PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 22-1499

_______________

MS. LINDA MIGLIORI; FRANCIS J. FOX; RICHARD E. 

RICHARDS; KENNETH RINGER; SERGIO RIVAS,

 Appellants

v.

ZACHARY COHEN,

Intervenor – Plaintiff

v.

LEHIGH COUNTY BOARD OF ELECTIONS

v. 

DAVID RITTER,

Intervenor - Defendant

 

________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

No. 5-22-cv-00397

District Judge: Honorable Joseph F. Leeson

______________________

Argued: May 18, 2022 

_______________

Before: McKEE, GREENAWAY JR., and MATEY, Circuit 

Judges.

(Opinion filed: May 27, 2022)
2

Adriel I. Cepeda Derieux

Sophia Lin Lakin

Stephen A. Loney, Jr. 

Ari J. Savitzky [Argued]

Marian K. Schneider

Richard T. Ting

Witold J. Walczak

American Civil Liberties Union

125 Broad Street

18th Floor

New York, NY 10004

Connor P. Hayes

110 Piper Drive

Pittsburgh, PA 15234

Counsel for Plaintiff-Appellants

Adam C. Bonin

400

121 South Broad Street

Philadelphia, PA 19107

Counsel for Intervenor-Plaintiff-Appellee

Joshua Mazin [Argued]

Lucas J. Repka

RepkaMazin

108 East Center Street

Nazareth, PA 18064

Counsel for Intervenor-Defendant-Appellee

James G. Gorman

Francis G. Notarianni

Shohin H. Vance

Joshua J. Voss [Argued]

Samantha G. Zimmer

Kleinbard

Three Logan Square

1717 Arch Street, 5th Floor 

Philadelphia, PA 19103

Counsel for Intervenor-Defendant-Appellee

Jacob B. Boyer [Argued]

Michael J. Fischer
3

Office of Attorney General of Pennsylvania

1600 Arch Street

Suite 300

Philadelphia, PA 19103

Counsel for Amicus Appellant Commonwealth 

of Pennsylvania

Noah Bokat-Lindell [Argued]

Tovah R. Calderon

United States Department of Justice

Civil Rights Division, Appellate Section

P.O. Box 14403

Ben Franklin Station

Washington, DC 20044

Counsel for Amicus Appellant United States of 

America

Edward M. Wenger

Holtzman Vogel Baran Torchinsky & Josefiak

2300 N Street N.W. 

Suite 643-A

Washington, D.C. 20037

Counsel for Amicus Appellee The Honest 

Elections Project

Zachary M. Wallen

301 South Hills Village Drive

Suite LL200-420

Pittsburgh, PA 15241

Counsel for Amici Appellee Speaker 

Pennsylvania House of Representatives, 

President Pro Tempore Pennsylvania Senate, 

Majority Leader of the House of 

Representatives, Majority Leader of the 

Pennsylvania Senate
4

_____________

OPINION

 ______________

McKee, Circuit Judge.

The Materiality Provision of the Civil Rights Act1

prohibits any “person acting under color of law [from] 

deny[ing] the right of any individual to vote in any election 

because of an error or omission . . . if such error or omission 

is not material in determining whether such voter is qualified . 

. . to vote in such election.”2In Pennsylvania, an error or 

omission is material to a voter’s qualifications to vote if it is 

pertinent to either the voter’s age, citizenship, residency, or 

felony status3 or the timeliness of the ballot.4

We are asked to determine if a date on the outside of a 

mail-in ballot, required under state law, is material to the 

voter’s qualifications and eligibility to vote. However, in 

resolving that question, we must decide whether private 

plaintiffs can even bring this suit to enforce the Materiality 

Provision.

We hold that private plaintiffs have a private right of 

action to enforce § 10101 under 42 U.S.C. § 1983, and further 

hold that the dating provisions contained in 25 Pa. Cons. Stat.

§§ 3146.6(a) and 3150.16 are immaterial to a voter’s 

qualifications and eligibility under § 10101(a)(2)(B). 

Accordingly, we will remand to the District Court and direct 

that Court to enter an order that the undated ballots be 

counted. 

I. Factual Background

In 2019, the Pennsylvania General Assembly enacted 

new mail-in voting provisions, which permitted all registered 

voters to vote by mail.5 To receive the mail-in ballot, a voter 

must first complete an application that requires the voter to 

provide his or her name, address of registration, and proof of 

1 52 U.S.C. § 10101(a)(2)(B).

2

Id.

3 See 25 Pa. Cons. Stat. §§ 1301(a), 2811, 3150.16(b).

4

Id. § 3146.6. 

5 Act of Oct. 31, 2019, PA. LAWS 552, No.77 § 8.
5

identification.6 The county board of elections then verifies 

that information and compares the application to the 

information on record for the voter.7If the information on the 

request for a mail-in-ballot is consistent with the registration 

information for that voter, the voter receives a ballot package 

that contains a ballot, a secrecy envelope, a return envelope, 

and instructions for completing the absentee or mail-in 

ballot.8 The voter casts his or her vote by marking the ballot, 

placing it in the secrecy envelope, and then placing the 

secrecy envelope in the return envelope.9 Under the 

Pennsylvania Election Code, the voter must “fill out, date 

and sign the declaration,” otherwise known as the “voter 

declaration” printed on the return envelope.10 The voter then 

mails or delivers the ballot to the county elections board.11

Delivery is timely if received by the board of elections by 

8:00 p.m. on Election Day.12 When county boards of elections 

receive a mail-in ballot, the ballot’s envelope is stamped with 

the date of receipt and logged into the Statewide Uniform 

Registry of Electors (SURE) system.13

The Lehigh County Board of Elections (LCBE) held 

an election on November 2, 2021, to fill vacancies for the

office of Judge of the Court of Common Pleas of Lehigh 

County. Six candidates ran for three available judgeships. 

Candidates Thomas Caffrey and Thomas Capehart received 

the most votes and were sworn into office. During the 

counting of the ballots, the LCBE set aside 257 out of 

approximately 22,000 mail-in or absentee ballots that lacked a 

handwritten date next to the voter declaration signature. The 

LCBE also received four ballots with the date in the wrong 

location on the outer envelope and set those aside. It is 

undisputed that all of these ballots were received by the 

deadline of 8:00 p.m. on election day. As of November 15, 

6 25 Pa. Cons. Stat. §§ 3146.2, 3150.12.

7 Pa. Dep’t of State, Guidance Concerning Examination of 

Absentee and Mail-In Ballot Return Envelopes at 2 (Sept. 11, 

2020).

8

JA 165.

9

JA 166.

10 25 Pa. Cons. Stat. §§ 3146.6(a), 3150.16(a).

11 Id. 

12 Id.

13 Id. § 1222. 
6

2021, candidate David Ritter received the third most votes in 

the election, which is seventy-four votes more than the 

candidate in fourth place, Zachary Cohen. 

II. Procedural History

The LCBE convened a public hearing on November 

15, 2021, to consider whether to count the disputed (i.e.,

undated) ballots. During the hearing, the chief clerk testified 

and offered his conclusion that the undated declaration ballots 

were not effective and should not be counted because the 

declaration on the outside envelope was undated. Similarly, 

the LCBE’s solicitor testified that he understood that the 

Pennsylvania Department of State had advised that a dated 

declaration was required. There was also testimony that the 

LCBE “ha[d] decided to count ballots where voters provided 

their birthday dates.”14 The LCBE voted 3-0 to count the 

undated ballots. 

On November 17, 2021, Ritter appealed with the 

Lehigh County Court of Common Pleas. An evidentiary 

hearing and oral argument followed. The trial court later 

issued an opinion and order on November 30, which affirmed 

the LCBE’s decision to count the disputed ballots. 

Ritter then appealed the trial court’s decision to the 

Commonwealth Court of Pennsylvania. The court granted a 

stay pending to the Court of Common Pleas. That court 

prohibited the LCBE from opening and counting the disputed 

ballots. On January 3, 2022, the court issued its opinion and 

order, ultimately concluding that the undated ballots should 

not be counted. However, on January 27, the trial court 

entered an order, directing the LCBE to count the four 

misdated ballots but not the 257 undated ballots.15

On January 31, Plaintiffs Linda Migliori, Sergio Rivas, 

Richard Richards, Francis J. Fox, and Kenneth Ringer 

(Voters) sued the LCBE in the Eastern District of 

Pennsylvania. They argued that the LCBE’s decision to not 

count their votes simply because they had not entered the date 

on the outside envelope violated their rights under the 

14 JA 254. 

15 The Supreme Court of Pennsylvania denied a petition for 

allowance of appeal by the LCBE on the same day. Ritter v. 

Lehigh Cnty. Bd. of Election, No. 9 MAL 2022, 2022 WL 

244122 (Pa. Jan. 27, 2022). 
7

Materiality Provision of the Civil Rights Act. Ritter and 

Cohen both intervened in the action, and the parties crossmoved for summary judgment.16

Voters are five individuals between the ages of 66 and 

76 residing in Lehigh County. Some are Democrats and some 

are Republicans. They used mail-in ballots in the November 

2021 county elections.17 Their ballots, along with 252 other 

Lehigh County mail-in ballot voters,

18 were set aside and not 

counted merely because they did not write a date on the 

envelope.19 We again note that it is undisputed that their 

ballots were received before the 8:00 p.m. deadline and the 

only thing that prevents their vote from being counted is the 

fact that they did not enter a date on the outside envelope.20

On March 16, 2022, the District Court granted the 

LCBE and Ritter’s motions for summary judgment.21 The 

Court held that there was no private right of action to enforce 

the Materiality Provision.

22 This expedited appeal followed. 

III. Discussion23

As noted at the outset, we must determine whether the

District Court erred in finding Voters have no right of action

to enforce the Materiality Provision of the Civil Rights Act. 

16 Migliori v. Lehigh Cnty. Bd. of Elections, No. 5:22-cv00397, 2022 WL 802159, at *1 (E.D. Pa. Mar. 16, 2022). 

17 Id.

18 According to Cohen’s campaign, of the disputed ballots the 

“average age of these voters was 71 at the time they voted. 

224 of them were over 55 and 193 were over 65. Fifteen of 

the [d]isputed [b]allots came from voters over the age of 90, 

one of whom was 100 years old and another was 103 years 

old.” JA 169. 

19 Migliori, 2022 WL 802159, at *1.

20 As noted above, their votes would have been counted if 

they had entered any date, even an obviously incorrect one.

21 Migliori, 2022 WL 802159, at *15. 

22 Id. 

23 The District Court had jurisdiction pursuant to 28 U.S.C. § 

1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. We 

review a grant of summary judgment de novo. Tundo v. 

County of Passaic, 923 F.3d 283, 286 (3d Cir. 2019). We also 

review a district court’s legal conclusions de novo. Acierno v. 

Cloutier, 40 F.3d 597, 609 (3d Cir. 1994) (en banc).
8

We conclude that it did and reverse. We hold that Voters may 

enforce the Materiality Provision of the Civil Rights Act (52 

U.S.C. § 10101(a)(2)(B)) by an action brought under 42 

U.S.C. § 1983. Accordingly, we need not decide whether 

Congress also intended to create an implied right of action.24

1. Enforcement Via 42 U.S.C. § 198325

In Gonzaga University v. Doe, the Supreme Court held 

that a federal statute that unambiguously confers an 

individual right is presumptively enforceable by private 

plaintiffs via § 1983.26 Accordingly, to determine whether a 

federal statute is enforceable by private plaintiffs via § 1983, 

we must first ask “whether Congress intended to create a 

federal right.”27 If a federal right is found, we then ask 

24 Moreover, this matter is expedited and comes before us on 

cross motions for summary judgment. There are no genuine 

disputes of material fact for the District Court to resolve. We 

will resolve the underlying legal issues in the interest of 

judicial economy rather than remanding the case back to the 

District Court for a legal ruling that could result in further 

delay and an additional appeal. See Hudson United Bank v. 

LiTenda Mortg. Corp. 142 F.3d 151, 159 (3d Cir. 1998). 

25 Appellees argue that Voters waived whether they could 

enforce the Materiality Provision via § 1983 because it “was 

not developed below.” Appellee Ritter Br. at 33; see also 

Appellee LCBE Br. at 9. Though they describe the issue as 

waiver, it is unclear whether the Appellees are really making 

a forfeiture argument here because they contend that Voters at 

no point adequately developed this argument below. See 

Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 

13, 17 n.1 (2017) (“The terms waiver and forfeiture—though 

often used interchangeably by jurists and litigants—are not 

synonymous. ‘[F]orfeiture is the failure to make the timely 

assertion of a right [;] waiver is the ‘intentional 

relinquishment or abandonment of a known right.’” 

(alterations in original)). Regardless, we find this argument 

unpersuasive as Voters clearly pled that they were asserting 

their claims through § 1983 throughout their complaint. 

26 536 U.S. 273, 284 (2002). 

27 Id. at 283 (emphasis omitted). 
9

whether defendants rebutted the presumption that it can be 

enforced in an action under § 1983.28

The District Court found that the Materiality

Provision unambiguously confers a personal right because it 

“places ‘[a]ll citizens’ qualified to vote at the center of its 

import and provides that they ‘shall be entitled and allowed’ 

to vote.”29 We agree. 

Accordingly, we need only decide if Appellees

rebutted the presumption that this right is enforceable under § 

1983. A defendant can rebut the presumption but only by 

“showing that Congress ‘specifically foreclosed a remedy 

under § 1983.’”30 The presumption is generally only rebutted 

in exceptional cases.31 To rebut the presumption, a defendant 

must point to either “specific evidence from the statute itself” 

or “a comprehensive enforcement scheme that is incompatible 

with individual enforcement under § 1983.”32 Appellees

cannot establish either. 

The text of § 10101 does not preclude a § 1983 

remedy, and neither Appellee argues that it does. Specifically, 

§ 10101(d) explains that federal courts “shall have 

jurisdiction of proceedings instituted pursuant to this section 

and shall exercise the same without regard to whether the 

party aggrieved shall have exhausted any administrative or 

other remedies.”33 Thus, this section specifically 

contemplates an aggrieved party (i.e., private plaintiff) 

bringing this type of claim in court. It does not shut the door 

on the mechanisms by which a party may pursue enforcing 

their right under the statute. 

Nor does § 10101 include a comprehensive 

enforcement scheme that is incompatible with individual 

enforcement under § 1983 and therefore indicative of a 

congressional intent to foreclose a private right of action. The 

Supreme Court has found that statutory enactments preclude 

private enforcement actions pursuant to § 1983 in very few 

instances. In doing so, the Court “ha[s] placed primary 

28 See id.

29 Migliori, 2022 WL 802159, at *10 (alteration in original).

30 Gonzaga, 536 U.S. at 284 n.4 (citing Smith v. Robinson, 

468 U.S. 992, 1004–05 n.9 (1984)). 

31 Livadas v. Bradshaw. 512 U.S. 107, 133 (1994).

32 Gonzaga, 536 U.S. at 284 n.4.

33 52 U.S.C. § 10101(d). 
10

emphasis on the nature and extent of that statute’s remedial 

scheme.”34 In Middlesex County Sewerage Authority v. 

National Sea Clammers Ass’n, the Court discussed how the 

relevant statute both provided “a panoply of enforcement 

options, including noncompliance orders, civil suits, and 

criminal penalties” for the agency’s use and authorized 

“private persons to initiate enforcement actions” in several 

provisions.35 The Court thus concluded it was “hard to 

believe that Congress intended to preserve the § 1983 right of 

action when it created so many specific statutory remedies.”36

In Smith v. Robinson, the Court explained how “the review 

scheme in the [statute] permitted aggrieved individuals to 

invoke ‘carefully tailored’ local administrative procedures 

followed by federal judicial review.”37 The Court explained 

“that Congress could not possibly have wanted [individuals] 

to skip these procedures and go straight to court by way of § 

1983.”38

Appellees argue that the inclusion of a right of action 

for the United States precludes a right of action for private 

plaintiffs.39 It is true that the statute refers to the Attorney 

General’s enforcement ability.40 But this is distinguishable 

from the agency authorizations recognized in Sea Clammers. 

Here, as Intervenor-Appellee Ritter concedes, “the Attorney 

General’s enforcement authority is not made exclusive.”41

Nor does this statute include an express provision for only 

specific situations for which private suits are authorized. 

Whereas in Sea Clammers, because the statute expressly 

authorized citizen suits in specific provisions, the Court could 

not assume that Congress intended to authorize additional 

judicial remedies for private citizens where it was not 

34 Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 253 

(2009). 

35 Blessing v. Freestone, 520 U.S. 329, 347 (1997) (citing 

Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers 

Ass’n., 453 U.S. 1, 13–14, 20 (1981)). 

36 Id. 

37 Id. (quoting Smith v. Robinson, 468 U.S. 992, 1009 (1984)).

38 Id. (citing Smith, 468 U.S. at 1011).

39 See Appellee Ritter Br. at 38–39; Appellee LCBE Br. at 12. 

40 See 52 U.S.C. § 10101(c).

41 Appellee Ritter Br. at 39. 
11

expressly stated.42 Because the statute here does not contain 

this type of limiting provision and the Attorney General’s 

enforcement authority is not exclusive, the presumption of a 

private right of enforcement under § 1983 is simply not 

rebutted.

Moreover, this case is also distinguishable from Smith. 

Unlike in Smith, this statute does not provide for “aggrieved 

individuals to invoke ‘carefully tailored’ local administrative 

procedures.”43 Instead, as mentioned above, the statute 

expressly gives aggrieved parties direct access to the federal 

courts “without regard to whether the party aggrieved shall 

have exhausted any administrative or other remedies.”44 This 

reinforces our conclusion that the presumption of a private 

right of action under § 1983 is not rebutted. 45

In holding that there was no private right to enforce the 

Materiality Provision of the Civil Rights Act, the District 

Court concluded that under Wisniewski v. Rodale, Inc., the 

Attorney General’s authority to enforce § 10101 is 

inconsistent with a private remedy and therefore rebuts the 

presumption that arises under Gonzaga.

46 However, 

Wisniewski involved an implied right of action that did not 

implicate § 1983.47 Moreover, for reasons we do not 

understand, the District Court neither cited § 1983 nor

42 Sea Clammers, 453 U.S. at 14–15. 

43 Blessing, 520 U.S. at 1363 (quoting Smith, 468 U.S. at 

1009). 

44 52 U.S.C. § 10101(d). 

45 The Court also found that a statute precluded § 1983 claims 

in City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 120 

(2005). Intervenor-Appellee Ritter relies on this case as 

support for whether the presumption was rebutted here. His 

reliance is misguided, however, as that case found the 

relevant statute precluded § 1983 claims because Congress 

expressly narrowed the availability of privately enforceable 

judicial remedies. Id. at 121. Whereas here, the statute does 

not provide for a limited private remedial scheme.

46 Migliori, 2022 WL 802159, at *10.

47 Wisniewski v. Rodale, Inc., 510 F.3d 294, 301 (3d Cir. 

2007). 
12

engaged in Gonzaga’s two-part test.

48 Moreover, Wisniewski

is readily distinguishable because it involved comprehensive

administrative proceedings, including a provision that 

allowed an administrative agency to bring civil suits. Section

10101(c) only provides for suits by the Attorney General. It 

does not establish a cause of action for private individuals.

When Congress added a provision for civil enforcement by 

the Attorney General,49 it acknowledged that private 

individuals had enforced the substantive rights in § 10101(a) 

via § 1983 for nearly a century.50 Moreover, it did not make 

the Attorney General’s enforcement mandatory.51

Finally, the mere existence of a public remedy by the 

Attorney General is inadequate, without more, to rebut the 

presumption of a private right of action under § 1983.52

“[T]he existence of a more restrictive private remedy for 

statutory violations has been the dividing line between those 

cases in which . . . an action would lie under § 1983 and those 

in which . . . it would not.”53 And here, § 10101 “contains no 

express private remedy, much less a more restrictive one.”54

48 The District Court applied only the implied right of action 

framework under Alexander v. Sandoval, 532 U.S. 275 

(2001). Migliori, 2022 WL 802159, at *12–13. Under this 

test, an implied right of action exists if “a statute . . . 

manifest[s] Congress’s intent to create (1) a personal right, 

and (2) a private remedy.” Three Rivers Ctr. for Indep. Living 

v. Housing Auth. of City of Pittsburgh, 382 F.3d 412, 421 (3d 

Cir. 2004) (citing Sandoval, 532 U.S. at 286). The District 

Court did cite Gonzaga in answering the first prong of this 

test, but that is because both the § 1983 analysis under 

Gonzaga and the implied right of action analysis under 

Sandoval begin with this question. See Migliori, 2022 WL 

802159, at *12. As stated above, because we need not decide 

whether Congress also intended to create an implied right of 

action, we need not engage with the test under Sandoval. 

49 52 U.S.C. § 10101(c). 

50 H.R. REP. No. 85-291, at 1977 (1957).

51 52 U.S.C. § 10101(c) (“[T]he Attorney General may 

institute for the United States . . . a civil action . . . .” 

(emphasis added)). 

52 See Fitzgerald, 555 U.S. at 256. 

53 Id. (first omission in original)

54 Id.
13

Accordingly, for all the reasons stated above, we find that 

Appellees have failed to rebut the presumption of an 

enforceable right under § 1983. We therefore hold that private 

plaintiffs may enforce the Materiality Provision via § 1983, 

and the District Court erred in finding that Voters have no

right of action. 

2. Materiality55

Because we find that private plaintiffs may enforce the 

Materiality Provision via § 1983, we now turn to whether the 

LCBE’s refusal to count Voters’ ballots for omitting the date 

violates this provision.56 To answer this query, we must ask 

55 Intervenor-Appellee Ritter has argued that Voters claim is 

barred under the doctrine of laches. Appellee Ritter Br. at 22. 

We review a decision about the doctrine of laches for abuse 

of discretion. Kars 4 Kids, Inc. v. America Can!, 8 F.4th 209, 

219 n.10 (3d Cir. 2021). This argument is unavailing and 

merits only the briefest of discussion because Voters timely 

filed their complaint. We thus do not find that the District 

Court abused its discretion in concluding that “Ritter has 

failed to established Plaintiffs engaged in inexcusable delay 

in the filing of this matter.” Migliori, 2022 WL 802159, at *7. 

We also reject Ritter’s argument that Voters lack Article III 

standing for the remedy they seek. Ritter confuses standing 

for scope of remedy, which is non-jurisdictional and thus 

subject to forfeiture. See Barna v. Bd. of Sch. Dirs. of Panther 

Valley Sch. Dist., 877 F.3d 136, 147 (3d Cir. 2017). Because 

this argument was not raised below, it is forfeited.

56 The Materiality Provision applies to any “record or paper 

relating to any application, registration, or other act requisite 

to voting.” § 10101(a)(2)(B). We find that the mail-in ballot 

squarely constitutes a paper relating to an act for voting. We 

reject Appellees’ argument that the Materiality Provision does 

not apply here because the provision applies only to instances 

of racial discrimination and voter registration. Appellee Ritter 

Br. at 44, 46. When interpreting a statute, we first start with 

the plain meaning of the language. Mitchell v. Horn, 318 F.3d 

523, 535 (3d Cir. 2003). If the plain meaning is 

“unambiguous, then the first [step] is also the last.” In re 

Phila. Newspapers, LLC, 599 F.3d 298, 304 (3d Cir. 2010) 

(quoting Conn. Nat’l Bank v. Germain, 503 U.D. 249, 253–54 
14

whether this requirement is material in determining whether 

such individual is qualified to vote under Pennsylvania law.

In Pennsylvania, a voter is qualified if, by Election Day, “they 

are 18 years old, have been a citizen for at least one month, 

have lived in Pennsylvania and in their election district for at 

least thirty days, and are not imprisoned for a felony 

conviction.”57 In other words, the requirement is material if it 

goes to determining age, citizenship, residency, or current 

imprisonment for a felony. 

Appellees cannot offer a persuasive reason for how 

this requirement helped determine any of these 

qualifications.

58 And we can think of none. Appellees try to 

make several reaching arguments. None of which we find 

persuasive. For example, Appellees argue that the date 

confirms a person is qualified to vote from their residence 

since a person may only vote in an election district s/he has 

resided in for at least thirty days before the election and one’s 

residency could change in a matter of days.59 It is unclear how 

this date would help determine one’s residency, but even 

supposing it could, this argument assumes the date on the 

envelope is correct. However, the LCBE counted ballots with 

obviously incorrect dates.60

Intervenor-Appellee Ritter also argues that the date 

requirement is “material in determining an elector’s 

qualification to vote in future elections” because a voter 

found guilty of knowingly signing a voter declaration that is 

false is not allowed to vote for four years.61 This argument is 

(1992)). Here, the text of the provision does not mention 

racial discrimination and includes “other act[s] requisite to 

voting” in a list alongside registration. Thus, we cannot find 

that Congress intended to limit this statute to either instances 

of racial discrimination or registration. 

57 25 Pa. Cons. Stat. §§ 1301(a), 2811.

58 See Appellee Ritter Br. at 49–50.

59 Id. at 50. 

60 The Deputy Secretary for Elections & Commissions sent an 

email on behalf of the Pennsylvania Department of State 

reminding counties that “there is no basis to reject a ballot for 

putting the ‘wrong’ date on the envelope, nor is the date 

written used to determine the eligibility of the voter. You 

should process these ballots normally.” JA 192.

61 Appellee Ritter Br. at 54.
15

particularly unpersuasive. Under the provision, materiality is 

limited to errors or omissions determining qualification “to 

vote in such election,” not future elections.62

Intervenor-Appellee Ritter also claims that the date 

requirement “serves a significant fraud-deterrent function” 

and “prevents the tabulation of potentially fraudulent backdated votes.”63 Even if this is true, the provision is clear that 

an “error or omission is not material” unless it serves to

“determin[e] whether such individual is qualified under State 

law to vote in such election.”64 Fraud deterrence and 

prevention are at best tangentially related to determining 

whether someone is qualified to vote. But whatever sort of 

fraud deterrence or prevention this requirement may serve, it 

in no way helps the Commonwealth determine whether a 

voter’s age, residence, citizenship, or felony status qualifies 

them to vote. It must be remembered that all agree that the 

disputed ballots were received before the 8:00 p.m. deadline 

on Election Day. It must also be remembered that ballots that 

were received with an erroneous date were counted. We are at 

a loss to understand how the date on the outside envelope 

could be material when incorrect dates—including future 

dates—are allowable but envelopes where the voter simply 

did not fill in a date are not. Surely, the right to vote is “made 

of sterner stuff” than that. 

Ironically even the LCBE—the main defendant in this 

case—at first agreed that the omissions were immaterial.65

The nail in the coffin, as mentioned above, is that ballots were 

only to be set aside if the date was missing—not incorrect. If 

the substance of the string of numbers does not matter, then it 

is hard to understand how one could claim that this 

requirement has any use in determining a voter’s 

qualifications. As Voters persuasively argue, “[t]he fact that 

anything that looks like a date, including a date from decades 

past or future, is acceptable highlights why the handwrittenenvelope date cannot be material to accurately assessing 

anything.” Moreover, the Deputy Secretary for Elections & 

Commissions explicitly stated that the date is not used “to 

62 52 U.S.C. § 10101(a)(2)(B) (emphasis added). 

63 Appellee Ritter Br. at 55.

64 52 U.S.C. § 10101(a)(2)(B).

65 Migliori, 2022 WL 802159, at *3 (“[T]he LCBE voted 

unanimously to count the disputed ballots.”). 
16

determine the eligibility” (i.e., qualifications) of a voter.66

This, without more, slams the door shut on any argument that 

this date is material.

Upon receipt, the LCBE timestamped the ballots, 

rendering whatever date was written on the ballot superfluous 

and meaningless. It was not entered as the official date 

received in the SURE system, nor used for any other purpose. 

Appellees have offered no compelling reasons for how these 

dates—even if correct, which we know they did not need to 

be—help determine one’s age, citizenship, residency, or 

felony status. And we can think of none. Thus, we find the 

dating provisions under 25 Pa. Cons. Stat. §§ 3146.6(a) and 

3150.16(a) are immaterial under the Materiality Provision. 

All five Voters were qualified to vote in Lehigh 

County when they submitted their mail-in ballots and 

submitted their ballots on time. Accordingly, because their 

omissions of the date on their outside envelopes is immaterial 

to determining their qualifications, the LCBE must count their 

ballots. Otherwise, the LCBE will violate the Materiality 

Provision by denying Voters their right to vote based on an 

omission immaterial to determining their qualifications to 

vote. 

IV. Conclusion

Congress intended § 1983 to be a channel for private 

plaintiffs to enforce the Materiality Provision of the Civil

Rights Act. That provision was created to ensure qualified 

voters were not disenfranchised by meaningless requirements 

that prevented eligible voters from casting their ballots but 

had nothing to do with determining one’s qualifications to 

vote. Ignoring ballots because the outer envelope was 

undated, even though the ballot was indisputably received 

before the deadline for voting serves no purpose other than 

disenfranchising otherwise qualified voters. This is exactly 

the type of disenfranchisement that Congress sought to 

prevent. 

Accordingly, we find the dating provisions in 25 Pa. 

Cons. Stat. §§ 3146.6(a) and 3150.16(a) are immaterial under 

§ 10101(a)(2)(B). There is no basis on this record to refuse 

to count undated ballots that have been set aside in the 

November 2, 2021, election for Judge of the Common Pleas 

66 JA 192. 
17

of Lehigh County. We will thus remand this matter to the 

District Court and direct that Court to enter an order that the 

undated ballots be counted.
MATEY, Circuit Judge, concurring in the judgment.

Much about this case is not disputed. And given the lack 

of genuine disagreement on key questions, I agree that the

Appellants can enforce the Materiality Provision of the Civil

Rights Act, 52 U.S.C. § 10101(a)(2)(B), under 42 U.S.C. 

§ 1983. 

For one, the Appellees did not challenge the argument 

that § 10101(a)(2)(B) creates an individual federal right.1 At 

all.2 That is significant because “[o]nce a plaintiff demonstrates 

1 We have held that a statute creates a personal right 

when it satisfies all three of Blessing v. Freestone’s factors: 

“First, Congress must have intended that the provision in 

question benefit the plaintiff. Second, the plaintiff must 

demonstrate that the right assertedly protected by the statute is 

not so ‘vague and amorphous’ that its enforcement would 

strain judicial competence. Third, the statute must 

unambiguously impose a binding obligation on the 

States . . . [i.e., it] must be couched in mandatory, rather than 

precatory, terms.” Ass’n of N.J. Rifle & Pistol Clubs Inc. v. 

Port Auth. of N.Y. & N.J., 730 F.3d 252, 254 (3d Cir. 2013)

(alteration in original) (quoting Blessing v. Freestone, 520 U.S. 

329, 340–41 (1997)). The statute must also use “rights-creating 

language,” Lewis v. Alexander, 685 F.3d 325, 345 (3d Cir. 

2012) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 287

(2002)), and focus on the individuals protected, not the entity 

regulated, N.J. Primary Care Ass’n v. N.J. Dep’t of Hum. 

Servs., 722 F.3d 527, 538 (3d Cir. 2013) (citing Gonzaga, 536 

U.S. at 287–90).

2 At oral argument, Ritter conceded that the Materiality 

Provision contains rights-creating language, Oral Arg. at 
2

that a statute confers an individual right, the right is 

presumptively enforceable by § 1983.” Sabree ex rel. Sabree 

v. Richman, 367 F.3d 180, 183 n.7 (3d Cir. 2004) (quoting 

Gonzaga, 536 U.S. at 284).

For another, the Appellees offered no evidence, and 

little argument, that the date requirement for voter declarations 

under the Pennsylvania Election Code, 25 Pa. Cons. Stat.

§§ 3146.6(a), 3150.16(a), is material as defined in 

§ 10101(a)(2)(B). Instead, they agree that no party conteststhat 

voter declarations with inaccurate dates were counted in this 

election.

3 Add up both concessions, and the Appellees have 

little room left to defend the District Court’s decision. 

But more room may exist in a future contest, and just

because a statute is sometimes ignored does not mean the 

55:28–55:49, and the Lehigh County Board of Elections agreed 

with all parts of Ritter’s argument, Oral Arg. at 1:01:09–

1:01:12. And “appellate courts do not sit as self-directed 

boards of legal inquiry and research, but essentially as arbiters 

of legal questions presented and argued by the parties before 

them.” See Wright v. Spaulding, 939 F.3d 695, 704 (6th Cir. 

2019) (alteration in original) (quoting Carducci v. Regan, 714 

F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.)).

3 Which follows the current guidance of the 

Pennsylvania Department of State that “there is no basis to 

reject a ballot for putting the ‘wrong’ date on the envelope, nor 

is the date written used to determine the eligibility of the voter. 

You should process these ballots normally.” (App. at 79, 192.) 

This guidance was confirmed by members of the Lehigh 

County Board of Elections who stated they would even count 

ballots with birthdates written instead of the date the voter 

signed the declaration. (App. at 254–55.)
3

statute is always immaterial. Administrative guidance, 

particularly on the process of counting ballots, has been known 

to fluctuate. Perhaps the Commonwealth will change its rules

raising fresh facts and unforeseen outcomes in a different race. 

Note, too, the importance of the time- and date-stamped ballots 

here produced by the SURE system.

4 A system that, despite its 

name, could fail or freeze, or just run out of funding down the 

road.

5 Surely, the lack of that evidence might form a different

case and controversy, one where the materiality of the date on 

the voter declaration might make a difference. 

Those questions are for tomorrow. Today, it is enough 

to conclude, as the majority does, that the Appellees have 

explained no material issues left for litigation. For that reason, 

I concur in the Judgment.

4 25 Pa. Cons. Stat. § 1222 (establishing Pennsylvania’s 

electronic voter registration system, the SURE system, to be 

implemented by regulations from the Commonwealth’s 

Department of State).

5

Indeed, the only regulation that requires “[r]eturned 

absentee ballots [to] be immediately stamped showing the time 

and date of receipt” makes no mention of the SURE system. 4 

Pa. Code § 171.14(a).