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

v.

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 
2

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 
3

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.)
4

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
5

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
6

Brittany C. Armour

David Newmann

Hogan Lovells US

1735 Market Street

23rd Floor

Philadelphia, PA 19103

Adriel I. Cepeda Derieux

Sophia Lin Lakin

Ari J. Savitzky [ARGUED]

American Civil Liberties Union

125 Borad Street 

18th 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
7

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

17th 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

18th & Cherry Streets

27th Floor

Philadelphia, PA 19103

Counsel for Defendant Appellee Secretary 

Commonwealth of Pennsylvania 
8

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 2nd Street

Suite 201 

Harrisburg, PA 17101
9

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

5

th Floor

Doylestown, PA 18901

 Counsel for Defendant Appellee Bucks County Board 

of Elections
10

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. 17th 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
11

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
12

Alison L. Stohr

City of Philadelphia 

Law Department

15th 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 5th Avenue

14th Floor

New York, NY 100001

Counsel for Amicus Appellee The Protect Democracy 

Project
13

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
14

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 isirrelevant 

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 
15

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

A

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 
16

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.”1 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 

1 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).
17

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 mailin ballot without having to show cause why they cannot make 

it to the polls on Election Day. To do so, a registered voter 
18

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 countyspecific 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). 

B

Until recently, the Materiality Provision received little 

attention from federal appellate courts. When it did, the 

challenged state law prescribed rules governing voter 
19

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 firsttime 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 
20

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,

2 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. 

2 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.”
21

On cross-motions for summary judgment,3the 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 

3 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. 
22

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.4 The RNC and Marino 

4 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); 
23

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 PlaintiffsAppellees. 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.
24

II. Discussion5

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 

5 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.
25

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.”

6

6

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 noncompliant 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 
26

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).
27

A

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). 
28

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. 
29

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)). 
30

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 
31

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 votecasting 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 
32

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
33

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 
34

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.
35

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.”). 

B

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.” 
36

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. 
37

We part from that theory because what results is a statutory 

provision Congress did not write with implications it did not 

intend. 

A

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 
38

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 
39

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 
40

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 
41

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.

B

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 
42

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 
43

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 votecasting 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 mailin 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.1 

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,

2 Ball v. Chapman, 

1 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. 

2 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 
2

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. 
3

under federal law.

3, 4

 The District Court agreed, granted 

Plaintiffs’ motion for summary judgment,

5

and ordered that 

3 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 
4

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 § 
5

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 
6

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 
7

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. 

4 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. 
8

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
9

such ballots be counted in the twelve counties over which the 

Court had Article III jurisdiction.6 Pennsylvania State Conf. of 

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

followsthat 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.

5 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. 

6 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-cv00399, 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 
10

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
11

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 

register to vote and not to the declarations on the envelopes 

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.
12

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

group of documents and, therefore, I respectfully dissent.7

I

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,8the 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 

7 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).

8

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.”).
13

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.

9

 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. 

9

In the November 2022 election, the boards of elections 

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

voters until August 2022.
14

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. 

II

A

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 
15

(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 
16

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

vote. 

1

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).

10 To 

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

Black’s Law Dictionary (4th ed. 1951).11 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 

10 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). 

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

of the English Language Unabr. (1963) (“to refuse to grant”). 
17

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.

12, 13

12 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. 

13 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 
18

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.
19

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”),

14 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 

14 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”). 
20

only registration-related conduct would place limits on the text 

that simply are not there.15 52 U.S.C. § 10101(a)(2)(B). Had 

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

15 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.
21

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”),

16 because the

Materiality Provision already applies to “any record or paper 

relating to any . . . registration,”

17 52 U.S.C. 10101(a)(2)(B).

16 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)). 

17 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, 
22

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.18 

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). 

18 The Majority relies on the fact that the statutory

subsections neighboring the Materiality Provision may more 
23

Third, this interpretation is consistent with the historical 

context in which the Materiality Provision was enacted.19 As 

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)).

19 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 
24

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 
25

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 
26

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 
27

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’”).20

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). 

20 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, 
28

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-philadelphiamail-ballot-rejection-black-latino/). 
29

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 
30

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-cv0844, 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 
31

connection with a voter’s initial registration to vote and those 

required to ensure that the voter’s vote is counted.21, 22

21 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 
32

2

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.

22 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.
33

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).23 “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”).24 “Determine” 

23 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)).

24 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 
34

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”).

25

 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.

26

 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”).

25 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”). 

26 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 
35

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 
36

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.27

declaration was material to determining voter qualifications 

but, as explained herein, the date was not.

27 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,
37

3

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.28 As 

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. 

28 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 
38

a result of the disqualification of those ballots, affected voters 

were deprived of their right to have their votes counted.29 

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,

30 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).31

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.

29 Elections officials confirmed that all rejected ballots

were signed and timely received and came from voters who 

were otherwise registered and qualified to vote. 

30 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).

31 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 
39

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. 
40

I respectfully dissent.