Black Political Empowerment Project v. Schmidt
Case Summary
LWV Pennsylvania and several partners filed a state court lawsuit asserting that rejecting timely received mail ballots for errors in or omission of a date on the return envelope violated the state constitution’s Free and Equal Elections clause.
Pennsylvania is one of the states that offers no-excuse vote by mail. Voters may request a mail ballot from their county board of elections by providing the required information before the application deadline. If the application is accepted, voters will be mailed a package consisting of three components: the ballot itself, a yellow secrecy envelope marked “Official Election Ballot,” and a pre-addressed return envelope.
When voting by mail, voters are required to fill out their ballot, place it in the yellow secrecy envelope, seal the secrecy envelope, and then place both into the return envelope. The voters must sign the declaration on the return envelope and date the envelope (“date requirement”). Ballots must be received by 8 p.m. on Election Day, by the voter’s county election board, to be counted.
At the time of writing, guidance from the Secretary of State requires mail ballots with missing dates or dates, “deemed to be incorrect,” to be separated from the other ballots. These ballots may ultimately be rejected by the county election board, even if they were received before the deadline, and cast by an eligible voter.
The date requirement has been the object of repeated federal and state litigation. Recently, in a case brought by the Pennsylvania NAACP and LWV Pennsylvania, the United States Court of Appeals for the Third Circuit ruled that the date requirement did not violate the Materiality Clause of the Civil Rights Act. Similarly, in a separate case where LWV Pennsylvania filed an amicus brief, the Pennsylvania Supreme Court issued a decision in which the justices split evenly on whether the requirement violated the Materiality Clause.
On May 28, 2024, the League of Women Voters of Pennsylvania (“LWV of Pennsylvania”), the Black Political Empowerment Project, POWER Interfaith, Make the Road Pennsylvania, One PA Activists United, New PA Project Education Fund, Casa San José, Pittsburgh United, and Common Cause Pennsylvania filed a lawsuit in the Commonwealth Court of Pennsylvania. The plaintiffs asserted that thousands of voters had been disenfranchised due to errors and omissions of the date requirement on the return envelope and argued that counties had applied inconsistent standards to decide whether a date was incorrect. The plaintiffs further argued that the record in other litigation, on the date requirement, showed that it served no purpose in confirming the timely receipt of a mail ballot.
The plaintiffs requested that the court declare that rejecting timely ballots cast by eligible voters because of an omitted or incorrect date violated the state’s Free and Equal Elections Clause and enjoin further enforcement of the date requirement.
LWV Pennsylvania was represented by Arnold & Porter Kaye Scholer LLP, Public Interest Law Center, ACLU, and ACLU of Pennsylvania in this matter.
LWV Timeline
Plaintiffs file lawsuit
LWV Pennsylvania and several partners file a lawsuit asserting that rejecting timely mail ballots cast by eligible voters solely for incorrect or missing dates on the return envelope violated the state constitution’s Free and Equal Elections Clause.
Plaintiffs file motion for preliminary injunction
The plaintiffs request a preliminary injunction, arguing the date requirement should be reviewed using strict scrutiny and that it is unconstitutional under any level of scrutiny. The motion requests the requirement be enjoined pending final resolution of the case.
Plaintiffs file motion for summary relief
Plaintiffs move for summary relief, arguing that because the right to vote is a fundamental right under the state constitution, the date requirement must be evaluated under strict scrutiny, the most stringent level of judicial review. The plaintiffs argue that under this standard, the date requirement is unconstitutional.
The Commonwealth Court strikes down the date requirement
The Commonwealth Court of Pennsylvania grants relief to the plaintiff, ruling that strictly enforcing the date requirement and rejecting otherwise timely submitted absentee and mail-in ballots is unconstitutional under the free and equal elections clause.
The Pennsylvania Supreme Court vacates the Commonwealth Court's opinion
The Pennsylvania Supreme Court dismisses the case on jurisdictional grounds, stating that the plaintiffs must name all 67 county boards of elections in Pennsylvania as defendants.
Plaintiffs move for leave to file amended petition
In response to the Pennsylvania Supreme Court's ruling, the plaintiffs move to refile their lawsuit and name all 67 county boards of elections as defendants.
Pennsylvania Supreme Court issues order
The Pennsylvania Supreme Court issues a clarifying order, stating that amending the petition to include all county election boards would not remedy the lack of original subject matter jurisdiction.