Monday.
The decision by U.S. District Judge Susan Baxter is the latest in a series on Act 77, which gave voters the option of voting by mail without an excuse for not going to the polls in person for the first time in 2020. It's also the second time Baxer has found the law impermissibly disenfranchises voters.
People who choose to vote by mail are required to complete a declaration including the date on the outside of the envelope provided to return their ballots. But voters often forget the date or write a date unrelated to the election, such as their birthdate. Such mistakes have caused tens of thousands of ballots to be disqualified even when they're returned on time. They often form the basis to challenge mail ballots in close elections.
In a lawsuit by the national Democratic congressional and senate campaign committees and the American Federation of Teachers against Pennsylvania's 67 county boards of elections, Baxter found the requirement serves no compelling government interest and doesn't justify infringing on voters' First Amendment rights.
She found no evidence to support 'nebulous' claims by Republican groups that intervened in the case that the date requirement bolsters voter confidence or preserves the solemnity of voting. While preventing voter fraud is less ambiguous, there's also no evidence the date requirement serves that purpose, Baxter said.
'Since there is no evidence that the date requirement serves any state interest, even a slight burden on voting rights cannot withstand constitutional scrutiny,' she wrote. 'Put another way, even the slightest burden that results from the enforcement of the date provision is too much when there is no counterbalance.'
Calls to attorneys for the Republican National Committee and an attorney and a spokesperson for the Democratic Congressional Campaign Committee and Democratic Senate Campaign Committee were not returned Monday.
Last year, Baxter, who is a Trump appointee, ruled in a separate lawsuit the date requirement violated the Materiality Clause of the federal Civil Rights Act, which bans rules that prevent people from voting over meaningless errors on election paperwork. The U.S. 3rd Circuit Court of Appeals reversed Baxter's decision, finding the provision applies only when the state is determining who may vote and not to 'rules, like the date requirement, that govern how a voter must cast his ballot for it to be counted.'
The date requirement has also been the subject of a web of state court decisions that have, so far, failed to resolve whether the rule violates the Pennsylvania Constitution. In a case last October, the state Supreme Court declined to rule on the issue with the Nov. 5 presidential election less than 30 days away,citing the risk of confusion a change in the rules might cause.
In each of the prior cases, the evidence established that counties stamp ballots with the date and time they are received to document that they arrived before the Election Day deadline.
The Supreme Court in January agreed to hear an appeal in a case from Philadelphia challenging the disqualification of mail-in ballots in a special election for the state House. The lower Commonwealth Court ruled just before the Nov. 5 election that the date rule violates the state constitution.
In her decision, Baxter noted the right to free expression at issue was separate from the 'core political speech' protected under the First Amendment. The U.S. Supreme Court established a test to determine whether rules that infringe on political expression via the ballot are constitutional. That test balances whether the infringement is justified by an interest in orderly elections.
'The commonwealth has not identified what specific regulatory interest is furthered. Indeed, despite formal notification, the commonwealth has not defended the constitutionality of the dating requirement,' Baxter said, noting that most of the county boards of elections had not identified an interest in enforcing the date requirement.