Then-former President Donald Trump sits in a courtroom next to his lawyer Emil Bove, left, before the start of the day”s proceedings in the Manhattan Criminal court, Tuesday, May 21, 2024, in New York. (Dave Sanders/The New York Times via AP, Pool).
A federal court of appeals on Tuesday nixed an effort by the Republican Party to revive a case challenging Pennsylvania’s use of mail-in ballots with wrongly or incorrectly dated return envelopes.
The years-old case began in November 2022, when several voters, elected officials and Democratic Party organizations sued all 67 county election boards in the Keystone State over the so-called “date instruction” rule, which prohibited counties from tallying votes sent in “undated or incorrectly dated outer envelopes.”
While litigation dragged on and on, the plaintiffs got the relief they were asking for this spring. In March, U.S. District Judge Susan Paradise Baxter, appointed by President Donald Trump during his first term, issued a memorandum opinion in the plaintiffs’ favor. The court found the rules for mail-in ballots violated the First and 14th Amendments. That ruling permanently enjoined the use of the date instruction rule.
Throughout the course of the lawsuit, the Republican National Committee, National Republican Congressional Committee, and Republican Party of Pennsylvania joined as intervenors — to avail their interests and support the continued use of the disputed rules.
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In late August, a three-judge panel on the U.S. Circuit Court of Appeals for the 3rd Circuit affirmed the lower court’s ruling in a 55-page opinion that fulsomely asserts the sanctity of the franchise.
While a similar challenge under the Civil Right Act failed, the appeals court found severe constitutional problems with the rules.
The plaintiffs argued those restrictions as well as “any other provision that requires voters to provide (correct) dates on their mailing envelope—or precludes election officials from counting ballots that lack such dates” were an undue burden on the right to vote.
“Weighing the burden that practice imposes on Pennsylvanians’ constitutional right to vote against the State’s interest in the practice, the balance of the scales leads us to hold that it does not comply with our Constitution,” the panel determined.
In early September, Pennsylvania and the GOP organizations appealed for the panoply of judges on the circuit to hear the case again.
Now, in a narrow loss for the GOP defendants, eight of the 14 judges considering the case — 13 active judges and one judge in senior status — voted against a rehearing en banc. Only six of the judges voted for a rehearing.
None of the judges voting in the majority — to leave the district court ruling in place — offered their reasoning in an opinion or a concurrence.
Meanwhile, the six dissenters penned a terse explanation.
“The decision in this case declared unconstitutional the date requirement for mail-in ballots in Pennsylvania on the ground that its burden on voters outweighed the Commonwealth’s interests in the orderly administration of elections, the solemnity of elections, and the prevention of election fraud,” the dissent explains at the outset.
First, the dissent says, an intervening court ruling by the Pennsylvania Supreme Court brought some legal issues to bear on the earlier opinion rejecting a stay of the district court.
Previously, the dissent says, the state’s highest court did not mandate giving voters notice “of the rejection of their mail-in ballots or the opportunity to correct ballot defects.” Now, in a September ruling, that same court determined the state’s own constitution requires that “mail-in voters receive notice of the rejection of their ballots and the opportunity to correct ballot defects.”
To hear the dissent tell it, that September ruling “eliminated two of the key rationales” for the appellate court’s earlier decision to reject a stay of the injunction: “the lack of notice of a rejected mail-in ballot and the absence of an opportunity to correct such a rejected ballot.”
In other words, because the Pennsylvania Supreme Court strengthened voting rights at a state-based constitutional level, the district court’s federal mandate concerning such rights are, at least arguably, no longer necessary and call for a reconsideration of Baxter’s injunction, the six dissenting judges argue.
“So now as a practical matter, reconsideration of this Court’s decision is especially needed because it is not clear that the ruling has any applicability going forward – it appears not to,” the dissent penned by Circuit Judge Peter J. Phipps, another first term Trump appointee, reads. “In short, there are significant questions about this Court’s decision, and as a matter of exceptional importance, it merits en banc reconsideration.”
Notably, the ruling is the first public instance of Circuit Judge Emil Bove, Trump’s former criminal defense attorney, voting on a case.
Bove, for his part, voted with the minority. A footnote explains how Bove plans to “file a separate dissent sur rehearing on a later date.”
