MS. LINDA MIGLIORI; FRANCIS J. FOX; RICHARD E. RICHARDS; KENNETH RINGER; SERGIO RIVAS, Appellants v. ZACHARY COHEN, Intervenor – Plaintiff v. LEHIGH COUNTY BOARD OF ELECTIONS v. DAVID RITTER, Intervenor - Defendant
No. 22-1499
United States Court of Appeals for the Third Circuit
Argued: May 18, 2022; Opinion filed: May 27, 2022
2022 Decisions 417
Before: McKEE, GREENAWAY JR., and MATEY, Circuit Judges.
PRECEDENTIAL; On Appeal from the United States District Court for the Eastern District of Pennsylvania, No. 5-22-cv-00397, District Judge: Honorable Joseph F. Leeson
Sophia Lin Lakin
Stephen A. Loney, Jr.
Ari J. Savitzky [Argued]
Marian K. Schneider
Richard T. Ting
Witold J. Walczak
American Civil Liberties Union
125 Broad Street
18th Floor
New York, NY 10004
Connor P. Hayes
110 Piper Drive
Pittsburgh, PA 15234
Counsel for Plaintiff-Appellants
Adam C. Bonin
400
121 South Broad Street
Philadelphia, PA 19107
Counsel for Intervenor-Plaintiff-Appellee
Joshua Mazin [Argued]
Lucas J. Repka
RepkaMazin
108 East Center Street
Nazareth, PA 18064
Counsel for Intervenor-Defendant-Appellee
James G. Gorman
Francis G. Notarianni
Shohin H. Vance
Joshua J. Voss [Argued]
Samantha G. Zimmer
Kleinbard
Three Logan Square
1717 Arch Street, 5th Floor
Philadelphia, PA 19103
Counsel for Intervenor-Defendant-Appellee
Jacob B. Boyer [Argued]
Michael J. Fischer
1600 Arch Street
Suite 300
Philadelphia, PA 19103
Counsel for Amicus Appellant Commonwealth of Pennsylvania
Noah Bokat-Lindell [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 Appellant United States of America
Edward M. Wenger
Holtzman Vogel Baran Torchinsky & Josefiak
2300 N Street N.W.
Suite 643-A
Washington, D.C. 20037
Counsel for Amicus Appellee The Honest Elections Project
Zachary M. Wallen
301 South Hills Village Drive
Suite LL200-420
Pittsburgh, PA 15241
Counsel for Amici Appellee Speaker Pennsylvania House of Representatives, President Pro Tempore Pennsylvania Senate, Majority Leader of the House of Representatives, Majority Leader of the Pennsylvania Senate
McKEE, Circuit Judge.
The Materiality Provision of the Civil Rights Act1 prohibits any “person acting under color of law [from] deny[ing] the right of any individual to vote in any election because of an error or omission . . . if such error or omission is not material in determining whether such voter is qualified . . . to vote in such election.”2 In Pennsylvania, an error or omission is material to a voter’s qualifications to vote if it is pertinent to either the voter’s age, citizenship, residency, or felony status3 or the timeliness of the ballot.4
We are asked to determine if a date on the outside of a mail-in ballot, required under state law, is material to the voter’s qualifications and eligibility to vote. However, in resolving that question, we must decide whether private plaintiffs can even bring this suit to enforce the Materiality Provision.
We hold that private plaintiffs have a private right of action to enforce § 10101 under
I. Factual Background
In 2019, the Pennsylvania General Assembly enacted new mail-in voting provisions, which permitted all registered voters to vote by mail.5 To receive the mail-in ballot, a voter must first complete an application that requires the voter to provide his or her name, address of registration, and proof of
The Lehigh County Board of Elections (LCBE) held an election on November 2, 2021, to fill vacancies for the office of Judge of the Court of Common Pleas of Lehigh County. Six candidates ran for three available judgeships. Candidates Thomas Caffrey and Thomas Capehart received the most votes and were sworn into office. During the counting of the ballots, the LCBE set aside 257 out of approximately 22,000 mail-in or absentee ballots that lacked a handwritten date next to the voter declaration signature. The LCBE also received four ballots with the date in the wrong location on the outer envelope and set those aside. It is undisputed that all of these ballots were received by the deadline of 8:00 p.m. on election day. As of November 15,
II. Procedural History
The LCBE convened a public hearing on November 15, 2021, to consider whether to count the disputed (i.e., undated) ballots. During the hearing, the chief clerk testified and offered his conclusion that the undated declaration ballots were not effective and should not be counted because the declaration on the outside envelope was undated. Similarly, the LCBE’s solicitor testified that he understood that the Pennsylvania Department of State had advised that a dated declaration was required. There was also testimony that the LCBE “ha[d] decided to count ballots where voters provided their birthday dates.”14 The LCBE voted 3-0 to count the undated ballots.
On November 17, 2021, Ritter appealed with the Lehigh County Court of Common Pleas. An evidentiary hearing and oral argument followed. The trial court later issued an opinion and order on November 30, which affirmed the LCBE’s decision to count the disputed ballots.
Ritter then appealed the trial court’s decision to the Commonwealth Court of Pennsylvania. The court granted a stay pending to the Court of Common Pleas. That court prohibited the LCBE from opening and counting the disputed ballots. On January 3, 2022, the court issued its opinion and order, ultimately concluding that the undated ballots should not be counted. However, on January 27, the trial court entered an order, directing the LCBE to count the four misdated ballots but not the 257 undated ballots.15
On January 31, Plaintiffs Linda Migliori, Sergio Rivas, Richard Richards, Francis J. Fox, and Kenneth Ringer (Voters) sued the LCBE in the Eastern District of Pennsylvania. They argued that the LCBE’s decision to not count their votes simply because they had not entered the date on the outside envelope violated their rights under the
Voters are five individuals between the ages of 66 and 76 residing in Lehigh County. Some are Democrats and some are Republicans. They used mail-in ballots in the November 2021 county elections.17 Their ballots, along with 252 other Lehigh County mail-in ballot voters,18 were set aside and not counted merely because they did not write a date on the envelope.19 We again note that it is undisputed that their ballots were received before the 8:00 p.m. deadline and the only thing that prevents their vote from being counted is the fact that they did not enter a date on the outside envelope.20
On March 16, 2022, the District Court granted the LCBE and Ritter’s motions for summary judgment.21 The Court held that there was no private right of action to enforce the Materiality Provision.22 This expedited appeal followed.
III. Discussion23
As noted at the outset, we must determine whether the District Court erred in finding Voters have no right of action to enforce the Materiality Provision of the Civil Rights Act.
1. Enforcement Via 42 U.S.C. § 1983 25
In Gonzaga University v. Doe, the Supreme Court held that a federal statute that unambiguously confers an individual right is presumptively enforceable by private plaintiffs via § 1983.26 Accordingly, to determine whether a federal statute is enforceable by private plaintiffs via § 1983, we must first ask “whether Congress intended to create a federal right.”27 If a federal right is found, we then ask
The District Court found that the Materiality Provision unambiguously confers a personal right because it “places ‘[a]ll citizens’ qualified to vote at the center of its import and provides that they ‘shall be entitled and allowed’ to vote.”29 We agree.
Accordingly, we need only decide if Appellees rebutted the presumption that this right is enforceable under § 1983. A defendant can rebut the presumption but only by “showing that Congress ‘specifically foreclosed a remedy under § 1983.’”30 The presumption is generally only rebutted in exceptional cases.31 To rebut the presumption, a defendant must point to either “specific evidence from the statute itself” or “a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.”32 Appellees cannot establish either.
The text of § 10101 does not preclude a § 1983 remedy, and neither Appellee argues that it does. Specifically, § 10101(d) explains that federal courts “shall have jurisdiction of proceedings instituted pursuant to this section and shall exercise the same without regard to whether the party aggrieved shall have exhausted any administrative or other remedies.”33 Thus, this section specifically contemplates an aggrieved party (i.e., private plaintiff) bringing this type of claim in court. It does not shut the door on the mechanisms by which a party may pursue enforcing their right under the statute.
Nor does § 10101 include a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983 and therefore indicative of a congressional intent to foreclose a private right of action. The Supreme Court has found that statutory enactments preclude private enforcement actions pursuant to § 1983 in very few instances. In doing so, the Court “ha[s] placed primary
Appellees argue that the inclusion of a right of action for the United States precludes a right of action for private plaintiffs.39 It is true that the statute refers to the Attorney General’s enforcement ability.40 But this is distinguishable from the agency authorizations recognized in Sea Clammers. Here, as Intervenor-Appellee Ritter concedes, “the Attorney General’s enforcement authority is not made exclusive.”41 Nor does this statute include an express provision for only specific situations for which private suits are authorized. Whereas in Sea Clammers, because the statute expressly authorized citizen suits in specific provisions, the Court could not assume that Congress intended to authorize additional judicial remedies for private citizens where it was not
Moreover, this case is also distinguishable from Smith. Unlike in Smith, this statute does not provide for “aggrieved individuals to invoke ‘carefully tailored’ local administrative procedures.”43 Instead, as mentioned above, the statute expressly gives aggrieved parties direct access to the federal courts “without regard to whether the party aggrieved shall have exhausted any administrative or other remedies.”44 This reinforces our conclusion that the presumption of a private right of action under § 1983 is not rebutted.45
In holding that there was no private right to enforce the Materiality Provision of the Civil Rights Act, the District Court concluded that under Wisniewski v. Rodale, Inc., the Attorney General’s authority to enforce § 10101 is inconsistent with a private remedy and therefore rebuts the presumption that arises under Gonzaga.46 However, Wisniewski involved an implied right of action that did not implicate § 1983.47 Moreover, for reasons we do not understand, the District Court neither cited § 1983 nor
Finally, the mere existence of a public remedy by the Attorney General is inadequate, without more, to rebut the presumption of a private right of action under § 1983.52 “[T]he existence of a more restrictive private remedy for statutory violations has been the dividing line between those cases in which . . . an action would lie under § 1983 and those in which . . . it would not.”53 And here, § 10101 “contains no express private remedy, much less a more restrictive one.”54
2. Materiality55
Because we find that private plaintiffs may enforce the Materiality Provision via § 1983, we now turn to whether the LCBE’s refusal to count Voters’ ballots for omitting the date violates this provision.56 To answer this query, we must ask
Appellees cannot offer a persuasive reason for how this requirement helped determine any of these qualifications.58 And we can think of none. Appellees try to make several reaching arguments. None of which we find persuasive. For example, Appellees argue that the date confirms a person is qualified to vote from their residence since a person may only vote in an election district s/he has resided in for at least thirty days before the election and one’s residency could change in a matter of days.59 It is unclear how this date would help determine one’s residency, but even supposing it could, this argument assumes the date on the envelope is correct. However, the LCBE counted ballots with obviously incorrect dates.60
Intervenor-Appellee Ritter also argues that the date requirement is “material in determining an elector’s qualification to vote in future elections” because a voter found guilty of knowingly signing a voter declaration that is false is not allowed to vote for four years.61 This argument is
Intervenor-Appellee Ritter also claims that the date requirement “serves a significant fraud-deterrent function” and “prevents the tabulation of potentially fraudulent back-dated votes.”63 Even if this is true, the provision is clear that an “error or omission is not material” unless it serves to “determin[e] whether such individual is qualified under State law to vote in such election.”64 Fraud deterrence and prevention are at best tangentially related to determining whether someone is qualified to vote. But whatever sort of fraud deterrence or prevention this requirement may serve, it in no way helps the Commonwealth determine whether a voter’s age, residence, citizenship, or felony status qualifies them to vote. It must be remembered that all agree that the disputed ballots were received before the 8:00 p.m. deadline on Election Day. It must also be remembered that ballots that were received with an erroneous date were counted. We are at a loss to understand how the date on the outside envelope could be material when incorrect dates—including future dates—are allowable but envelopes where the voter simply did not fill in a date are not. Surely, the right to vote is “made of sterner stuff” than that.
Ironically even the LCBE—the main defendant in this case—at first agreed that the omissions were immaterial.65 The nail in the coffin, as mentioned above, is that ballots were only to be set aside if the date was missing—not incorrect. If the substance of the string of numbers does not matter, then it is hard to understand how one could claim that this requirement has any use in determining a voter’s qualifications. As Voters persuasively argue, “[t]he fact that anything that looks like a date, including a date from decades past or future, is acceptable highlights why the handwritten envelope date cannot be material to accurately assessing anything.” Moreover, the Deputy Secretary for Elections & Commissions explicitly stated that the date is not used “to
Upon receipt, the LCBE timestamped the ballots, rendering whatever date was written on the ballot superfluous and meaningless. It was not entered as the official date received in the SURE system, nor used for any other purpose. Appellees have offered no compelling reasons for how these dates—even if correct, which we know they did not need to be—help determine one’s age, citizenship, residency, or felony status. And we can think of none. Thus, we find the dating provisions under
All five Voters were qualified to vote in Lehigh County when they submitted their mail-in ballots and submitted their ballots on time. Accordingly, because their omissions of the date on their outside envelopes is immaterial to determining their qualifications, the LCBE must count their ballots. Otherwise, the LCBE will violate the Materiality Provision by denying Voters their right to vote based on an omission immaterial to determining their qualifications to vote.
IV. Conclusion
Congress intended § 1983 to be a channel for private plaintiffs to enforce the Materiality Provision of the Civil Rights Act. That provision was created to ensure qualified voters were not disenfranchised by meaningless requirements that prevented eligible voters from casting their ballots but had nothing to do with determining one’s qualifications to vote. Ignoring ballots because the outer envelope was undated, even though the ballot was indisputably received before the deadline for voting serves no purpose other than disenfranchising otherwise qualified voters. This is exactly the type of disenfranchisement that Congress sought to prevent.
Accordingly, we find the dating provisions in
Much about this case is not disputed. And given the lack of genuine disagreement on key questions, I agree that the Appellants can enforce the Materiality Provision of the Civil Rights Act,
For one, the Appellees did not challenge the argument that
For another, the Appellees offered no evidence, and little argument, that the date requirement for voter declarations under the Pennsylvania Election Code,
But more room may exist in a future contest, and just because a statute is sometimes ignored does not mean the
55:28–55:49, and the Lehigh County Board of Elections agreed with all parts of Ritter’s argument, Oral Arg. at 1:01:09–1:01:12. And “appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” See Wright v. Spaulding, 939 F.3d 695, 704 (6th Cir. 2019) (alteration in original) (quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.)).
Those questions are for tomorrow. Today, it is enough to conclude, as the majority does, that the Appellees have explained no material issues left for litigation. For that reason, I concur in the Judgment.