PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 23-3166

PENNSYLVANIA STATE CONFERENCE OF NAACP

BRANCHES; LEAGUE OF WOMAN VOTERS OF

PENNSYLVANIA; PHILADELPHIANS ORGANIZED TO

WITNESS EMPOWER AND REBUILD; COMMON

CAUSE PENNSYLVANIA; BLACK POLITICAL

EMPOWERMENT PROJECT; MAKE THE ROAD

PENNSYLVANIA; BARRY M. SEASTEAD; MARLENE

G. GUTIERREZ; AYNNE MARGARET PLEBAN

POLINSKI; JOEL BENCAN; LAURENCE M. SMITH

SECRETARY COMMONWEALTH OF PENNSYLVANIA;

ADAMS COUNTY BOARD OF ELECTIONS;

ALLEGHENY COUNTY BOARD OF ELECTIONS;

ARMSTRONG COUNTY BOARD OF ELECTIONS;

BEAVER COUNTY BOARD OF ELECTIONS; BEDFORD

COUNTY BOARD OF ELECTIONS; BERKS COUNTY

BOARD OF ELECTIONS; BLAIR COUNTY BOARD OF

ELECTIONS; BRADFORD COUNTY BOARD OF

ELECTIONS; BUCKS COUNTY BOARD OF

ELECTIONS; BUTLER COUNTY BOARD OF

ELECTIONS; CAMBRIA COUNTY BOARD OF

ELECTIONS; CAMERON COUNTY BOARD OF

ELECTIONS; CARBON COUNTY BOARD OF

ELECTIONS; CENTRE COUNTY BOARD OF

ELECTIONS; CHESTER COUNTY BOARD OF

ELECTIONS; CLARION COUNTY BOARD OF

ELECTIONS; CLEARFIELD COUNTY BOARD OF

ELECTIONS; CLINTON COUNTY BOARD OF

ELECTIONS; COLUMBIA COUNTY BOARD OF

ELECTIONS; CRAWFORD COUNTY BOARD OF

ELECTIONS; CUMBERLAND COUNTY BOARD OF

ELECTIONS; DAUPHIN COUNTY BOARD OF

ELECTIONS; DELAWARE COUNTY BOARD OF

ELECTIONS; ELK COUNTY BOARD OF ELECTIONS;

ERIE COUNTY BOARD OF ELECTIONS; FAYETTE

COUNTY BOARD OF ELECTIONS; FOREST COUNTY

BOARD OF ELECTIONS; FRANKLIN COUNTY BOARD

OF ELECTIONS; FULTON COUNTY BOARD OF

ELECTIONS; GREENE COUNTY BOARD OF

ELECTIONS; HUNTINGDON COUNTY BOARD OF

ELECTIONS; INDIANA COUNTY BOARD OF

ELECTIONS; JEFFERSON COUNTY BOARD OF

ELECTIONS; JUNIATA COUNTY BOARD OF

ELECTIONS; LACKAWANNA COUNTY BOARD OF

ELECTIONS; LANCASTER COUNTY BOARD OF

ELECTIONS; LAWRENCE COUNTY BOARD OF

ELECTIONS; LEBANON COUNTY BOARD OF

ELECTIONS; LEHIGH COUNTY BOARD OF

ELECTIONS; LUZERNE COUNTY BOARD OF

ELECTIONS; LYCOMING COUNTY BOARD OF

ELECTIONS; MCKEAN COUNTY BOARD OF

ELECTIONS; MERCER COUNTY BOARD OF

ELECTIONS; MIFFLIN COUNTY BOARD OF

ELECTIONS; MONROE COUNTY BOARD OF

ELECTIONS; MONTGOMERY COUNTY BOARD OF

ELECTIONS; MONTOUR COUNTY BOARD OF

ELECTIONS; NORTHAMPTON COUNTY BOARD OF

ELECTIONS; NORTHUMBERLAND COUNTY BOARD

OF ELECTIONS; PERRY COUNTY BOARD OF

ELECTIONS; PHILADELPHIA COUNTY BOARD OF

ELECTIONS; PIKE COUNTY BOARD OF ELECTIONS;

POTTER COUNTY BOARD OF ELECTIONS;

SCHUYLKILL COUNTY BOARD OF ELECTIONS;

SNYDER COUNTY BOARD OF ELECTIONS;

SOMERSET COUNTY BOARD OF ELECTIONS;

SULLIVAN COUNTY BOARD OF ELECTIONS;

SUSQUEHANNA COUNTY BOARD OF ELECTIONS;

TIOGA COUNTY BOARD OF ELECTIONS; UNION

COUNTY BOARD OF ELECTIONS; VENANGO

COUNTY BOARD OF ELECTIONS; WARREN COUNTY

BOARD OF ELECTIONS; WASHINGTON COUNTY

BOARD OF ELECTIONS; WAYNE COUNTY BOARD OF

ELECTIONS; WESTMORELAND COUNTY BOARD OF

ELECTIONS; WYOMING COUNTY BOARD OF

ELECTIONS; YORK COUNTY BOARD OF ELECTIONS

REPUBLICAN NATIONAL COMMITTEE; NATIONAL

REPUBLICAN CONGRESSIONAL COMMITTEE;

THE REPUBLICAN PARTY OF PENNSYLVANIA,

Appellants

(Intervenors in D.C.)

On Appeal from the United States District Court

for the Western District of Pennsylvania

(District Court No. 1-22-cv-00339)

District Judge: Honorable Susan Paradise Baxter

Argued February 20, 2024

Before: SHWARTZ, CHUNG, and AMBRO, Circuit Judges

(Opinion filed March 27, 2024)

John M. Gore [ARGUED]

E. Stewart Crosland

Ryan M. Proctor

Louis J. Capozzi, III

Jones Day

51 Louisiana Avenue NW

Washington, DC 20001

Counsel for Appellants Republican National

Committee, National Republican Congressional

Committee and The Republican Party of Pennsylvania

and Intervenor Appellant Richard Marino

Steve Marshall

Edmund G. Lacour Jr.

Soren Geiger

Office of Attorney General of Alabama

501 Washington Avenue

P.O. Box 300152

Montgomery, AL 36104

Counsel for Amicus Appellant State of Alabama

Zachary M. Wallen

Chalmers Adams Backer & Kaufman

301 S Hills Village Drive

Suite LL200-420

Pittsburgh, PA 15241

Counsel for Amicus Appellants Brian Cutler, Kim

Ward and Joe Pittman

Gilbert Dickey

Conor D. Woodfin

Consovoy McCarthy

1600 Wilson Boulevard

Suite 700

Arlington, VA 22209

Counsel for Amicus Appellant Restoring Integrity and

Trust in Elections Inc

Brittany C. Armour

David Newmann

Hogan Lovells US

1735 Market Street

Floor

Philadelphia, PA 19103

Adriel I. Cepeda Derieux

Sophia Lin Lakin

Ari J. Savitzky [ARGUED]

American Civil Liberties Union

125 Borad Street

Floor

New York, NY 10004

Stephen A. Loney, Jr.

Marian K. Schneider

Kate Steiker-Ginzberg

American Civil Liberties Union of Pennsylvania Legal

P.O. Box 60173

Philadelphia, PA 19102

Witwold J. Walczak

American Civil Liberties Union

P.O. Box 23058

Pittsburgh, PA 15222

Counsel for Plaintiff Appellees

Richard E. Santee

Northampton County office of the Solicitor

669 Washington Street

Easton, PA 18042

Counsel for Defendant Appellee Northampton County

Board of Elections

Jacob B. Boyer [ARGUED]

Michael J. Fischer

Office of Attorney General of Pennsylvania

Office of General Counsel

333 Market Street

Floor

Harrisburg, PA 17108

Sean A. Kirkpatrick

Lisa Eisenberg

Office of Attorney General of Pennsylvania

1600 Arch Street

Suite 300

Philadelphia, PA 19103

Robert A. Wiygul

Hangley Aronchick Segal Pudlin & Schiller

One Logan Square

& Cherry Streets

Floor

Philadelphia, PA 19103

Counsel for Defendant Appellee Secretary

Commonwealth of Pennsylvania

Molly R. Mudd

Adams County Office of Solicitor

117 Baltimore Street

Gettysburg, PA 17325

Counsel for Defendant Appellee Adams County

Board of Elections

Lisa G. Michel

Allegheny County Law Department

300 Fort Pitt Commons

445 For Pitt Boulevard

Suite LL 500

Pittsburgh, PA 15219

Counsel for Defendant Appellee Allegheny County

Board of Elections

Casey A. Coyle

Babst Calland

409 N 2

Street

Suite 201

Harrisburg, PA 17101

Elizabeth A. Dupuis

Babst Calland

330 Innovation Boulevard

Suite 302

State College, PA 16803

Counsel for Defendant Appellees Bedford County

Board of Elections, Carbon County Board of Elections,

Centre County Board of Elections Columbia County

Board of Elections, Dauphin County Board of

Elections Huntingdon County Board of Elections,

Indiana County Board of Elections, Jefferson County

Board of Elections, Lawrence County Board of

Elections, Lebanon County Board of Elections,

Monroe County Board of Elections, Montour County

Board of Elections, Northumberland County Board of

Elections, Snyder County Board of Elections, Venango

County Board of Elections, and York County

Board of Elections

Tyler B. Burns

Bucks County Law Department

55 E Court Street

Floor

Doylestown, PA 18901

Counsel for Defendant Appellee Bucks County Board

of Elections

Timothy J. Ford

Christian M. Velez-Vargas

Dilworth Paxson

1500 Market Street

Suite 3500E

Philadelphia, PA 19102

Counsel for Defendant Appellee Chester County

Board of Elections

James M. Parks

Duane Morris

30 S. 17

Street

Philadelphia, PA 19103

Counsel for Defendant Appellee Delaware County

Board of Elections

Robert E. Grimm

Grimm Layers

P.O. Box 430

Smithfield, PA 15478

Counsel for Defendant Appellee Greene County Board

of Elections

John Marlatt

Philip W. Newcomer

Montgomery County Office of Solicitor

One Montgomery Plaza, Suite 800

P.O. Box 311

Norristown, PA 19404

Counsel for Defendant Appellee Montgomery County

Board of Elections

Thomas A. Burkhart

McNerney Page Vanderlin & Hall

433 Market Street

P.O. Box 7

Williamsport, PA 17701

Counsel for Defendant Appellee Union County Board

of Elections

Melissa A. Guiddy

Suite 103

2 N Main Street

Greensburg, PA 15601

Counsel for Defendant Appellee Westmoreland

County Board of Elections

Brian H. Benjet

Ilana H. Eisenstein

DLA Piper

1650 Market Street

One Liberty Place, Suite 5000

Philadelphia, PA 19103

Alison L. Stohr

City of Philadelphia

Law Department

Floor

1515 Arch Street

Philadelphia, PA 19102

Counsel for Defendant Appellee Philadelphia County

Board of Election

Jason Lee [ARGUED]

Tovah R. Calderon

United States Department of Justice

Civil Rights Division, Appellate Section

P.O. Box 14403

Ben Franklin Station

Washington, DC 20044

Counsel for Amicus Appellee United States of

America

Alexander D. Bernstein

Aaron H. Crowell

David C. Kimball-Stanley

Clarick Gueron Reisbaum

220 5

Avenue

Floor

New York, NY 100001

Counsel for Amicus Appellee The Protect Democracy

Project

Omeed Alerasool

Justin Baxenberg

Daniel J. Cohen

Uzoma N. Nkwonta

Elias Law Group

250 Massachusetts Avenue NW

Suite 400

Washington, DC 200001

Counsel for Intervenor Appellees Democratic

Senatorial Campaign Committee and Democratic

Congressional Campaign Committee

Seth P. Waxman

Wilmer Cutler Pickering Hale & Dorr

2100 Pennsylvania Avenue NW

Washington, DC 20037

Counsel for Intervenor Appellee Democratic National

Committee

OPINION OF THE COURT

AMBRO, Circuit Judge,

Pennsylvania, like all other States, has devised a web of

rules that qualified voters must follow to cast a ballot that will

be counted. Mail-in and absentee voters, for their part, must

sign and date the declaration printed on the return envelope

containing their mail ballot. The date requirement, it turns out,

serves little apparent purpose. It is not used to confirm timely

receipt of the ballot or to determine when the voter completed

it. But the Supreme Court of Pennsylvania ruled that dating

the envelope is mandatory, and undated or misdated ballots are

invalid under its state law and must be set aside.

We must decide whether federal law nonetheless

requires those non-compliant ballots be counted. Section

10101(a)(2)(B) of the Civil Rights Act of 1964, called the

Materiality Provision, prohibits denial of the right to vote

because of an “error or omission” on paperwork “related to any

application, registration, or other act requisite to voting,” if the

mistake is “not material in determining whether [an] individual

is qualified” to vote. Because the date requirement is irrelevant

to whether a vote is received timely, the blink response is to

believe a voter’s failure to date a return envelope should not

cause his ballot to be disqualified. But our role restricts to

interpreting a statute, and there we hold that the Materiality

Provision only applies when the State is determining who may

vote. In other words, its role stops at the door of the voting

place. The Provision does not apply to rules, like the date

requirement, that govern how a qualified voter must cast his

ballot for it to be counted. We reach this conclusion because a

contrary approach cannot be reconciled with the text and

historic backdrop of the statute, nor cabined to the date

requirement while leaving intact other vote-casting rules that

serve valid state interests. Accordingly, we reverse the District

Court’s decision and remand for further consideration of the

pending equal protection claim.

I. Background

The federal law at the heart of this case—the Materiality

Provision of the Civil Rights Act of 1964—today reads as

follows:

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 on any record or paper relating

to any application, registration, or other act requisite

to voting, if such error or omission is not material in

determining whether such individual is qualified under

State law to vote in such election.

52 U.S.C. § 10101(a)(2)(B). It was part of Congress’ effort to

“outlaw[] some of the tactics” used by States “to disqualify

[African Americans] from voting in federal elections.” South

Carolina v. Katzenbach, 383 U.S. 301, 313 (1966). Despite

the promises of the Fifteenth Amendment that “[t]he right of

citizens of the United States to vote shall not be denied or

abridged . . . on account of race, color, or previous condition of

servitude,” U.S. Const. amend. XV, § 1, discriminatory laws

like poll taxes, literacy tests, property qualifications, and “good

morals” requirements abounded after its ratification,

Katzenbach, 383 U.S. at 313. African American voter

registration in many Southern States thus languished at

“appallingly low” levels for decades. Brnovich v. Democratic

Nat’l Comm., 594 U.S. __, 141 S. Ct. 2321, 2330 (2021).

One of the many techniques used to keep Black voters

from the polls was to reject would-be registrants for

insignificant, hyper-technical errors in filling out application

forms. Report of U.S. Comm’n on Civil Rights (“CRC

Report”) 1963, at 22. For instance, registrars rejected

applicants for failing “to calculate [their] age to the day,”

misspelling “Louisiana,” underlining “Mr.” when it should

have been circled, or the Catch 22 of identifying their skin

color as “Negro” instead of “brown,” or “brown” instead of

“Negro.”

Voter registration thus was the principal means to

suppress Black voter participation.

Congress, in 1957 and 1960, passed two civil rights acts

to rein in some of these practices, but “[e]fforts to deny the

right to vote” continued to “take many forms,” most often

through “arbitrary registration procedures” individuals had to

follow to qualify to vote. CRC Report of 1961, at 133, 137. A

few years later, Congress again took aim at these entrenched

CRC Report of 1961, at 137; Hearings on S. 1731 and S. 1750

Before the S. Comm. on the Judiciary, 88th Cong. 101 (1963)

(statement of Robert F. Kennedy, U.S. Att'y Gen.); see also 110

Cong. Rec. 6715-16 (1964) (statement of Sen. Kenneth B.

Keating) (recounting similar rejections); 110 Cong. Rec. 6733

(1964) (statement of Sen. Philip A. Hart); id. at 6530 (statement

of Sen. Hubert Humphrey); id. at 1693-94 (statement of Rep.

Emanuel Celler).

problems. In Title I of the Civil Rights Act of 1964, it

prohibited the arbitrary application of voter qualification

standards and procedures and barred literacy tests as a

qualification for voting in federal elections. Pub. L. No. 88-

352, § 101(a)(2)(A), (C). Surrounded by these provisions, the

Materiality Provision of the 1964 Act applied only to federal

elections, id. § 101(a)(2)(B), but the Voting Rights Act of 1965

expanded its reach to state elections as well. Pub. L. 89-11,

§ 15(a), 79 Stat. 437, 444 (1965).

Fast forward to today. Voter registration now is a

streamlined process often requiring little more than a few

clicks on a website or a trip to a driver’s license center. In

Pennsylvania, an individual is qualified to vote if that person

(1) is at least eighteen years old on the day of the election, (2)

has been a U.S. citizen for at least one month before that day,

(3) has resided in Pennsylvania and the election district for at

least thirty days, and (4) has not been imprisoned for a felony

conviction within the last five years. Pa. Const. art. VII, § 1;

25 P.S. § 2811, 25 Pa.C.S. § 1301(a). Each county board of

elections assesses compliance with these requirements when

the individual seeks to register to vote. 25 Pa.C.S. § 1328.

Approved applicants receive a unique identification number in

the Statewide Uniform Registry of Electors (“SURE”)

system—Pennsylvania’s database of all registered voters—and

an identification card. Id. §§ 1328.1, 1222.

In 2019, Pennsylvania also made voting more

convenient by adopting universal mail-in voting. Act of Oct.

31, 2019, P.L. 552, No. 77, § 8; see 25 P.S. § 3150.11(a).

Registered voters now can cast their vote by submitting a mail-

in ballot without having to show cause why they cannot make

it to the polls on Election Day. To do so, a registered voter

must apply to his county election board and provide, among

other things, his name, address, date of birth, proof of

identification, and length of residency in the voting district. Id.

§ 3150.12. The county board reviews the application, verifies

the proof of identification, and compares the information with

that on the applicant’s registration card housed in county-

specific voter rolls within the SURE system. Id. § 3150.12b(a).

Once approved, the voter receives a package containing the

ballot, a secrecy envelope, and a pre-addressed return

envelope. Id. § 3150.14; App. 57. The return envelope is

specific to each voter and features a declaration as well as a

unique barcode that allows the county board to track each

ballot. 25 P.S. § 3150.14; see also App. 58, 80. After

completing the ballot, the voter places it into the secrecy

envelope, and places that envelope into the return envelope. 25

P.S. § 3150.16(a).

Among the rules a mail-in voter must follow for his mail

ballot to be valid—central to the dispute here—is

Pennsylvania’s requirement to “fill out, date and sign the

declaration printed on [the] envelope” before returning the

completed ballot. Id. § 3150.16(a). But, it may surprise, the

date on the declaration plays no role in determining a ballot’s

timeliness. That is established both by a receipt stamp placed

on the envelope by the county board and separately through

scanning of the unique barcode on the envelope. App. 58, 80;

see 25 P.S. §§ 3150.17(b)(5), 3146.9(b)(5).

Until recently, the Materiality Provision received little

attention from federal appellate courts. When it did, the

challenged state law prescribed rules governing voter

registration. See Schwier v. Cox, 439 F.3d 1285, 1286 (11th

Cir. 2006) (affirming District Court determination that Georgia

statute requiring applicants to disclose Social Security Number

on registration form violated Materiality Provision); Fla. State

Conf. of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1173 (11th

Cir. 2008) (reversing grant of preliminary injunction and

holding Florida voter registration statute imposing a new

verification process as a precondition of registration for first-

time registrants did not violate Materiality Provision);

Vote.Org v. Callanen, 89 F.4th 459, 485-91 (5th Cir. 2023)

(holding Texas law requiring an original signature on a voter

registration form did not violate Materiality Provision).

But in the November 2020 and November 2022

elections, thousands of Pennsylvania mail-in voters did not

comply with the date requirement. Some voters omitted the

date altogether, others put shortened or obviously incorrect

dates. As county boards took different approaches to enforcing

the date requirement, litigation began, and the Materiality

Provision took center stage. A panel of this Court ruled this

federal law does apply outside the voter registration context

and was violated by the date requirement now (again) before

us. See Migliori v. Cohen, 36 F.4th 153, 157 (3d Cir. 2022).

But that decision has since been vacated as moot by the

Supreme Court. Ritter v. Migliori, 143 S. Ct. 297 (2022).

The validity of enforcing the date requirement thus

remained uncertain as a matter of federal law. But the Supreme

Court of Pennsylvania soon settled the issue for state law

purposes. See Ball v. Chapman, 289 A.3d 1, 20-23 (Pa. 2023).

It unanimously agreed the command in Pennsylvania’s

Election Code that mail-in voters “shall . . . date” the

declaration was “unambiguous and mandatory” as a matter of

statutory interpretation; so omitting the date, or incorrectly

dating the return envelope, “render[s] a ballot invalid” under

Pennsylvania law. Id. at 20-22. The Court also rejected the

argument that a declaration with an incorrect date was

“sufficient,” reasoning that “[i]mplicit in the Election Code’s

textual command . . . is the understanding that ‘date’ refers to

the day upon which an elector signs the declaration.” Id. at 22.

So, under Pennsylvania law, non-compliant ballots are invalid.

The Court evenly divided, however, on whether failing to

count non-compliant ballots violated the Materiality Provision.

Id. at 9. That question thus was bound to return to us.

Shortly after the Ball order, five individuals whose

ballots were not counted during the November 2022 election,

along with the Pennsylvania State Conference of the NAACP

(“NAACP”) and other voting organizations,

brought this suit

under 42 U.S.C. § 1983 against all 67 Pennsylvania county

boards of elections and the Secretary of the Commonwealth of

Pennsylvania (“Secretary”), claiming enforcement of the date

requirement violated the Materiality Provision and the equal

protection clause of the Fourteenth Amendment. The

Republican National Committee and other entities affiliated

with it (“RNC”) intervened as Defendants.

The NAACP joined efforts with the League of Women Voters

of Pennsylvania, Philadelphians Organized to Witness,

Empower and Rebuild, Common Cause Pennsylvania, Black

Political Empowerment Project, and Make the Road

Pennsylvania. For convenience, they are collectively referred

to as “NAACP,” and with the individual plaintiffs as

“Plaintiffs.”

On cross-motions for summary judgment,

the District

Court determined the Plaintiffs lacked standing to bring their

equal protection claim against all county boards of election and

their Materiality Provision claim against 55 of them. It thus

dismissed those counties on standing grounds. But the Court

ruled the Plaintiffs had standing to sue the remaining 12 county

boards and the Secretary, and granted summary judgment for

the Plaintiffs on their Materiality Provision claim. It declared

that rejecting timely received mail ballots because of missing

or incorrect dates violated the Materiality Provision and

permanently enjoined the Secretary from directing counties to

exclude ballots on that basis. The Court also dismissed the

equal protection claim against the Secretary on constitutional

avoidance grounds, explaining “there [wa]s no need to reach”

that issue given the Court’s resolution of the statutory question.

App. 7, 88. (The NAACP did not appeal the District Court’s

rulings on that claim or on standing.).

The District Court framed the Materiality Provision

issue as “whether Pennsylvania’s Date Requirement is material

to the act of voting”: “[I]f the error is not material to voting,

the requirement of placing a date on the Return Envelope

violates the Materiality Provision.” App. 74. The date

requirement, it reasoned, is immaterial by any measure. No

party disputed that election officials “did not use the

handwritten date . . . for any purpose related to determining” a

voter’s qualification under Pennsylvania law. App. 74-75, 81.

Moreover, it is “irrelevant in determining when the voter

The Secretary did not move for summary judgment, instead

filing a brief stating he did not oppose the Plaintiffs’ motion as

to the Materiality Provision but opposed it as to the equal

protection claim.

signed their declaration” or filled out the ballot. App. 79. Nor

is it used to determine the ballot’s timeliness because a ballot

is timely if received before 8:00 p.m. on Election Day, and

counties’ timestamping and scanning procedures serve to

verify that. Indeed, not one county board used the date on the

return envelope to determine whether a ballot was timely

received in the November 2022 election.

The District Court also disagreed with the RNC’s

argument that enforcement of the date requirement “does not

impinge on the right to vote” because the Materiality Provision

“only prohibits immaterial requirements affecting the

qualification and registration of a voter,” not additional

requirements for casting a ballot. App. 76. That interpretation,

in the Court’s view, was incompatible with the statute’s

expansive definition of “vote” to include “casting a ballot and

having [it] counted.” App. 77.

The RNC timely appealed. Richard Marino, who lost

his 2023 bid for reelection to the Towamencin Township Board

of Supervisors after the District Court ordered the counting of

non-compliant ballots, intervened.

The RNC and Marino

Appellees argue Mr. Marino’s challenge regarding the

application of the District Court’s order to his 2023 race is

moot because the results have been certified and his opponent

sworn into office. E.g., DNC Br. 50-53. Thus, they say, we

cannot “grant any effectual relief” if he prevailed here. Id. at

50 (citing Chafin v. Chafin, 568 U.S. 165, 172 (2013)). Under

Pennsylvania law, however, the results of an election may be

changed even after certification based on a “timely filed

election contest petition.” In re Contest of 2003 Gen. Election

for the Off. of Prothonotary, 849 A.2d 230, 235 (Pa. 2004);

obtained a stay of that order, and we expedited the appeal. The

Democratic National Committee and other entities affiliated

with it (“DNC”) intervened in support of the Plaintiffs-

Appellees. The Secretary, though a Defendant below, joins

Plaintiffs and the DNC in defending the District Court’s

decision on the Materiality Provision claim (“Appellees”).

With that important background in mind, we turn to the

merits.

RNC Br. 66. Mr. Marino filed such a petition, but the Court of

Common Pleas rejected his challenge as untimely (and thus

moot) and noted the ballots were counted consistent with the

District Court’s order. In re: Contest of Nov. 7, 2023 Election

of Towamencin Twp., No. 1482 C.D. 2023, slip op. at *8-9 (Pa.

Commw. Ct. Dec. 29, 2023). Mr. Marino appealed, and the

Commonwealth Court scheduled a hearing on both mootness

and the merits of his certification challenge for April 3, 2024.

See ECF No. 219. It thus is not “impossible” that he could

prevail, Chafin, 568 U.S. at 172, so his claim before us is not

moot.

II. Discussion

States have separate bodies of rules for separate stages

of the voting process. One stage, voter qualification, deals with

who votes. To register and thus be authorized to vote,

applicants must follow prescribed steps and meet certain

requirements. It’s like obtaining a license to drive. Another

stage deals with how ballots are cast by those previously

authorized to vote, which is governed by a different set of rules.

To cast a ballot that is valid and will be counted, all qualified

voters must abide by certain requirements, just like those

authorized to drive must obey the State’s traffic laws like

everyone else.

The Materiality Provision is an important federal overlay

on state election requirements during the “who” stage: voter

qualification. It prohibits States from denying an applicant the

right to vote based on an error or omission in paperwork

involving his application if that mistake is immaterial in

determining whether he is qualified to vote. That is, it is

triggered when conduct or laws restrict who may vote. But it

leaves it to the States to decide how qualified voters must cast

The District Court had jurisdiction under 28 U.S.C. § 1331.

28 U.S.C. § 1291 gives us appellate jurisdiction. We review

the District Court’s order granting summary judgment and

questions of statutory interpretation de novo. Ingram v.

Experian Info. Sols., Inc., 83 F.4th 231, 236 (3d Cir. 2023).

While Appellants provide several grounds for reversal,

we need consider only one: that Pennsylvania’s date

requirement does not violate the Materiality Provision. We

assume private plaintiffs can sue to enforce that federal law.

Migliori, 36 F.4th at 159-62; Vote.Org, 89 F.4th at 475-478.

a valid ballot. Pennsylvania has made one such rule—the date

requirement—mandatory. The federal Materiality Provision,

in our view, does not interfere.

It has five elements: (1) the proscribed conduct must be

engaged in by a person “acting under color of law”; (2) it must

have the effect of “deny[ing]” an individual “the right . . . to

vote”; (3) that denial must be attributable to “an error or

omission on [a] record or paper”; (4) the “record or paper”

must be “related to an[] application, registration, or other act

requisite to voting”; and (5) the error or omission must not be

“material in determining whether such individual is qualified

under State law to vote.” 52 U.S.C. § 10101(a)(2)(B); see also

Ritter v. Migliori, 142 S. Ct. 1824, 1825 (2022) (Alito, J.,

dissenting from denial of application for stay).

The first and third elements are not disputed here.

Pennsylvania’s county boards of elections are state actors, and

neither party argues that a missing or incorrectly dated mail-in

envelope is not an “error or omission on [a] record or paper.”

Judge Chung notes the possibility that the phrase “because of

an error or omission” does more work than the parties

argue. 52 U.S.C. § 10101(a)(2)(B). For instance, facially non-

compliant mistakes that render a ballot defective under state

law might be “defects.” Accordingly, one might say these

facially non-compliant ballots are not counted “because of” a

defect rather than “because of an error or omission.” Undated

envelopes may fall into this category since the statute imposes

a duty on the voter to date the declaration, 25 P.S. § 3146.6(a),

and the Supreme Court of Pennsylvania has concluded the

requirement is mandatory, Ball, 289 A.3d at 20-21. In

comparison, improperly dated envelopes might be considered

But does the declaration on the envelope in which the ballot

travels “relat[e] to an[] application, registration, or other act

requisite to voting”? And what of the requirement that “such

error or omission” must not be “material in determining

whether such individual is qualified under State law to vote”?

Also, is a voter “den[ied] the right . . . to vote” if his ballot is

not counted for failing to abide by state ballot-casting rules?

Read as a whole and in context, the text tells us the

Materiality Provision targets laws that restrict who may vote.

It does not preempt state requirements on how qualified voters

may cast a valid ballot, regardless what (if any) purpose those

rules serve.

imperfectly compliant ballots where electors have facially met

statutory requirements but have done so imperfectly, either by

error (e.g., using the previous year) or by omission (e.g.,

providing no year). Although the Court found that these

misdated envelopes were not “sufficient,” it analyzed the effect

of these mistakes separately from its consideration of undated

envelopes and pursuant to a different statute, 25 P.S.

§ 3146.8(g)(3) (providing election officials discretion to

determine sufficiency). See Ball, 289 A.3d at 20-23, Section

III(B)(1) (undated envelopes) and III(B)(2) (incorrectly dated

envelopes). Thus, not counting imperfectly compliant ballots

might be considered “because of an error or omission” rather

than a defect. This interpretation would not affect the

discounting of undated ballots, but it might result in requiring

incorrectly dated ballots to be counted if the dissent’s view of

paperwork were adopted. 52 U.S.C. § 10101(a)(2)(B).

To make sense of the Materiality Provision, we begin

with the part we think drives the interpretation of the rest of the

statute. For the statute to apply, the “error or omission” must

not be “material in determining whether such individual is

qualified under State law to vote . . . .” 52 U.S.C.

§ 10101(a)(2)(B) (emphasis added). At first glance, one might

think the date requirement fits neatly because the date on the

declaration bears no relation—it is immaterial—to whether a

voter is qualified under Pennsylvania law to vote, i.e., age,

citizenship, duration of residence, and so forth. And that is

what Appellees argue to us. See NAACP Br. 28-29; DNC Br.

24; Sec’y Br. 25-26.

But the text does not say the error must be immaterial

“to” whether an individual is qualified to vote. It uses the

words “in determining,” and that choice must mean something.

See Polselli v. IRS, 598 U.S. 432, 441 (2023) (“We ordinarily

aim to ‘give effect to every clause and word of a statute.’”

(quoting Microsoft Corp. v. i4i L.P., 564 U.S. 91, 106 (2011)).

Read naturally, we believe they describe a process—namely,

determining whether an individual is qualified to vote. So the

information containing an error or omission, material or not,

must itself relate to ascertaining a person’s qualification to vote

(like paperwork submitted during voter registration), and it is

only in that context that “officials are prohibited from using” a

mistake to deny ballot access unless it is “material ‘in

determining’ whether” the applicant indeed is qualified to vote.

See Ball, 289 A.3d at 38 (Brobson, J., concurring in part,

dissenting in part).

Words also take color from context. Other provisions

in subsection 10101(a)(2) that sandwich the Materiality

Provision give it meaning. The first—(a)(2)(A)—targets the

application of discriminatory standards, practices, or

procedures “in determining whether any individual is qualified

. . . to vote.” The second—(a)(2)(C)—bars literacy tests “as a

qualification for voting,” subject to some exceptions not

relevant here. The thrust of subsection (a)(2) in which the

Materiality Provision lives thus appears clear: it governs voter

qualification determinations.

And once that much is settled, we can readily make sense

of the phrase “record or paper relating to any application,

registration, or other act requisite to voting.” 52 U.S.C.

§ 10101(a)(2)(B). Everyone agrees dating the return envelope

does not relate to applying or registering to vote. Indeed, it is

far afield. But is it an “act requisite to voting”?

If those words take meaning from the words that

precede it—application or registration—the answer is no. But

Appellees claim the statutory definition of “vote” supplies an

unequivocal answer to the contrary. See NAACP Br. 35; DNC

Br. 19; Sec’y Br. 35. It includes “all action necessary to make

a vote effective[,] including, but not limited to, registration or

other action required by State law prerequisite to voting,

casting a ballot, and having such ballot counted and included

in the appropriate totals of votes cast[.]” 52 U.S.C. § 10101(e).

So, the argument goes, because “requisite” means “necessary,”

and the statutory definition of “vote” includes “having [a]

ballot counted,” the Materiality Provision unambiguously

applies here: dating the declaration on the return envelope is

“necessary” to having one’s ballot counted, and the envelope

is a paper related to that act.

But the words of a statute are not read in isolation;

statutory construction is a “holistic endeavor.” United Sav.

Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484

U.S. 365, 371 (1988). The phrase “act requisite to voting” also

draws its import from the context in which it appears. Because

the “in determining” phrase, as explained, makes clear the

Materiality Provision applies to determinations that affect a

voter’s eligibility to cast a ballot, its application necessarily is

limited to “record[s] or paper[s]” used in that process. And

Congress further signaled its focus on qualification

determinations by referring to acts like “application” and

“registration.” Those specific words limit the scope of the

relevant paperwork in a way that coheres with the statute’s

voter qualification focus. See Circuit City Stores, Inc. v.

Adams, 532 U.S. 105, 114-15 (2001) (“Where general words

follow specific words in a statutory enumeration, the general

words are construed to embrace only objects similar in nature

to those objects enumerated by the preceding specific words.”

(internal quotation marks omitted)).

Although we need not rely on legislative history, it too

supports confining the statute’s scope to paperwork used for

voter qualification determinations. Title I of the Civil Rights

Act of 1964, as we have detailed above, was one in a series of

federal efforts seeking to put an end to Southern States’ diverse

techniques “used to disqualify” African Americans from

voting. Katzenbach, 383 U.S. at 811; see also Browning, 522

F.3d at 1173 (describing enactment as a means to “sweep away

such tactics as disqualifying an applicant” by “inducing voter

generated errors that could be used to justify rejecting

applicants” (emphases added)).

Several statements in the Report issued by the House

Judiciary Committee that considered the legislation buttress

the Materiality Provision’s focus on “address[ing] the practice

of requiring unnecessary information for voter registration

with the intent that such requirements would increase the

number of errors or omissions on the application forms, thus

providing an excuse to disqualify potential voters.” Schwier,

340 F.3d 1284, 1294 (11th Cir. 2003) (emphases added); see

Robert A. Katzmann, JUDGING STATUTES 75 (2014)

(“Committee reports are among ‘the most authoritative and

reliable materials of legislative history.’” (citation omitted));

Anita S. Kirshnakumar, Dueling Canons, 65 Duke L.J. 909,

991-92 (2016). In the Report, the Committee declares that

“discriminatory use of literacy tests and other devices by

registration officials is dealt with … by the prohibition against

their disqualifying an applicant for immaterial errors or

omissions in papers requisite to voting in Federal elections.”

H.R. Rep. 88-914, title I (1963), reprinted in 1964

U.S.C.C.A.N. 2391, 2394 (emphases added).

And references to “registration” and its many

permutations abound. See id. (“[Section 10101(a) is designed

to [e]nsure nondiscriminatory practices in the registration of

voters …. (emphasis added)); id. at 2445-46 (noting Title I

would “provide for Federal determinations as to whether errors

or omissions in an application to register are material”

(emphasis added)); id. at 2490 (reporting the

“disproportionately low [African American] registration in

some counties” (emphasis added)). Supporters praised Section

10101(a) for countering “the intricate methods employed by

some … officials to defeat [African American] registration,”

like the “dilatory handling of [their] applications and failure to

notify applicants of results,” and “applying more rigid

standards of accuracy to [them] than white[s], thereby rejecting

[African Americans’] applications for minor errors or

omissions.” Id. at 2491 (emphases added). They noted

“registrars will overlook minor misspelling errors or mistakes

… by white applicants, while rejecting an [African

American’s] application for the same,” and explained the

amendment would require “registration officials,” among

other things, to “disregard minor errors or omissions if they are

not material in determining whether an individual is qualified

to vote.” Id. (emphases added). And testimony at the House

and Senate Judiciary Committee hearings detailed the myriad

discriminatory techniques local registrars used to reject

applications like, as noted, misspelling “Louisiana.” See n.1,

supra.

The legislative history shows the enacting Congress was

concerned with discriminatory practices during voter

registration, thus in line with what the text reflects. So, in our

view, the phrase “record or paper relating to application,

registration, or other act requisite to voting” is best read to refer

to paperwork used in the voter qualification process. It does

not cover records or papers provided during the vote-casting

stage.

Yet a separate reason leads us to conclude that a vote-

casting rule cannot violate the Materiality Provision: a voter

who fails to abide by state rules prescribing how to make a vote

effective is not “den[ied] the right . . . to vote” when his ballot

is not counted. “Casting a vote, whether by following the

directions for using a voting machine or completing a paper

ballot, requires compliance with certain rules.” Brnovich, 141

S. Ct. at 2338. States have legitimate interests in regulating the

voting process and in imposing restrictions on voters to

preserve “the integrity and reliability of the electoral process.”

Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 189-90

(2008). If state law provides that ballots completed in different

colored inks, or secrecy envelopes containing improper

markings, or envelopes missing a date, must be discounted,

that is a legislative choice that federal courts might review if

there is unequal application, but they have no power to review

under the Materiality Provision. And we know no authority

that the “right to vote” encompasses the right to have a ballot

counted that is defective under state law.

One may argue, as Appellees do, that the statutory

definition of “vote” as “having [a] ballot counted” means that

not counting a timely received mail ballot denies “the right to

vote.” Sec’y Br. 47; NAACP Br. 43. But the definition does

not get us far. Is that right “denied” when a ballot is not

counted because the voter failed to follow the rules, neutrally

applied, for casting a valid ballot? We doubt it is.

Consider that the enacting Congress in 1964 merely

cross-referenced the definition of “vote” from Title VI of the

Civil Rights Act of 1960, where Congress sought to protect

minorities’ access to the polls in States with “a pattern or

practice” of denying the right to vote on racial grounds. See

Pub. L. 86-449, 74 Stat. 86, 91-92, Title VI, § 601(a), codified

at 52 U.S.C. § 10101(e). It “authorized courts to register voters

in areas of systematic discrimination,” Katzenbach, 383 U.S.

at 313 (emphasis added), upon proof they were “denied” that

“opportunity,” 52 U.S.C. § 10101(e). That focus on denying

(and remedying denials of) the opportunity to register

strengthens our view that the phrase “deny the right . . . to vote”

in the Materiality Provision must be understood as denying an

individual the opportunity to access the ballot in the first

instance—not as denying the right to cast a defective ballot.

See Schwier, 340 F.3d at 1294 (“[The Materiality Provision]

forbids the practice of disqualifying potential voters for their

failure to provide information irrelevant to determining their

eligibility to vote.” (emphasis added)).

Returning to the 1960s, we think, illustrates that is what

Congress had in mind. It targeted States’ systematic

campaigns to subvert minorities’ access to the polls. Rejecting

applications to register for irrelevant mistakes was one of many

devices, like poll taxes or literacy tests, that resulted in outright

vote denial—many Black citizens never had a chance to cast

their ballot. See Shelby County v. Holder, 570 U.S. 529, 547

(2013). In enacting the Materiality Provision and other

prohibitions, Congress put an end to that. No longer could

States block ballot box access to an applicant who misspelled

a State’s name or failed to calculate correctly his birthday to

the day. But the Materiality Provision’s prohibitions end there.

States must still control the mechanics of the vote-casting

process. Once inside the voting place (where, in the 1960s,

nearly all voting took place), all voters must follow the same

rules for casting a valid ballot.

In our view, it makes no sense to read the Materiality

Provision to prohibit enforcement of vote-casting rules that are

divorced from the process of ascertaining whether an

individual is qualified to vote. “Indeed, they were not intended

for that purpose,” Ball, 289 A.3d at 38 (Brobson, J., concurring

in part, dissenting in part), and “[t]here is no reason why the

requirements that must be met in order to register (and thus be

‘qualified’) to vote should be the same as the requirements that

must be met in order to cast a ballot that will be counted,”

Ritter, 142 S. Ct. at 1825 (Alito, J.). Unless we cabin the

Materiality Provision’s reach to rules governing voter

qualification, we tie state legislatures’ hands in setting voting

rules unrelated to voter eligibility.

A few examples illustrate the point. Pennsylvania’s

Election Code requires that secrecy envelopes containing “any

text, mark or symbol which reveals the identity” of the voter

“be set aside and declared void.” 25 P.S. § 3146.8. An

improper mark on that envelope is a paperwork “error.” But

the error is not relevant (i.e., material) when a State ascertains

whether the voter is qualified to vote. On Appellees’ account,

the error thus must be disregarded, and the ballot counted.

Pennsylvania’s Election Code also requires that voters mark

their ballot using “the same pen or pencil,” or else it will be

voided and not counted. Id. § 3063(a). Filling out the ballot

with two different pens would likewise be a paperwork “error,”

and one that is not relevant to a voter’s eligibility. Under

Appellees’ approach, that rule too would be unenforceable.

The same goes for the rule against overvoting, which requires

excluding a ballot from the vote tally if a voter casts more votes

than permissible, id., the rule that a ballot must not be counted

if it is “impossible to determine [a voter’s] choice,” id., or the

requirement that mail-in voters “fill out” and “sign the

declaration” printed on the return envelope, id. § 3150.16.

There is no need to belabor this point further. The upshot

of Appellees’ theory is that the Materiality Provision would

preempt many such ballot-casting rules because none are

related to a voter’s qualification to vote. We thus think the

correct conclusion is that the Materiality Provision is

concerned only with the process of determining a voter’s

eligibility to cast a ballot.

It follows that individuals are not “denied” the “right to

vote” if non-compliant ballots are not counted. Suppose a

county board of elections excludes a voter’s ballot from the

vote tally because he cast more than the permissible number of

votes. Or it sets aside a ballot because the voter revealed his

identity by improperly marking the secrecy envelope

containing the ballot. Is that person denied the right to vote?

In both instances, the voter failed to follow a rule—like the

date requirement—that renders his ballot defective under state

law. We find it implausible that federal law bars a State from

enforcing vote-casting rules that it has deemed necessary to

administer its elections. See Ritter, 142 S. Ct. at 1824 (Alito,

J.) (“Even the most permissive voting rules must contain some

requirements, and the failure to follow those rules constitutes

the forfeiture of the right to vote, not the denial of that right.”).

The Materiality Provision’s textually apparent focus on

voter qualification determinations is Appellees’ Achilles’ heel.

Why? Because vote-casting rules like the date requirement

have nothing to do with determining who may vote. A voter

whose ballot is set aside because of a missing or incorrect date

on the return envelope, we know, “ha[s] previously been

determined to be eligible and qualified to vote in the election.”

App. 81.

In our view, the Materiality Provision does not reach

something as distinct from “registration” as the casting of a

mail ballot at the end of the voting process. The text does not

allow it. Even the statute’s definition of “vote” distinguishes

“casting a ballot” from what precedes it in time: “registration

or other action required by State law prerequisite to voting.”

52 U.S.C. § 10101(e). The date requirement is embedded in

the act of casting a ballot. Indeed, the provisions of

Pennsylvania’s Election Code where the date requirement

appears are captioned “Voting by mail-in electors” and

“Voting by absentee electors,” 25 P.S. §§ 3150.16, 3146.6, and

“set forth . . . requirements for how a qualified elector may cast

a valid absentee or mail-in ballot,” In re Canvass of Absentee

and Mail-in Ballots of Nov. 3, 2020 Gen. Elec., 241 A.3d 1058

(Pa. 2020) (emphasis added). “It is therefore awkward to

describe the act of voting as ‘requisite to the act of voting.’”

Ritter, 142 S. Ct. at 1826 n.2 (Alito, J.). And so an outer ballot

envelope falls outside the Materiality Provision’s scope.

The Pennsylvania General Assembly has decided that

mail-in voters must date the declaration on the return envelope

of their ballot to make their vote effective. The Supreme Court

of Pennsylvania unanimously held this ballot-casting rule is

mandatory; thus, failure to comply renders a ballot invalid

under Pennsylvania law. Ball, 289 A.3d at 20-23. We do not

read the Materiality Provision as overriding that

pronouncement by requiring that non-compliant ballots

nonetheless be counted.

III. The Dissent’s Position

Our colleague takes a different approach. Her dissent

reads each of the elements in isolation—consulting more than

half a dozen dictionary definitions—and then reassembles

them to conclude the Materiality Provision “covers mistakes

on any paperwork necessary for one’s ballot to count” and

requires those mistakes be ignored whenever they are “not

relevant to the State’s ability to ascertain whether he is

qualified under state law to vote.” Dissent Op. 19, 30-31, 34.

We part from that theory because what results is a statutory

provision Congress did not write with implications it did not

intend.

The dissent’s approach separates the Materiality

Provision into two and treats these parts as though one does not

inform the other. The phrase “if such error or omission is not

material in determining whether such voter is qualified under

State law to vote,” it says, identifies what types of errors cannot

be used to deny a voter the right to vote: any mistakes that are

not “relevant to the State’s ability to ascertain whether [an

individual] is qualified” to vote. Dissent Op. 15-16, 34. So

far, we’re onboard. But the dissent then divorces that phrase

from everything that comes before it. It does not read the “in

determining” phrase as necessarily referring to the process of

voter qualification, so it believes the types of “record[s] or

paper[s]” covered by the Materiality Provision extend far

beyond the paperwork submitted during voter registration.

Thus, an “error or omission” can occur on any “paperwork

necessary for one’s ballot to count” (echoing Appellees’

theory), and whether that mistake must be ignored depends on

whether it is relevant to ascertaining whether the voter is

qualified to vote.

But the “in determining” phrase that makes explicit the

Materiality Provision’s voter qualification focus is the tail that

wags the dog. It must confine the scope of “record[s] or

paper[s]” to those used at the qualification stage because the

dissent’s approach runs into the issue that our reading avoids:

“judg[ing] the validity of vot[e-casting] rules based on whether

they are material to eligibility.” Ritter, 142 S. Ct. at 1825

(Alito, J.). Think back to our driver’s license example. Could

you dispute a ticket for running a red light in Pennsylvania on

the ground that you have a valid driver’s license, and observing

this traffic law is not relevant to whether you are a resident of

the State, passed all licensing exams, are over eighteen years

old, and so forth? If that sounds confusing, that’s because it is.

Likewise, when a registered voter submits his mail-in

ballot, all that is left for election officials to do is to verify

whether it is valid, i.e., whether it complies with the State’s

vote-casting rules. Put differently, the dissent’s reading

ignores that vote-casting rules, as we have explained, serve

entirely different purposes than voter-qualification rules. It

makes little sense to block enforcement of laws meant to

protect the integrity of the voting process due to their

inescapable irrelevance in determining whether an individual

meets registration requirements.

The dissent appears to believe its approach would not

result in stymying enforcement of important vote-casting rules.

We have already provided a list of examples to illustrate the

practical consequences of adopting the dissent’s view, see

supra Part II.A, and its attempt to distinguish the date

requirement from those rules does not persuade us.

Our colleague tackles low-hanging fruit like state laws

about voting deadlines, polling locations, and the use of

secrecy envelopes, see Dissent Op. 21-22 n.17, explaining

none are covered by its reading of the Materiality Provision

because they do not involve “record[s] or paper[s].” We don’t

disagree. What troubles us is the dissent’s treatment of rules

about the ballot. Consider that Appellees, recognizing the

potentially sweeping implications of their position in this case,

have argued that the ballot is not a paper “requisite to voting,”

and so does not come within the Materiality Provision’s sweep.

See NAACP Br. 46; Sec’y Br. 55-56. But by elsewhere urging

that Congress was “concerned with protecting voters’ rights at

every step of the voting process,” and that the Materiality

Provision covers an outer ballot envelope because it is

“paperwork necessary for one’s ballot to count,” Dissent Op.

19, 30 (emphasis added), the dissent would have difficulty

explaining why that same logic does not apply to the ballot

itself. Of all the “paperwork required to vote,” the ballot seems

to us to be the most necessary to have one’s vote counted.

Moreover, excluding the ballot from the Materiality

Provision’s reach while including the envelope in which the

completed ballot travels—on the ground that one is “requisite

to voting” and one is not—counters commonsense. The

dissent thus concedes, as it must, that “good reason” exists to

conclude its interpretation brings into play state rules

concerning the ballot itself. Dissent Op. 36 n.27. But there is

nothing wrong with that, says our colleague, for no matter

Pennsylvania’s interest in its election laws, it simply was

“Congress’s goal” in 1964 “to restrain a State’s ability to

discard ballots cast by qualified voters.” Id. Legislative

history does not support that. To assert otherwise without any

indication from a Committee Report is judicially to rewrite

Congress’ stated intent.

To downplay the implications of its position, the dissent

briefly mentions the rule against overvoting, claiming it still

would be enforceable under its reading because “the State

could not determine the candidate for whom the voter intended

to vote.” Op. 36 n.27. In other words, there is a legitimate

reason for prohibiting overvotes. The dissent also claims its

interpretation would not “give license to bad actors who

attempt to exploit certain State election laws for improper

purposes,” such as “by having voters make errant marks on

ballots to signal the vote where such marks are prohibited by

State law.” Id. Why that is so it does not say. Presumably, the

dissent again believes these rules serve a legitimate purpose

while the date requirement does not. But the Materiality

Provision simply does not care whether a rule furthers

important state interests. It targets rules that require

unnecessary information during voter qualification processes

and prohibits disqualifying individuals making immaterial

errors or omissions in paperwork related to registration. It does

not prevent enforcement of neutral state requirements on how

voters may cast a valid ballot, no matter the purpose those rules

may serve.

Perhaps the dissent recognizes as much, as it argues the

declaration on the return envelope does in fact “play[] a role in

helping the State to determine that all mail-in voters [are]

qualified to vote,” and the signature “provides the name of the

voter” and thus a means “to determine whether the name is

associated with a qualified voter”—i.e., to ascertain his

identity. Dissent Op. 34-35 n.26, 38 & n.30. We do not see it

that way. Even if verifying a voter’s identity, in theory, is a

necessary step in determining an individual’s qualification to

vote, Pennsylvania does not, in practice, use the signature on

the declaration to do that. See In re Nov. 3, 2020 Gen. Election,

662 Pa. 718, 741-43 (Pa. 2020). Moreover, the declaration is

printed on an envelope a voter uses to submit—i.e., cast—his

mail ballot. It (the declaration) is not even remotely a form

used in Pennsylvania’s voter qualification process. The voter

who submits his mail-in package has already been deemed

qualified to vote—first, when his application to register is

approved and again when his application for a mail ballot is

accepted. See App. 81; NAACP Br. 30; 25 P.S.

§§ 3150.12b(a), 2811; 25 Pa.C.S. § 1301(a). Moreover, in

signing and dating the declaration, the voter merely attests that

he is “qualified to vote in this election,” “ha[s] not already

voted,” “marked [his] ballot in secret,” and “understand[s] [he

is] no longer eligible to vote at [his] polling place after”

returning the voted ballot. App. 58. That signed and dated

attestation is used to determine whether the ballot is validly

cast, not whether the individual is qualified under state law to

vote.

Our dissenting colleague grounds her rationale for

reading the Materiality Provision to extend to all “paperwork

required to vote”—and thus to ensnare a ballot return

envelope—in Congress’ use of “act requisite to voting” and the

statute’s broad definition of “vote.” We address a few points

here.

To be sure, there is an argument that limiting the phrase

“record or paper relating to any application, registration, or

other act requisite to voting” to paperwork submitted during

registration or similar processes renders “other act requisite to

voting” superfluous. Dissent Op. 21. Sometimes, “no matter

how” we read a statute, “there will be redundancies.” Bobb v.

Att’y Gen., 458 F.3d 213, 223 (3d Cir. 2006) (citation omitted).

And reading the Materiality Provision as the dissent does—i.e.,

it simply refers to “paperwork required to vote”—would also

render language superfluous; namely, the deliberate references

to “registration” and “application.” Why did Congress list

these specific procedures when it just as easily could have said

the Materiality Provision applies to “any record or paper

relating to an act requisite to voting”? The dissent’s reading

ignores not just the limiting effect of “application” and

“registration” but also the import of the voter qualification

focus in the “in determining” phrase that follows.

The dissent claims support in legislative history for

interpreting the phrase to cover “more than registration-related

papers.” Dissent Op. 21, 23-27 & n.19. It accepts that the

enacting Congress was concerned with “the threshold

problem” of “discriminatory practices in voter registration.”

Id. at 25 n.19, 27. But rather than limiting the statute’s reach

accordingly, the dissent believes it can expand it because

“Congress’s concerns about voter discrimination did not

vanish after registration.” Id. at 27. No doubt those concerns

existed after Congress passed the Civil Right Act of 1964.

They led the following year to enactment of the landmark

Voting Rights Act of 1965. But before us today is the statutory

interpretation of the Materiality Provision. Even our

colleague’s own account of that law’s historic record consists

of nothing but instances of discriminatory and arbitrary

practices during registration. See id. at 24-26 n.19. That is

what Congress meant to address and what the text reflects.

We close this segment by commenting on the dissent’s

conclusion that a voter whose ballot is not counted for omitting

or incorrectly dating the return envelope is “denied the right

. . . to vote.” Citing the statute’s definition of “vote” as

including “having [a] ballot counted,” the dissent believes

setting aside non-compliant ballots deprives affected voters of

their right to vote. Dissent Op. 16-17, 37-38. We have already

explained why, in our view, the definition does not help much,

as voters must still follow certain rules to make their vote

effective. See supra Part II.A. The dissent’s response is

circular. It acknowledges that “States have the authority to set

neutral requirements for voting.” Id. at 17 n.13. But, it claims,

if “a state requirement denies an individual the right to vote in

an election due to an inconsequential paperwork error or

omission of the type captured by the Materiality Provision,

then the state rule cannot be used to disqualify a vote.” Id.

That just begs the question at the heart of this case: Does the

Materiality Provision (a federal override for determining voter

qualification) cover the date requirement (a Pennsylvania vote-

casting rule)?

* * * * *

Confining the role of the Materiality Provision to

qualification determinations places its parts into a whole that

can be squared with the statute’s text, context, and historic

backdrop. It prohibits turning away otherwise eligible

individuals based on errors or omissions in supplying

information that is not material in determining whether they

are qualified to vote. This removes unnecessary barriers

blocking access to the voting place. But it lets States decide

the rules that must be followed to cast a valid ballot.

Pennsylvania’s date requirement, regardless what we may

think of it, does not cross over to a determination of who is

qualified to vote, and the Materiality Provision likewise does

not cross over to how a State regulates its vote-casting process.

Because we hold the date requirement for casting a mail-

in ballot is not covered by, and thus does not violate, the

Materiality Provision, we reverse the District Court’s order and

remand for it to consider the merits of the Plaintiffs’ equal

protection challenge.

SHWARTZ, Circuit Judge dissenting.

In the 1950s and 1960s, Congress set out to guarantee

all eligible Americans the right to vote. It investigated,

legislated, and, when its efforts fell short, enacted “sterner and

more elaborate measures” to eliminate barriers to voting.

South Carolina v. Katzenbach, 383 U.S. 301, 309 (1966). One

such measure was to ensure that States’ immaterial voting

requirements did not prevent otherwise qualified voters from

registering to vote, casting ballots, and having their votes

counted. Congress did so, in part, through the Civil Rights Act

of 1964 as amended by the Voting Rights Act of 1965, in which

it enacted what is now codified as 52 U.S.C. §10101(a)(2)(B)

(the “Materiality Provision”). This law forbids State actors

from denying voters the right to vote in any election due to

errors or omissions on required paperwork when such mistakes

do not affect the State’s ability to determine the voters’

qualifications to vote.

More than one million Pennsylvania voters mailed in

their ballots in the November 2022 election. Of them, 10,000

timely-received ballots were not counted because they did not

comply with the State law requirement that the voters’

declarations (‘the declarations”) on the mailing envelopes

include a date below the voter’s signature,

Ball v. Chapman,

The words “paperwork” and “document” refer to any

record or paper covered by the Materiality Provision. The

word “mistake” refers to the errors and omissions covered by

the Materiality Provision.

These voters either omitted the date, wrote an

incomplete date, or recorded an incorrect date below their

signatures. Examples of erroneous dates include dates that

284 A.3d 1189, 1192 (Pa. 2022) (per curiam), even though the

date on the envelope is not used to (1) evaluate a voter’s

statutory qualifications to vote, (2) determine the ballot’s

timeliness, or (3) confirm that the voter did not die before

Election Day or to otherwise detect fraud.

Some of those voters, and organizations representing

similar interests (“Plaintiffs”), sued the Secretary of the

Commonwealth of Pennsylvania and county boards of

elections to have their ballots counted, contending that the

exclusion of those ballots denied those voters their right to vote

only had the month and day but no year, or with a month and

year but no day, dates that listed a year in the past or in the

future, dates that were likely the voter’s birth date, and dates

written using the European style of day/month/year.

under federal law.

The District Court agreed, granted

Plaintiffs’ motion for summary judgment,

and ordered that

Plaintiffs are correct that 42 U.S.C. § 1983 provides

them a private right of action to enforce the Materiality

Provision. Vote.Org v. Callanen, 89 F.4th 459, 478 (5th Cir.

2003) (holding that “a remedy for [§] 10101 violations [may

be sought] by way of [§] 1983”); Schwier v. Cox, 340 F.3d

1284, 1297 (11th Cir. 2003) (concluding that § 10101 “may be

enforced by a private right of action under § 1983”); but see

Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 630

(6th Cir. 2016) (stating that § 10101 could not be enforced

under § 1983 based on cases relying on a district court opinion

that had no allegation of state action and did not discuss §

1983).

Applying the test announced in Gonzaga University v.

Doe, 536 U.S. 273 (2002), despite having some doubt that it

applies to civil rights claims, see id. at 279-83 (justifying the

test based on “confusion” stemming from noncivil rights

cases), Plaintiffs may use § 1983 seek relief. Under Gonzaga,

a plaintiff must show that the law he claims has been violated

creates a personal right. Three Rivers Ctr. for Indep. Living v.

Hous. Auth. of Pittsburgh, 382 F.3d 412, 421-22 (3d Cir.

2004). To determine whether a statute gives rise to a personal

right, we consider whether: (1) Congress intended that the

statute benefit the plaintiff; (2) the plaintiff has shown that the

right is “not so vague and amorphous that its enforcement

would strain judicial competence”; and (3) the statute imposes

a binding obligation on the State, which may be shown by its

couching of the right “in mandatory, rather than precatory,

terms.” Blessing v. Freestone, 520 U.S. 329, 340-41 (1997)

(internal quotation marks and citations omitted). Once the

plaintiff establishes such a right, then there is a rebuttable

presumption that the plaintiff may enforce that right via § 1983.

Id. at 341; see also Health and Hosp. Corp. of Marion Cnty. v.

Talevski, 599 U.S. 166, 186 (2023) (same). Plaintiffs have

established there is a personal right in § 10101, and the

presumption has not been rebutted.

First, § 10101 embodies a right, which the parties do not

dispute, as the first subsection of the statute provides that all

qualified citizens “shall be entitled and allowed to vote.” 52

U.S.C. 10101(a)(1). This subsection, and the Materiality

Provision itself, benefit a voter. Moreover, the right embodied

in the statute is not “vague and amorphous,” and the statute “is

couched in mandatory terms,” Blessing, 520 U.S. at 340, in that

it provides that no State actor “shall . . . deny the right of any

individual to vote[.]” 52 U.S.C. § 10101(a)(2)(B); cf.

Wisniewski v. Rodale, Inc., 510 F.3d 294, 302 (3d Cir. 2007)

(“[A]n explicit reference to a right and a focus on the individual

protected . . . suffices to demonstrate Congress’s intent to

create a personal right.”). Therefore, § 10101 creates a

personal right.

Second, Appellants have not rebutted the presumption

that the right is enforceable and that a remedy can be secured

via § 1983 because Congress did not (1) expressly foreclose

the use of § 1983, or (2) create a comprehensive enforcement

scheme incompatible with individual enforcement. Gonzaga,

536 U.S. at 284 n.4. Here, Appellants argue that § 10101(c)

contains an “elaborate enforcement scheme,” as it permits

private individuals to seek a declaration that they are entitled

to vote only after the Attorney General prevails in a lawsuit

showing that a State actor engaged in a pattern or practice of

discrimination. 52 U.S.C. § 10101(c), (e). This, however, is

not the only remedy available to private plaintiffs. Congress

specifically provided federal courts with jurisdiction over §

10101 claims and gave the “party aggrieved,” i.e., the

aggrieved voter, the right to bring suit without exhausting other

remedies. See 52 U.S.C. § 10101(d). This means that an

individual need not await any action by the Attorney General,

or a finding of a pattern or practice of discrimination, before

seeking to enforce his rights under the statute. As a result, the

statute does not embody a comprehensive scheme for relief

incompatible with individual enforcement.

Furthermore, the 1957 Civil Rights Act specifically

added the aggrieved person/no exhaustion provision at the

same time it gave the Attorney General civil enforcement

authority. Civil Rights Act of 1957, Pub. L. No. 85-315, § 131,

71 Stat. 634, 637 (1957). It would be inconsistent to read the

statute to remove one roadblock to private suits (exhaustion

requirements) and simultaneously erect another by allowing

private persons to obtain relief only when the Attorney General

chooses to bring (and wins) a pattern and practice suit. See

Schwier, 340 F.3d at 1295-96; see also Morse v. Republican

Party of Virginia, 517 U.S. 186, 213, 230-34 (1996) (holding

the Voting Rights Act “only authorizes enforcement

proceedings brought by the Attorney General and does not

expressly mention private actions,” but nevertheless “Congress

must have intended [] to provide private remedies”); United

States v. Mississippi, 380 U.S. 128, 137 (1965)

(acknowledging “private persons might file suits under §

[10101]”). Thus, because § 10101 does not provide a

comprehensive enforcement scheme that is inconsistent with a

plaintiff’s ability to seek relief under § 1983, Plaintiffs have a

private of right action and can sue under § 1983.

Although Plaintiffs asserted in their complaint that §

10101 contains an implied right of action, they did not do so

before us. Nonetheless, there is textual support for concluding

such an implied right of action exists. To determine whether

an implied right of action exists, courts consider whether (1)

plaintiff was the beneficiary of the statute, (2) the text indicates

that the statute created a remedy, (3) implying the remedy is

consistent with the legislative scheme, and (4) the implied

cause of action is in an area not traditionally relegated to state

law such that it would be inappropriate to infer a federal cause

of action. See S. Camden Citizens in Action v. N.J. Dep’t of

Env’t Prot., 274 F.3d 771, 777 n.4 (3d Cir. 2001) (quoting West

Virginia Univ. Hosps., Inc. v. Casey, 885 F.2d 11, 18 n.1 (3d

Cir. 1989) (citing Cort v. Ash, 422 U.S. 66, 78 (1975))). Each

of these considerations support concluding that § 10101

contains an implied private right of action. First, because the

statute directs State actors not to deny an individual the right

to vote, the beneficiary of the statute is the voter. The statute

also instructs federal district courts to accept suits from a “party

aggrieved” regardless of whether that party has exhausted

administrative remedies. 52 U.S.C. § 10101(d). This conveys

that Congress intended that voters whose rights were denied be

permitted to immediately come to court. Second, following a

finding that a wrongdoer engaged in a pattern or practice of

voter discrimination, the statute provides an avenue for a voter

to obtain declaratory relief. Although Congress identified this

declaratory relief in a particular circumstance, the text’s

reference to allowing courts to consider suits by aggrieved

persons without satisfying administrative or other prerequisites

shows that the statute does not limit aggrieved parties to

seeking only such relief. Third, allowing a voter to bring suit

for violations of the statute is consistent with the text and

legislative scheme. Fourth, although the statute covers election

activity, including State elections subject to state law, it serves

the purpose of ensuring that State actors do not misuse state

law to deny a voter the right to have their vote counted, a right

Congress explicitly extended to voters in State elections in the

Voting Rights Act of 1965. Therefore, there are reasons to

conclude that § 10101 has an implied right of action.

Amicus curiae Alabama and sixteen other States (the

“Seventeen States”) contend that § 1983 cannot apply here. No

party made such an argument and amici are generally not

permitted to inject new issues into an appeal, “at least in cases

where the parties are competently represented by counsel.”

New Jersey Retail Merchs. Ass’n v. Sidamon-Eristoff, 669

F.3d 374, 382 n.2 (3d Cir. 2012) (quoting Universal City

Studios, Inc. v. Corley, 273 F.3d 429, 445 (2d Cir. 2001)

(citation omitted)). Nevertheless, I will address it. The

Seventeen States argue that Plaintiffs may not rely on § 1983

to enforce § 10101 because Gonzaga requires that § 1983 can

only be used to enforce new rights that Congress creates and

that statutes promulgated under § 5 of the Fourteenth

Amendment and § 2 of the Fifteenth Amendment can only

create remedies. This is incorrect for at least three reasons.

First, the Gonzaga Court itself approvingly noted that

the Supreme Court had previously “recognized, for example,

that Title VI of the Civil Rights Act of 1964” (which prohibits

discrimination in federally assisted programs, Pub. L. No. 88-

352, 78 Stat. 241, 252-53 (1964)) “creat[ed] individual rights.”

536 U.S. at 284 (citation omitted). Thus, it cannot be that the

Court was ruling that legislation enacted pursuant to the

Fourteenth Amendment cannot satisfy the Gonzaga test as the

Court used the Civil Rights Act of 1964, which was

promulgated in part based on the Fourteenth Amendment, as

an example of a statute that can create rights.

Second, the implications of the Seventeen States’s

position illustrate why it is wrong. Under their theory, (1) all

§ 1983 actions for statutory violations require the underlying

statute to confer a new right, (2) statutes enacted pursuant to

the Fourteenth and Fifteenth Amendments cannot establish

new rights, and (3) together this means that no federal civil

rights law enacted pursuant to those Constitutional

Amendments are enforceable by private action unless the

statute includes an express cause of action. Adopting the

Seventeen States’s theory would: (1) eliminate almost all

avenues to enforce the civil rights laws promulgated pursuant

to the enforcement clauses of the Fourteenth and Fifteenth

Amendments; (2) ignore that Congress enacted many civil

rights laws without including an express private right of action

“against a backdrop of decisions in which implied causes of

action were regularly found[,]” Morse, 517 U.S. at 213, 231

(internal quotation marks and citation omitted); and (3) be

inconsistent with the purpose of § 1983, which Congress

enacted to enforce the civil rights laws against State actors, see,

e.g., Talevski, 599 U.S. at 176-77; Lugar v. Edmondson Oil

Co., 457 U.S. 922, 934 (1982) (noting Congress viewed § 1983

as a mechanism for private plaintiffs to enforce the rights

embodied in the Reconstruction Amendments); Lynch v.

Household Fin. Corp., 405 U.S. 538, 545 (1972) (“The broad

concept of civil rights embodied . . . in the Fourteenth

Amendment is unmistakably evident in the legislative history

of § 1 of the Civil Rights Act of 1871, 17 Stat. 13, the direct

lineal ancestor of §[] 1983[.]”).

Third, Gonzaga developed the rights-creation test to

clarify “confusion” that the Court thought had resulted from

several of its earlier ruling. Gonzaga, 536 U.S. at 279-83.

However, the cases it cited as giving rise to “confusion” all

such ballots be counted in the twelve counties over which the

Court had Article III jurisdiction.

Pennsylvania State Conf. of

arose outside of the civil rights context. See id. Therefore, it

follows that Gonzaga’s test was crafted to examine cases where

plaintiffs seek to use § 1983 to enforce a right arising outside

of the civil rights context.

The Purcell doctrine, which disfavors courts providing

election-related relief in the weeks before an election, does not

counsel against deciding this dispute. First, the doctrine is

often invoked to ensure that courts avoid deciding matters that

could result in “voter confusion” and cause voters to “remain

away from the polls.” Purcell v. Gonzalez, 549 U.S. 1, 4-5

(2006) (per curiam); see also Republican Nat’l Comm. v.

Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020) (per

curiam) (“[W]hen a lower court intervenes and alters the

election rules so close to the election date, our precedents

indicate that this Court, as appropriate, should correct that

error.”). Here, the District Court’s ruling occurred after the

polls closed. Second, the District Court’s ruling occurred well

before any upcoming election, providing ample time for voters

to plan how they would like to vote. Third, the District Court’s

order affected election officials, not voters, and provided clear

guidance about whether to count certain mail-in ballots. Thus,

ruling in this case did not present any risk voter confusion.

The District Court’s remedy, which was limited to

twelve counties based on its Article III jurisdiction,

Pennsylvania State Conf. of NAACP v. Schmidt, No. 1:22-cv-

00399, 2023 WL 8091601, at *35-36 (W.D. Pa. Nov. 21,

2023), did not violate the Equal Protection Clause. Two

Supreme Court cases tell us why. In Katzenbach v. Morgan,

the Supreme Court held that a federal law that required the

States to grant voting rights to non-English speakers who

attended schools in Puerto Rico that taught predominantly in a

non-English language, but not to non-English speakers who

attended schools beyond the territorial limits of the United

States, did not violate the Equal Protection Clause. 384 U.S.

641, 654-58 (1966). The Court upheld the law because it “d[id]

not restrict or deny the franchise but in effect extend[ed] the

franchise to persons who otherwise would be denied it by state

law.” Id. at 657. Likewise, in McDonald v. Board of Election

Commissioners, the Court considered an Illinois law that

allowed for absentee voting in certain circumstances, including

where a voter would be absent from his resident county on

Election Day. 394 U.S. 802, 803 (1969). Plaintiffs, who were

pre-trial detainees in their county of residence, alleged that the

law violated the Equal Protection Clause because it permitted

pre-trial inmates at jails located outside of their counties of

residence to vote absentee, while the plaintiffs were excluded

from doing so. Id. at 803, 806. The Court concluded that the

“different treatment” afforded to similarly situated voters in

different counties did not give rise to an Equal Protection

Clause violation, in part because expanding voting to people

who otherwise would not be entitled to it “should not render

void [the] remedial legislation, which need not . . . ‘strike at all

evils at the same time.’” Id. at 810-11 (quoting Semler v.

Dental Exam’rs, 294 U.S. 608, 610 (1935)). Thus, under

Morgan and McDonald, remedies that fall short of extending

voting rights to all similarly situated individuals do not violate

the Equal Protection Clause, as making voting more accessible

often comes in stages and need not be an all-or-nothing

proposition.

Appellants’ reliance on Bush v. Gore, 531 U.S. 98

(2000), to support their view that the District Court’s order

violated the Equal Protection Clause is misplaced. First, Bush

NAACP v. Schmidt, No. 1:22-cv-00399, 2023 WL 8091601,

at *28-34 (W.D. Pa. Nov. 21, 2023).

The Republican National Committee intervenors appeal

but, notably, the county boards of election and the Secretary do

not. My colleagues agree with the intervenors’ view that the

Materiality Provision applies only to paperwork used to

used to mail ballots. For the reasons set forth below, the

expressly stated that its “consideration is limited to the present

circumstances, for the problem of equal protection in election

processes generally presents many complexities.” Id. at 109.

Second, the present case does not involve a lack of a uniform

standards for determining whether a ballot expressed the

voter’s choice. Finally, reported cases involving Equal

Protection challenges to a remedy citing Bush, see, e.g., Ne.

Ohio Coal. For the Homeless v. Husted, 696 F.3d 580, 583-84

(6th Cir. 2012); Democratic Party of Georgia, Inc. v.

Crittenden, 347 F. Supp. 1324, 1339-41 (N.D. Ga. 2018);

Friedman v. Snipes, 345 F. Supp. 2d 1356, 1381-82 (S.D. Fla.

2004), are factually distinguishable and ignore Bush’s

statement about the limits of its ruling. 531 U.S. at 109.

Furthermore, Bush itself did not cite Morgan, and only Justice

Ginsburg cited McDonald in her dissent. Id. at 143 (Ginsburg,

J., dissenting). Likewise, Husted, Crittenden, and Friedman do

not cite Morgan, and the singular references to McDonald in

Crittenden and Friedman were for unrelated purposes.

Accordingly, these cases do not show that the District Court’s

remedy violated Equal Protection.

Materiality Provision, in my view, is not limited to that narrow

group of documents and, therefore, I respectfully dissent.

I begin with a review of the relevant Pennsylvania law.

To be qualified to register and to vote in Pennsylvania, an

individual must (1) be at least eighteen years old on the date of

the election, (2) be a citizen of the United States for at least one

month before the election, (3) reside in the election district for

at least thirty days before the election, and (4) not have been

confined for a felony in the preceding five years. 25 Pa. Cons.

Stat. § 1301; 25 Pa. Stat. and Cons. Stat. § 2811.

Qualified voters can vote in person, absentee, or by

mail-in ballot. See 25 Pa. Stat. and Cons. Stat. §§ 3146.6(a),

3150.16(a). To vote by mail-in ballot,

the voter must

complete an application that contains the voter’s date of birth,

length of residency in the district, and proof of identification.

25 Pa. Stat. and Cons. Stat. § 3150.12. If the voter’s county

board of elections verifies the voter’s identity and

qualifications, then it sends him a mail-ballot package, which

A prior panel reached the same conclusion when it

held that the Materiality Provision required that officials count

ballots contained in envelopes where the declaration lacked a

date, and I agree with their conclusion. Migliori v. Cohen¸ 36

F.4th 153 (3d Cir. 2022), vacated as moot sub nom., Ritter v.

Migliori, 143 S. Ct. 297, 298 (2022).

I focus on only documents that mail-in voters submit

because that is the group of voters at issue in this case. See

United States v. Meyers, 484 F.2d 113, 114 (3d Cir. 1973)

(“[W]e will limit our review to the pertinent facts.”).

contains a ballot, a secrecy envelope, and a pre-addressed

return envelope, on which a voter declaration is printed. 25 Pa.

Stat. and Cons. Stat. § 3150.12-.15.

The law instructs the

voter to mark the ballot in secret, place the ballot in the secrecy

envelope, place the secrecy envelope in the return envelope,

and “fill out, date and sign the declaration.” 25 Pa Stat. and

Cons. Stat. §§ 3146.6(a), 3150.16(a) (the “date requirement”).

Although the formatting of the declaration varies by county,

each declaration contains the following language above the

signature and date lines:

I hereby declare that I am qualified to vote in this

election; that I have not already voted in this

election; and I further declare that I marked my

ballot in secret. I am qualified to vote the

enclosed ballot. I understand I am no longer

eligible to vote at my polling place after I return

my voted ballot. However, if my ballot is not

received by the county, I understand I may only

vote by provisional ballot at my polling place,

unless I surrender my balloting materials, to be

voided, to the judge of elections at my polling

place.

Pa. Supp. App. at 284; see also 25 Pa. Stat. and Cons.

Stat. § 3146.6(b)(3) (setting forth required language for

mail-in and absentee declarations). Of import here, the

first line of the declaration requires the voter to declare

that he is qualified to vote.

In the November 2022 election, the boards of elections

did not begin sending the relevant mail-in ballot materials to

voters until August 2022.

After the voter completes these steps, he is required to

mail or deliver the packet to the designated county location so

it is received by 8:00 P.M. on Election Day. 25 Pa. Stat. and

Cons. Stat. §§ 3146.6(a), 3150.16(a). When the county board

of elections receives the packet, it scans the bar code on the

return envelope. The bar code corresponds to the voter who

requested the ballot and records when election officials receive

the ballot package.

As stated previously, more than 10,000 eligible voters

had their timely-ballots disqualified because the dates that

appeared below their signatures had no date, an incomplete

date, or an incorrect date and thus did not satisfy the State law’s

date requirement.

The question in this case is whether the disqualification

of those votes violates the Materiality Provision. To answer

this question, I consider the full text of the Materiality

Provision and the entire statutory section of which it is a part.

“As in any statutory construction case,” courts must

begin “with the statutory text and proceed from the

understanding that [u]nless otherwise defined,

statutory terms are generally interpreted in accordance with

their ordinary meaning.” Sebelius v. Cloer, 569 U.S. 369, 376

(2013) (internal quotation marks and citation omitted)

(alterations in the original); see also Babbitt v. Sweet Home

Chapter of Cmtys. for a Great Oregon, 515 U.S. 687, 697 n.10

(1995) (observing that Congress’s choice to “explicitly

define[]” a statutory term “obviat[es] the need for us to probe

its meaning as we must probe the meaning of [] undefined []

term[s]”). When a statutory term is undefined, we may

consider dictionary definitions to ascertain the term’s ordinary

meaning. Pa., Dep’t of Pub. Welfare v. U.S. Dep’t of Health

& Hum. Servs., 647 F.3d 506, 511 (3d Cir. 2011) (citation

omitted). “[W]hen the meaning of the statute’s terms is plain,

our job is at an end[,]” as “[t]he people are entitled to rely on

the law as written, without fearing that courts might disregard

its plain terms based on some extratextual

consideration.” Bostock v. Clayton Cnty., 590 U.S. 644, 673-

74 (2020) (citations omitted).

The Materiality Provision provides that:

[n]o person acting under the color of law shall[]

. . . deny the right of any individual to vote in any

election because of an error or omission on any

record or paper relating to any application,

registration, or other act requisite to voting, if

such error or omission is not material in

determining whether such individual is qualified

under State law to vote in such election.

52 U.S.C. § 10101(a)(2)(B). This is a conditional statement

consisting of two parts. I will refer to the part the Materiality

Provision that precedes “if such error or omission” as the first

clause, and the language that follows this phrase as the second

clause. As explained herein, the first clause identifies the types

of papers covered by the Materiality Provision, and the second

clause informs the first clause by identifying the types of errors

or omissions that cannot be used to deny a voter the right to

vote.

The first clause begins with “[n]o person acting under

color of law shall[] . . . deny the right of any individual to vote

in any election.” 52 U.S.C. § 10101(a)(2)(B). To understand

the meaning of the phrase “deny the right of any individual to

vote,” it is necessary to consider the meaning of “right.”

Black’s Law Dictionary defines “right” as “a capacity residing

in one man of controlling, with the assent and assistance of the

state, the actions of others,” or “that which a man is entitled to

have, or to do, or to receive from others within the limits

prescribed by law.” Right, Black’s Law Dictionary (4th ed.

1951) (internal quotation marks and citation omitted).

“deny” means, as relevant here, to “refuse to grant,” Deny,

Black’s Law Dictionary (4th ed. 1951).

Finally, the statute’s

definition of “vote” provides that

the word “vote” includes all action necessary to

make a vote effective including, but not limited

to, registration or other action required by State

law prerequisite to voting, casting a ballot, and

having such ballot counted and included in the

appropriate totals of votes cast with respect to

See also Right, Black’s Law Dictionary (4th ed. 1968)

(same); accord Obergefell v. Hodges, 576 U.S. 644, 664 (2015)

(describing “rights” as “interests of the person so fundamental

that the State must accord them its respect”) (citation omitted).

See also Deny, Webster’s Third New Int’l Dictionary

of the English Language Unabr. (1963) (“to refuse to grant”).

candidates for public office and propositions for

which votes are received in an election[.]

52 U.S.C. § 10101(e); see also id. § 10101(a)(3)(A) (providing

that “the term ‘vote’ shall have the same meaning as in

subsection (e) of this section”); see Babbitt, 515 U.S. at 697

n.10 (deferring to a statute’s definition of a term). This

definition demonstrates that the Materiality Provision applies

to a variety of actions connected with the voting process.

Accordingly, this part of the first clause unambiguously

provides that the State may not refuse to grant voters their

entitlement to have their ballots counted so long as the

remaining conditions of the Materiality Provision are

satisfied.

Appellants’ contention that we should interpret the

phrase “right . . . to vote” as the common law understood it in

1964, i.e., to not encompass mail-in voting fails because

Congress provided the strongest possible indication that the

common law definition was not applicable: its own definition.

United States v. Shabani, 513 U.S. 10, 13 (1994) (citations

omitted). Its definition governs. Babbitt, 515 U.S. at 697 n.10.

Mail-in voting falls squarely within that definition, as the

definition does not limit the act of voting to casting ballots in

person.

States have the authority to set neutral requirements

for voting. If, however, a state requirement denies an

individual the right to vote in an election due to an

inconsequential paperwork error or omission of the type

captured by the Materiality Provision, then the state rule cannot

be used to disqualify a vote because the Materiality Provision

supersedes state law. See Armstrong v. Exceptional Child Ctr.,

Inc., 575 U.S. 320, 324 (2015) (explaining that under the

The next portion of the first clause provides “because of

an error or omission on any record or paper relating to any

application, registration, or other act requisite to voting.” 52

Supremacy Clause of the Constitution, see U.S. Const. art. VI,

cl. 2, “[c]ourts . . . must not give effect to state laws that conflict

with federal laws” (citation omitted)). The Majority chooses

to adopt a narrow interpretation of the Materiality Provision

due, at least in part, to a concern that a plain reading may

prevent States from enforcing election laws that, albeit

reasonable, have nothing to do with determining whether

someone is qualified to vote. It is not a judge’s job to curtail

the scope of a constitutional law, see infra at 28-30, even if the

judge thinks its application could go too far. See Bob Jones

Univ. v. United States, 461 U.S. 574, 612 (1983) (Powell, J.,

concurring) (“The contours of public policy should be

determined by Congress, not by judges[.]”). The text makes

clear the types of mistakes Congress sought to regulate (i.e.,

those on mandatory paperwork other than registration forms).

The history shows that Congress extended the Materiality

Provision to the States and broadly defined the term “vote” to

combat the evil of voter disenfranchisement. Accordingly,

Congress’s choice to judge States’ voting laws against the

benchmark of whether a mistake is material to determining a

voter’s qualifications is not “confusing.” Majority Op. at 38.

Rather, the Materiality Provision’s plain text and history

demonstrate that Congress endeavored to legislate

expansively, and it determined that the interest in preventing

neutral-looking laws from disenfranchising qualified voters

outweighed the potential consequence of voiding a limited

number of state voting laws. Congress has the authority to do

so, and we are required to apply the law as written.

U.S.C. § 10101(a)(2)(B). The Majority holds that this portion

of the Materiality Provision shows that it applies to only

registration paperwork. I part company with them, as I view

the language as written: to capture errors or omissions on any

records or papers that relate to any application, registration, or

“other act requisite to voting.” Id.

To determine what constitutes any “other act requisite

to voting,” I am guided by the statute’s definition of “vote,”

see Babbitt, 515 U.S. at 697 n.10, as well as the ordinary

meaning of “requisite” and “other.” As previously noted, the

statute defines “vote” to include “all action necessary to make

a vote effective including, but not limited to, action required

by State law prerequisite to voting, casting a ballot, and having

such ballot counted[.]” 52 U.S.C. § 10101(e). “Requisite”

ordinarily means “required,” Requisite, Webster’s Third New

Int’l Dictionary of the English Language Unabr. (1963)

(“required by the nature of things or by circumstances or by the

end in view: essential, indispensable, necessary”),

and

“other” means “[d]ifferent or distinct from that already

mentioned,” Other, Black’s Law Dictionary (4th ed. 1951), or

“not being the one (as of two or more) first mentioned,” Other,

Webster’s Third New Int’l Dictionary of the English Language

Unabr. (1963). Therefore, by its terms, the first clause of the

Materiality Provision covers mistakes on paperwork necessary

for one’s ballot to count, including on papers distinct from

application or registration forms. To conclude that the

Materiality Provision limits “other act[s] requisite to voting” to

See also Requisite, Webster’s New Twentieth

Century Dictionary (2d ed. 1969) (“required by the nature of

things or by circumstances; necessary for some purpose; so

needful that it cannot be dispensed with”).

only registration-related conduct would place limits on the text

that simply are not there.

52 U.S.C. § 10101(a)(2)(B). Had

Congress wished to limit “any . . . other act requisite to voting,”

Because the phrase “requisite to voting” is not

ambiguous, the ejusdem generis canon of statutory

interpretation does not apply. See Harrison v. PPG Indus., Inc.,

446 U.S. 578, 588-89 (1980). However, applying that canon

would not lead to a different outcome in this case. This canon

instructs that “where general words follow an enumeration of

specific items, [they] are read as applying only to other items

akin to those specifically enumerated.” Id. at 588; see also Ali

v. Fed. Bureau of Prisons, 552 U.S. 214, 224-25, 227-28 (2008)

(declining to apply the rule to the phrase “‘any officer of

customs or excise or any other law enforcement officer’” so as

to limit “‘any other law enforcement officer’” because

Congress “easily could have written ‘any other law

enforcement officer acting in a customs or excise capacity’”

but instead “used [an] unmodified, all-encompassing phrase”

(emphasis omitted)). If we applied the canon, as well as the

canon noscitur a sociis, a related canon that provides that “a

word is known by the company it keeps,” Jarecki v. G.D.

Searle & Co., 367 U.S. 303, 307 (1961), “it would not

significantly narrow the ambit of” “requisite to voting” to

preclude inclusion of the declaration, Harrison, 466 U.S. at

588; see also Circuit City Stores, Inc. v. Adams, 532 U.S. 105,

114-15 (2001) (noting that a catch-all phrase can be construed

“to embrace only objects similar in nature to those objects

enumerated by the preceding specific words”). The declaration

is of the same species as a voter application or registration

form, as all three types of documents exist to enable someone

to exercise the right to vote and provide information

concerning the voter’s qualifications to vote.

id., to registration-related conduct alone, it could have written

“any . . . other act requisite to registering to vote,” or defined

“vote” more narrowly, but it did not.

Interpreting the first clause to cover more than

registration-related papers makes sense for additional reasons.

First, doing so ensures that no words in the statute are rendered

superfluous. “It is a cardinal rule of statutory construction that

significance and effect shall, if possible, be accorded to every

word.” Washington Mkt. Co. v. Hoffman, 101 U.S. 112, 115

(1879). Limiting the Materiality Provision to papers relating

to the initial registration would render the phrase “or other act

requisite to voting” meaningless, see United States v. EME

Homer City Generation, L.P., 727 F.3d 274, 293 (3d Cir. 2013)

(cautioning that “general phrases cannot be so narrowly

construed that they become meaningless”),

because the

Materiality Provision already applies to “any record or paper

relating to any . . . registration,”

52 U.S.C. 10101(a)(2)(B).

Conversely, this interpretation of “requisite to voting”

does not render “application or registration” superfluous, as

“Congress may have simply intended to remove any doubt

that” applying and registering to vote count as acts requisite to

voting. Fort Stewart Schs. v. FLRA, 495 U.S. 641, 646 (1990)

(noting that Congress may insert “technically unnecessary”

examples “out of an abundance of caution—a drafting

imprecision venerable enough to have left its mark on legal

Latin (ex abundanti cautela)” (italics omitted)).

This interpretation of “any . . . other act requisite to

voting” also does not violate the canon against federalism.

Concluding that the phrase covers paperwork other than

registration forms does not infringe upon a State’s right to

enact neutral and uniform legislation to regulate elections,

Second, this interpretation gives effect to the

Materiality Provision’s repeated use of the word “any.” See 52

U.S.C. § 10101(a)(2)(B). “Read naturally, the word ‘any’ has

an expansive meaning, that is, one or some indiscriminately of

whatever kind.” United States v. Gonzales, 520 U.S. 1, 5

(1997) (internal quotation marks and citation omitted).

Accordingly, this construction aligns with Congress’s use of

“any” to emphasize the variety of papers the Materiality

Provision covers.

subject to the Materiality Provision, which itself is limited to

mistakes on paperwork requisite to voting that are irrelevant to

determining a voter’s qualifications. State laws that set voting

deadlines, identify polling locations, permit mail-in voting, and

require the use of a secrecy envelope for mail-in ballots, for

example, all lie outside the sphere of the Materiality Provision,

as such requirements cannot result in errors on papers requisite

to voting. See, e.g., Democratic Cong. Campaign Comm. v.

Kosinski, 614 F. Supp. 3d 20, 55 (S.D.N.Y.

2022) (distinguishing between errors regarding a voter’s

assigned polling place and errors “on any record or

paper”); Friedman, 345 F. Supp. 2d at 1372-73 (declining to

issue an injunction under the Materiality Provision that would

require counting absentee ballots received after a deadline, as

this was not an error or omission “on any record or paper”); see

also Indiana Democratic Party v. Rokita, 458 F. Supp. 2d 775,

841 (S.D. Ind. 2006) (failure to present identification “is by

definition not an error or omission on any record or paper”

(internal quotation marks and citation omitted)), aff’d sub nom.

Crawford v. Marion Cnty. Election Bd., 472 F.3d 949 (7th Cir.

2007), aff’d, 553 U.S. 181 (2008).

The Majority relies on the fact that the statutory

subsections neighboring the Materiality Provision may more

Third, this interpretation is consistent with the historical

context in which the Materiality Provision was enacted.

obviously apply to only registration and voter qualifications to

support the view that the Materiality Provision only applies to

initial registration paperwork. See 52 U.S.C. §

10101(a)(2)(A), (C) (prohibiting State actors from using (1)

non-uniform practices to “determin[e] whether any individual

is qualified under State law or laws to vote in any election,”

and (2) “literacy test[s] as a qualification for voting . . . unless”

certain requirements are met). These neighboring provisions,

however, do not alter the scope of the Materiality Provision.

First, they are not phrased as conditional statements and thus

are not structured in the same way as the Materiality Provision.

Secon, the Materiality Provision reaches errors or omissions

any paperwork “requisite to voting.” Neither § 10101(a)(2)(A)

nor (C) contain such “requisite to voting” language. Therefore,

the subsections differ, and with “differing language” comes

differing meanings. Russello v. United States, 464 U.S. 16, 23

(1983) (observing that when “Congress includes particular

language in one section of a statute but omits it in another

section of the same [a]ct, it is generally presumed that

Congress acts intentionally and purposely in the disparate

inclusion or exclusion” (internal quotation marks and citations

omitted)).

Between 1957 and 1965, Congress engaged in an

eight-year effort to research and combat discrimination in

elections. In 1957, Congress, “disturbed by allegations that

some American citizens were being denied the right to vote . .

. because of their race, color, creed, or national origin[,]” U.S.

Comm’n on Civil Rights, Report of the U.S. Comm’n on Civil

Rights 1959, at ix (1959) (“1959 CCR Report”), passed the

Civil Rights Act of 1957, which, among other things, outlawed

intentional acts of voter intimidation in federal elections and

established the U.S. Commission on Civil Rights (“CCR”) to

“investigate” discrimination in voting, see 71 Stat. at 634-36

(§§ 101-06).

The CCR’s initial report detailed the history of

persistent, “ingenious and sometimes violent methods” State

actors employed to disenfranchise Black voters since the end

of the Civil War. 1959 CCR Report at 30. This report advised

Congress that the “[t]he history of voting in the United States

shows . . . that where there is will and opportunity to

discriminate against certain potential voters, ways to

discriminate will be found.” Id. at 133. Congress responded

by passing the Civil Rights Act of 1960, Pub. L. No. 86-449,

74 Stat. 86 (1960). Relevant in that legislation, Congress

defined the term “vote” using the identical, broad definition

now codified at 52 U.S.C. § 10101(e). See 74 Stat. at 91-92.

By 1963, the CCR advised Congress that: (1) voter

discrimination endured, (2) “present legal remedies . . . [were]

inadequate[,]” and (3) “the promise of the 14th and the 15th

amendments to the Constitution remain[ed] unfulfilled.” U.S.

Comm’n on Civil Rights, Civil Rights ‘63, at 13, 26 (1963)

(“1963 CCR Report”). The report further catalogued that the

“techniques of discrimination” used to “subvert the

Constitution of the United States” remained “diverse.” Id. at

15, 22. Among the most “common” included the “use of

plainly arbitrary procedures” by certain officials, such as (1)

the “requirement of vouchers or some other unduly technical

method of identification,” (2) the “rejection for insignificant

errors in filling out forms,” (3) the “failure to notify applicants

of rejection,” (4) the “imposition of delaying tactics,” and (5)

the “discrimination in giving assistance to applicants.” Id. at

22; see also U.S. Comm’n on Civil Rights, 1961 U.S. Comm’n

on Civil Rights Report: Voting, at 137 (1961) (“1961 CCR

Report”) (describing the arbitrary requirement “to calculate

[one’s] age to the day” as a “common technique of

discriminating against would-be voters on racial grounds”). As

a result of this report, Congress passed the Civil Rights Act of

1964 to remedy “problems encountered in the operation and

enforcement of the Civil Rights Acts of 1957 and 1960[.]”

H.R. Rep. No. 88-914, title I (1963), as reprinted in 1964

U.S.C.C.A.N. 2391, 2394 (“1963 House Report”); see also id.

at 2448 (explaining further that Congress sought rectify the

failure of prior legislation “to end wholesale voter

discrimination in many areas”).

The 1964 legislation included an initial version of the

Materiality Provision that applied only to federal elections,

which the House Report described as “prohibiting the

disqualification of an individual because of immaterial errors

or omissions in papers or acts relating to [] voting.” Id. at 2394.

The House Report reflects that Congress largely envisioned the

Materiality Provision to address discriminatory practices in

voter registration. Id. at 2391, 2491 (Congressmen expressing

their views that the Materiality Provision required registration

officials to disregard minor errors or omissions if they are not

material in determining whether an individual is qualified to

vote). However, in framing the problem, Congress understood

from the CCR’s initial report that “where there is will and

opportunity to discriminate against certain potential voters,

ways to discriminate will be found.” 1959 CCR Report at 133.

Accordingly, the initial focus on registration merely reflects

that, at the time the legislation was enacted, registration was

the threshold problem that needed to be addressed, but it was

not the only problem that Congress did, in fact, address.

Indeed, the definition of vote that is in § 10101 demonstrates

that it is illogical to conclude that Congress, who was seeking

to ensure that Black Americans could vote, intended to enact

legislation that only allowed Black Americans to register to

vote but gave no regard to whether those same individuals

could actually have their votes counted once registered. See,

e.g., 1963 House Report at 2393 (explaining “H.R. 7152, as

amended, . . . would reduce discriminatory obstacles to the

exercise of the right to vote[,]” not just the right to register to

vote).

Ultimately, “the provisions of the 1957, 1960, and 1964

Civil Rights Acts to eliminate discriminatory voting practices

[proved] to be clearly inadequate,” 111 Cong. Rec. 15,645

(1965) (statement of Rep. Emanuel Celler), and “[p]rogress”

remained “painfully slow,” H.R. Rep. No. 89-439 (1965), as

reprinted in 1965 U.S.C.C.A.N. 2437, 2441. The CCR

expressed concerns that Congress’s prior efforts had “failed to

produce any significant increase in [Black] registration and

voting.” U.S. Comm’n on Civil Rights, Voting in Mississippi,

at 49 (1965). Even the Supreme Court observed that when

Congress banned specific discriminatory practices, “some of

the States affected . . . merely switched to discriminatory

devices not covered by the federal decrees,” “enacted difficult

new tests,” “defied and evaded court orders,” or “simply closed

their registration offices to freeze the voting rolls.”

Katzenbach, 383 U.S. at 314. Consequently, Congress passed

the Voting Rights Act of 1965, which expanded the Materiality

Provision to cover all elections, Pub. L. No. 89-110, 79 Stat.

437, 445 (1965), thereby ensuring that, even in State and local

elections, voters were not denied the right to cast a ballot based

on inconsequential paperwork mistakes that had no impact on

determining whether the voter was qualified to vote. A

fulsome consideration of the legislative history surrounding the

explained in more detail in note 19, history shows that

Congress investigated the problem of voter discrimination and

learned that it was pervasive, adaptable, and destructive.

Although Congress sought to address what, at the time, was the

threshold problem for Black Americans trying to vote,

Congress’s concerns about voter discrimination did not vanish

after registration. Congress’s underlying concern was

wrongful disenfranchisement. In light of the important

problem Congress sought to address, and its adoption of broad

statutory language, it follows that the Materiality Provision

applies to mistakes on paperwork including, but not limited to,

voter registration forms. See Katzenbach, 383 U.S. at 309

(describing ‘voluminous legislative history’ addressing

‘unremitting and ingenious defiance of the Constitution’”).

Voting Rights Act demonstrates that Congress clearly

understood that it was acting in an area normally reserved to

the States and did so because of the extraordinary need to

protect the franchise. Congress regarded the Voting Rights of

Act of 1965 as “essential to prevent any last minute

nullification of the enfranchisement of qualified citizens.” 111

Cong. Rec. 10958, 11021-22 (May 19, 1965) (statement of

Sen. Fong).

The Materiality Provision does not require proof that

the State law under review was motivated by discriminatory

animus as the plain language of the Materiality Provision

contains no such requirement. See Bostock, 590 U.S. at 674

(identifying no constitutional problem when legislation

“reaches beyond the principal evil legislators may have

intended or expected to address,” as “it is ultimately the

provisions of . . . legislative commands rather than the principal

concerns of our legislators by which we are governed” (internal

quotation marks and citations omitted)). Additionally,

Reading the statute to cover paperwork that is created

after a voter is registered also does not render the Materiality

Provision unconstitutional. First, with respect to federal

elections, the Elections Clause provides that “[t]he Times,

Places and Manner of holding” federal elections “shall be

prescribed in each State by the Legislature thereof; but

Congress may at any time by Law make or alter such

Regulations.” U.S. Const. art. I, § 4, cl. 1. The Elections

Congress’s choice for the Materiality Provision to cover

facially neutral, but nonetheless immaterial, post-registration

requirements is an appropriate and necessary approach to

remedy voter discrimination, particularly because States used

what appeared to be facially neutral voting requirements to

disenfranchise certain voters. See Condon v. Reno, 913 F.

Supp. 946, 950 (D.S.C. 1995) (describing the requirement for

a voter to calculate his age in exact months, which disparately

affected Black voters in the Jim Crow South, and which

Congress sought to eradicate by way of the Materiality

Provision); cf. Nev. Dep’t of Hum. Res. v. Hibbs, 538 U.S.

721, 721-22 (2003) (observing in the analogous Fourteenth

Amendment context that “Congress may enact so-called

prophylactic legislation that proscribes facially constitutional

conduct in order to prevent and deter unconstitutional

conduct”). In any event, an amicus has cited a report finding

that the types of errors and omissions that occurred in this case

disproportionately disenfranchised minority voters. See

SeniorLAW Center Amicus Br. at 11-12 (citing Carter Walker

& Laura Benshoff, Philadelphia’s Communities of Color

Disproportionately Affected When Mail Ballots Are Rejected

Over Small Errors, SpotlightPA (June 27, 2023),

https://www.spotlightpa.org/news/2023/06/pa-philadelphia-

mail-ballot-rejection-black-latino/).

Clause on its own thus supplies authority for Congress to

prohibit the disenfranchisement of voters for immaterial

paperwork mistakes in elections where federal candidates are

on the ballot.

Second, both the Fourteenth and Fifteenth Amendments

empowered Congress to promulgate legislation such as the

Civil Rights Acts of 1957, 1960, and 1964 and the Voting

Rights Act of 1965. U.S. Const. amends. XIV, § 5, XV, §

2. Although the Supreme Court has stated that such legislation

need only be reviewed for a rational basis, Katzenbach, 383

U.S. at 324, it also has indicated that legislation enacted under

the Fourteenth Amendment must be congruent and

proportional to the injury Congress sought to prevent, City of

Boerne v. Flores, 521 U.S. 507, 520 (1997). See Vote.Org v.

Callanen, 89 F.4th 459, 486 n.11 (5th Cir. 2003) (“The

Supreme Court has not decided whether legislation enacted

under the Fifteenth Amendment on voting rights must be

congruent and proportional or simply a rational means of

executing a constitutional prohibition” (internal quotation

marks, citations, and alterations omitted)).

The interpretation of the Materiality Provision set forth

herein survives constitutional muster under either standard.

See id. (“The Materiality Provision satisfies either test.”). As

already noted, the historical record shows that Congress sought

to eliminate a variety of evils plaguing the voting process when

it passed the Civil Rights Acts and the Voting Rights Act. See

supra n.19; accord Shelby Cnty. v. Holder, 570 U.S. 529, 534

(2013) (noting that “Congress determined [that the Voting

Rights Act of 1965] was needed to address entrenched racial

discrimination in voting,” not merely in registering to vote); id.

at 545 (quoting favorably Katzenbach, 383 U.S. at 308, for the

proposition that in 1966 “‘[t]he ‘blight of racial discrimination

in voting’ had ‘infected the electoral process in parts of our

country for nearly a century’”); id. at 548 (observing that the

Voting Rights Act of 1965 “has proved immensely successful

at redressing racial discrimination and integrating the voting

process”—not registration, alone). This history demonstrates

that Congress was concerned with protecting voters’ rights at

every step of the voting process, not just during registration.

“[P]rohibit[ing] those acting under color of law from using

immaterial omissions, which were historically used to prevent

racial minorities from voting, [and] from blocking any

individual’s ability to vote[,]” is a rational, congruent, and

proportional remedy to address a State actor’s effort to

interfere with the franchise. Vote.Org, 89 F.4th at 487; see

Florida State Conf. of N.A.A.C.P. v. Browning, 522 F.3d 1153,

1173 (11th Cir. 2008) (“[W]e recognize that Congress in

combating specific evils might choose a broader remedy.”);

accord La Unión del Pueblo Entero v. Abbott, No. 5:21-cv-

0844, 2023 WL 8263348, at *21 (W.D. Tex. Nov. 29, 2023)

(“Congress’s enactment of a broader rule is entirely rational:

after identifying a record of a problem at the registration stage,

Congress was not limited to crafting a solution with an obvious

loophole allowing officials to use forms at later stages in the

same way, and for the same purpose.”).

For these reasons, the first clause of the Materiality

Provision covers mistakes on paperwork submitted both in

connection with a voter’s initial registration to vote and those

required to ensure that the voter’s vote is counted.

Other courts have reached similar conclusions. See,

e.g., La Unión del Pueblo Entero, 2023 WL 8263348, at *19

(concluding that the Materiality Provision applies because the

“preparation of a carrier envelope is an ‘act requisite to voting’

for individuals who cast a mail ballot”); League of Women

Voters of Arkansas v. Thurston, No. 5:20-cv-05174, 2023 WL

6446015, at *16 (W.D. Ark. Sept. 29, 2023) (applying the

Materiality Provision to absentee ballot applications); In re

Georgia Senate Bill 202, No. 1:21-mi-55555, 2023 WL

5334582, at *10 (N.D. Ga. Aug. 18, 2023), appeal docketed,

No. 23-13245 (11th Cir.) (holding that returning an absentee

ballot and completing the outer envelope is an act requisite to

voting); Common Cause v. Thomsen, 574 F. Supp. 3d 634, 636

(W.D. Wis. 2021) (observing that the Materiality Provision

“isn’t limited to . . . voter registration”); Ford v. Tenn. Senate,

No. 06-2031, 2006 WL 8435145, at *7, 10-11 (W.D. Tenn.

Feb. 1, 2006) (holding that under the Materiality Provision,

State officials could not set aside in-person voters’ ballots

because they had not met the requirement to separately sign

both a ballot application form and a poll book).

Appellants have identified only one district court that

has ruled differently. In Friedman, the court declined to enjoin

the counting of absentee ballots received after a deadline,

principally because this was not an error or omission on a

record or paper. 345 F. Supp. 2d at 1373. Thus, that case

differs from this case, which involves paperwork. Relatedly,

although the Friedman court viewed the Materiality Provision

as being “designed to eliminate practices that could encumber

an individual’s ability to register to vote[,]” id. at 1370-71

(emphasis and citation omitted), and stated that it found no

The Materiality Provision’s second clause limits the

Provision to cover errors or omissions only “if such error or

omission is not material in determining whether such

individual is qualified under State law to vote in such election.”

authority to hold that the Materiality Provision was intended to

apply after a voter was deemed qualified, id. at 1371, it made

these observations in a case where the alleged errors were (1)

not on paperwork, and (2) did not affect state officials’ ability

to determine voter qualifications. Thus, these comments are

dicta from an out-of-circuit district court.

The Majority speaks of a category of state election

laws it calls “ballot-casting” or “vote-casting” measures, which

it views as distinct from registration rules. This categorization

is not grounded in the text of the statute, which draws no such

distinction. In fact, its definition of “vote” demonstrates that

the statute covers actions beyond registration. Cf. United

States v. Mosley, 238 U.S. 383, 386 (1915) (stating “the right

to have one’s vote counted is as open to protection by Congress

as the right to put a ballot in a box”). Moreover, this distinction

does not account for situations where same-day voter

registration is permitted. See, e.g., Va. Code § 24.2-420.1.

More specifically, in a same-day registration jurisdiction, a

voter could make a paperwork mistake on the registration form

that the Materiality Provision would forgive. If, however,

moments later the voter made the identical mistake on another

document requisite to voting, then, under the Majority’s view,

the Materiality Provision would not apply and the ballot could

be discarded. Such an outcome would be inconsistent with the

plain meaning of the Materiality Provision and Congress’s

goals in enacting it.

52 U.S.C. § 10101(a)(2)(B). Thus, mistakes on paperwork

related to any act requisite to voting cannot provide a basis to

discard someone’s vote “if” the voter’s mistake is immaterial

“in determining whether” the voter is “qualified under State

law to vote in such election.” Id.

The statute defines the phrase “qualified under State

law” to “mean qualified according to the laws, customs, or

usages of the State[.]” Id. at § 10101(e).

“Material” means

“having influence” or is “relevant.” See Material, Black’s Law

Dictionary (4th ed. 1951) (“having influence or effect; going

to the merits”); Material, Webster’s Third New Int’l Dictionary

of the English Language Unabr. (1963) (“of, relating to, or

consisting of matter,” “relevant, pertinent”).

“Determine”

As is the case in Pennsylvania, see 25 Pa. Cons. Stat.

§ 1301(b), States generally define voter qualifications to

consist of substantive personal attributes. See, e.g., La Unión

del Pueblo Entero, 2023 WL 8263348, at *22 (citing Lassiter

v. Northampton Cnty. Bd. of Elections, 360 U.S. 45, 51

(1959) (residence, age, criminal record)). Such qualifying

attributes are “distinct from rules governing the conduct of

elections, including the manner of determining

qualifications.” Id. at *22 (citing Arizona v. Inter Tribal

Council of Arizona, Inc., 570 U.S. 1, 13-17 (2013); Harper v.

Virginia State Bd. of Elections, 383 U.S. 663, 666

(1966) (distinguishing qualifications and compliance with poll

tax)).

See also Wearry v. Cain, 577 U.S. 385, 392 (2016)

(explaining that in the context of the Brady rule, “[e]vidence

qualifies as material when there is any reasonable likelihood it

could have affected the judgment of the jury”) (internal

quotation marks and citations omitted)); Anderson v. Liberty

means “to reach a decision about after thought and

investigation,” “decide upon,” “find out exactly,” “ascertain,”

or “resolve.” Determine, Webster’s New World Dictionary,

College Ed. (1960). In this context, “in” means “used as a

function word to indicate means or instrumentality.” In,

Webster’s Seventh New Collegiate Dictionary (7th ed. 1963);

see also In, Webster’s New World Dictionary, College Ed.

(1960) (“during the course of”).

Thus, the phrase “in

determining” within the Materiality Provision addresses

whether the error or omission is used to ascertain or decide the

voter’s qualifications.

Therefore, read together, the Materiality Provision

means that State actors cannot deprive a voter of the right to

vote due to an error or omission he makes on papers that he

must complete to have his ballot counted, including on papers

distinct from application or registration forms, if the mistake is

not relevant to the State’s ability to ascertain whether he is

qualified under state law to vote in the election.

Inversely, if

Lobby, 477 U.S. 242, 248 (1986) (describing materiality in the

context of summary judgment as “facts that might affect the

outcome of the suit under the governing law”).

See also Webster’s Third New Int’l Dictionary of the

English Language Unabr. (1963) (“to settle a question or

controversy about”; “to come to a decision concerning as the

result of investigation or reasoning”).

Contrary to the Majority’s suggestion, determining

whether an individual is qualified to vote does not end after the

individual registers. On Election Day, States continue to verify

voter qualifications up until the time they count voters’ ballots,

such as by requiring voters to sign-in or present identification

immediately prior to voting at a polling location or by ensuring

that the voter had not died, moved from the district or the

Commonwealth, or been incarcerated for a felony. Cf.

Vote.Org, 89 F.4th at 489 (observing, as a broad principle, that

States’ “interest in voter integrity is substantial,” and “that

interest relates to the qualifications to vote”).

It is worthwhile to note that the declaration here played

a role in helping the State to determine that all mail-in voters

were qualified to vote. As noted, the declaration contained the

language “I hereby declare that I am qualified to vote in this

election” above the date and signature line. See, e.g., Pa. Supp.

App. 284. Thus, the declaration provides additional assurance

to election officials that the mail-in voter is qualified to

vote. See 25 Pa. Stat. and Cons. Stat. § 3146.8(g)(3) (“When

the county board meets to pre-canvass or canvass . . . mail-in

ballots . . . the board shall examine the declaration on the

envelope of each ballot not set aside under subsection (d)[,]”

which addresses deceased voters, 25 Pa. Stat. and Cons. Stat. §

3146.8(d),“and shall compare the information thereon with that

contained in the . . . Mail-in Voters File . . . . If the county

board has verified the proof of identification as required under

this act and is satisfied that the declaration is sufficient and the

information contained in the . . . Mail-in Voters File . . .

verifies his right to vote . . ., the county board shall provide a

list of the names of electors whose . . . mail-in ballots are to be

pre-canvassed or canvassed.” (internal quotation marks

omitted)).

Accordingly, even assuming the Materiality Provision

only covers documents States use to determine voter

qualifications, the declaration and signature themselves—but

not the date—fit the bill. They aid election officials in

verifying the name of the voter and that he was qualified to

vote on the date of the election. Therefore, the signed

someone makes an error or omission on paperwork required to

vote and that mistake is relevant to the State actor in

ascertaining whether the voter is qualified to vote, then the

State actor can deny him the right to vote for making that

mistake.

declaration was material to determining voter qualifications

but, as explained herein, the date was not.

As explained herein, Congress wrote broadly when it

enacted the Materiality Provision to include a host of

paperwork beginning with “registration” through “having a

ballot counted.” 52 U.S. C. § 10101(e). Although it is

unnecessary to decide here, there is good reason to conclude

the Materiality Provision covers ballots. This, however, does

not mean that State officials are, for example, required to count

a ballot that contains votes for multiple candidates for a single

position. This is because it would be impossible to “have such

ballot counted and included in the appropriate totals of votes

cast,” 52 U.S.C. § 10101(e), because the State could not

determine the candidate for whom the voter chose to vote.

Conversely, where a voter’s choice is discernable, the

Materiality Provision may require States to count those votes,

say where the ballot is marked in black ink despite a state law

requiring the ballots to be marked in blue ink. This is

consistent with Congress’s goal to restrain a State’s ability to

discard ballots cast by qualified voters.

Furthermore, as stated previously, see supra n.17, the

interpretation herein also does not invalidate the broad array of

State election laws that do not relate to paperwork required to

vote or give license to bad actors who may attempt to exploit

certain State election laws for improper purposes, such as those

individuals who might implement a pay-to-vote scheme by

having voters make errant marks on ballots to signal their vote,

Applying this interpretation of the Materiality

Provision, the declaration here is squarely covered by the

Provision’s first clause. First, the declaration appears on the

mailing envelope and thus is a paper. Second, although the

declaration is not itself a registration or application, it is

another paper required for a voter to have his vote counted. See

25 Pa. Stat. and Cons. Stat. §§ 3146.6(a), 3150.16(a). Third,

qualified voters who failed to date their declarations or who

wrote an incorrect or incomplete date had their ballots

discarded for noncompliance with the date requirement.

where such marks are prohibited by State law. See, e.g., 18

U.S.C. § 597; 52 U.S.C. § 20511.

Contrary to the Majority’s characterization, these

observations are not based upon whether there are legitimate

interests being furthered, but rather are based upon what the

law says. Moreover, they are consistent with Congress’s goal

of safeguarding the right of all qualified voters to participate in

the democratic process—an interest shared by federal and state

actors alike.

One member of the Majority asserts that even if the

view espoused herein governed, an argument could be made

that declarations that contain no date or incomplete dates

should not be counted, but declarations that have an erroneous

date, such as the wrong year, should be counted. No party has

advocated such view. To the contrary, the parties agreed at

oral argument that, for the purposes of the date requirement,

there is no difference between a declaration that omits a date

and a declaration that has an erroneous date. This is consistent

with the conclusion of the Pennsylvania Supreme Court, which

held that both “undated or incorrectly dated” return envelops

a result of the disqualification of those ballots, affected voters

were deprived of their right to have their votes counted.

The components of the second clause are also satisfied.

The record shows that the date errors and omissions were not

relevant to a voting official’s determination that the voter was

qualified to vote. Although the declaration embodies the

voter’s representation that he was qualified to vote, and the

signature provides the name of the voter,

the evidence shows

that election officials did not use the date or absence thereof to

determine a voter’s qualifications (i.e., a voter’s age,

citizenship, county and duration of residence, or incarceration

status). See 25 Pa. Cons. Stat. § 1301(b).

could not be counted because they failed to comply with State

law. Ball v. Chapman, 289 A.3d 1, 22-23 (Pa. 2023). The Ball

court split as to whether such ballots should nonetheless be

counted under the Materiality Provision.

Elections officials confirmed that all rejected ballots

were signed and timely received and came from voters who

were otherwise registered and qualified to vote.

The signature is being used for the sole purpose of

providing a name and the name is needed to determine whether

the name is associated with a qualified voter. Pennsylvania

specifically prohibits election officials “from rejecting

absentee or mail-in ballots based on signature comparison[.]”

In re: Nov. 3, 2020 General Election, 240 A.3d 591, 611 (Pa.

2020).

Election officials did not use the handwritten date to

establish whether the ballot was timely received, and a voter

whose mail-in ballot was timely received could have only

signed the declaration at some point between the time that he

received the mail-ballot from election officials and the time

Election officials denied qualified voters the right to

vote by declining to count timely-received ballots contained in

return envelopes with signed declarations that were missing or

had incorrect dates, even though such errors or omissions were

immaterial to ascertaining whether those individuals were

qualified to vote. Accordingly, enforcement of the State’s date

requirement violates the Materiality Provision. Thus, timely

received ballots cast by qualified voters that were contained in

envelopes with signed declarations that have omitted or

mistaken dates should have been (and should be) counted.

My colleagues disagree with this conclusion. They hold

the majority, and their view prevails. From a practical

perspective, this means that the State may toss a ballot cast by

a qualified voter based upon mistakes on required paperwork

immaterial to determining voter qualifications.

Today’s ruling is a clear reminder that all voters must

carefully review and comply with every instruction and

requirement imposed upon them. If they do not, they risk

having their otherwise valid votes discounted based on even

the most inconsequential mistake. One can only hope that

election officials do not capitalize on the Majority’s narrow

interpretation of the Materiality Provision by enacting unduly

technical and immaterial post-registration paperwork

requirements that could silence the voices of qualified voters.

election officials received it back. Election officials discarded

ballots received after the Election Day deadline and did not

count the ballots of voters who died before Election Day. In

addition, no county board of elections identified any fraud

concern due to a declaration missing or having an incorrect

date.

I respectfully dissent.