Migliori v. Cohen

Migliori v. Cohen

Opinion

McKee, Circuit Judge.

] The Materiality Provision of the Civil Rights Act¹ prohibits any "person acting under color of law [from] deny[ing] 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 voter is qualified . . . to vote in such election."² In Pennsylvania, an error or omission is material to a voter's qualifications to vote if it is pertinent to either the voter's age, citizenship, residency, or felony status³ or the timeliness of the ballot.⁴

We are asked to determine if a date on the outside of a mail-in ballot, required under state law, is material to the voter's qualifications and eligibility to vote. However, in resolving that question, we must decide whether private [*3]  plaintiffs can even bring this suit to enforce the Materiality Provision.

] We hold that private plaintiffs have a private right of action to enforce § 10101 under 42 U.S.C. § 1983, and further hold that the dating provisions contained in 25 Pa. Stat. §§ 3146.6(a) and 3150.16 are immaterial to a voter's qualifications and eligibility under § 10101(a)(2)(B). Accordingly, we will remand to the District Court and direct that Court to enter an order that the undated ballots be counted.

I. Factual Background

In 2019, the Pennsylvania General Assembly enacted new mail-in voting provisions, which permitted all registered voters to vote by mail.⁵ To receive the mail-in ballot, a voter must first complete an application that requires the voter to provide his or her name, address of registration, and proof of identification.⁶ The county board of elections then verifies that information and compares the application to the information on record for the voter.⁷ If the information on the request for a mail-in-ballot is consistent with the registration information for that voter, the voter receives a ballot package that contains a ballot, a secrecy envelope, a return envelope, and instructions for completing the absentee or mail-in ballot.⁸ The voter casts his or her vote by [*4]  marking the ballot, placing it in the secrecy envelope, and then placing the secrecy envelope in the return envelope.⁹ ] Under the Pennsylvania Election Code, the voter must "fill out, date and sign the declaration," otherwise known as the "voter declaration" printed on the return envelope.¹⁰ The voter then mails or delivers the ballot to the county elections board.¹¹ Delivery is timely if received by the board of elections by 8:00 p.m. on Election Day.¹² When county boards of elections receive a mail-in ballot, the ballot's envelope is stamped with the date of receipt and logged into the Statewide Uniform Registry of Electors (SURE) system.¹³

The Lehigh County Board of Elections (LCBE) held an election on November 2, 2021, to fill vacancies for the office of Judge of the Court of Common Pleas of Lehigh County. Six candidates ran for three available judgeships. Candidates Thomas Caffrey and Thomas Capehart received the most votes and were sworn into office. During the counting of the ballots, the LCBE set aside 257 out of approximately 22,000 mail-in or absentee ballots that lacked a handwritten date next to the voter declaration signature. The LCBE also received four ballots with the [*5]  date in the wrong location on the outer envelope and set those aside. It is undisputed that all of these ballots were received by the deadline of 8:00 p.m. on election day. As of November 15, 2021, candidate David Ritter received the third most votes in the election, which is seventy-four votes more than the candidate in fourth place, Zachary Cohen.

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