Democratic Senate candidate John Fetterman and other Democrats have filed a federal lawsuit to strike down parts of Pennsylvania’s election law after the state Supreme Court ruled that mail-in ballots with incorrect dates or no dates should not be counted. Fetterman is challenging the state law on constitutional and federal statutes. He has turned to a controversial former lawyer for Hillary Clinton to seek to strike down the provision.
John Fetterman, the Democratic Senatorial Campaign Committee (DSCC) and the Democratic Congressional Campaign Committee (DCCC) is suing Pennsylvania’s 67 county boards of elections over the “Date Instruction,” which prevents counties from counting undated or wrongly dated mail-in ballots (ballots that are timely cast and valid but missing a date on their outer return envelopes). The challenge is brought under the First and Fourteenth Amendments as well as the Materiality Provision of the Civil Rights Act.
The Supreme Court previously ruled that these rules are mandatory in Date Instruction on a Petition for Discretionary Review in In re Canvass of Absentee and Mail-In Ballots of November 3, 2020 General Election, 241 A.3d 1058, 1062 (Pa. 2020). A majority found the language of the law to be clear and mandatory. The requirement is contained in Section 3150.16 of the Election Code:
At any time after receiving an official mail-in ballot, but on or before eight o’clock P.M. the day of the primary or election, the mail-in elector shall, in secret, proceed to mark the ballot only in black lead pencil, indelible pencil or blue, black or blue-black ink, in fountain pen or ball point pen, and then fold the ballot, enclose and securely seal the same in the envelope on which is printed, stamped or endorsed “Official Election Ballot.” This envelope shall then be placed in the second one, on which is printed the form of declaration of the elector, and the address of the elector’s county board of election and the local election district of the elector. The elector shall then fill out, date and sign the declaration printed on such envelope. Such envelope shall then be securely sealed and the elector shall send same by mail, postage prepaid, except where franked, or deliver it in person to said county board of election.
25 P.S. § 3150.16(a) (emphasis added).
The majority held that, regardless of the perceived wisdom of such requirements, it is unambiguously required by Pennsylvania after being approved by the state legislature.
Fetterman is now asking the federal courts to negate the state provision as an “unnecessary impediment [under] the Civil Rights Act and the First and Fourteenth Amendments to the U.S. Constitution.”
The problem is that the legislature clearly concluded that such dates are material to the security of the vote-by-mail system. Fetterman is asking the federal court to simply declare that it is not since Section 101(a) of the Civil Rights Act of 1964 provides:
“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.”
Under the constitutional claims, Fetterman argues that “the Date Instruction serves no legitimate purpose. It is a trivial procedural formality that functions only to disenfranchise eligible voters seeking to vote.”
Fetterman is relying on the controversial former Clinton counsel Marc Elias and his Elias Law Group. We have previously discussed the controversial history of Elias, including accusations by reporters of allegedly denying the funding of the Steele Dossier by the Clinton campaign. He has also been sanctioned by the courts and the Clinton campaign was recently sanctioned by the FEC over its hiding of the funding of the dossier through his prior firm.
Elias has also been criticized for challenging elections when he and other Democratic lawyers denounced Republican challenges as a threat to democracy. Elias later came under intense criticism after a tweet that some have called inherently racist. He was denounced for a tweet where he suggested that Georgia voters could not be expected to be able to read their driver’s licenses correctly.
The use of Elias was a controversy in the prior election when Terry McAuliffe hired Elias to make challenges against now Gov. Glenn Youngkin’s election.
In this case, local counsel is Adam C. Bonin, who signed the complaint below.
Here is the complaint: Fetterman lawsuit