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 J R ., 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 C enter 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. Fischer3 Office of Attorney General of Pennsylvania

1600 Arch Street

Suite 300 Philadelphia, PA 19103

Counsel for Amicus Appe llant 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 Stat es 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 Senate4 _____________ OPINION

______________

McKee, Circuit Judge.

The Materiality Provision of the Civil Rights Act 1 prohibits any “person acting under color of law [from] deny[ing] the right of any individual to vote in any election

because of an error or omission

. . . if such error or omission is not material in determining whether such voter is qualified .

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

omission is material to a voter’s qualifications to vote if it is pertinent to either the voter’s age, citizenship, residency, or felony status 3 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. H owever, in resolving that question

, w e 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 provision s 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 C ourt to enter an order that the undated ballots be

counted.

I. Factual Background

In 2019, the Pennsylvania General Assembl y 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, P A

. L AWS 552, No.77 § 8.5 identification. 6 The county board of elections then verifies

th at information and compares the application to the

information on record for the voter. 7 I f 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 cast s his or her vo te by marking the ballot, plac ing 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

dec laration” 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 in to the Statewide Uniform Registry of Electors (SURE) system. 13

The Lehigh County Board of Elections (LCBE) held

an election o n November 2, 2021

, to fill vacancies for t he 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 L CBE set aside 257 out of

a pproximately 22,000 mail

- in or absentee ballots that lacked a handwritten date next to the voter declaration signature. The

LCBE also received f

our ballots with the date in the wrong location on the outer envelope and set those as ide. 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 i n 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 th e declaration on the outside envelope was undated. Similarly,

the LCBE’s solicitor testified that he understood that the

P ennsylvania Dep artment 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 d isputed b allots.

Ritter t hen 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 d isputed

b allots. On January 3, 2022, the court i ssued its opinion and order, ultimately conclud ing that the undated ballots should

not be counted. However, o n 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 Januar y 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 en tered 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 cross

moved for summary judgment. 16

Voters are five individuals between th e 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

C ourt held that there was no private right of action to enforce

the Materiality Prov ision

. 22 This expedited appeal follow ed

.

III. Discussion 23

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

- cv

0 0397, 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.

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

review a district cou rt’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. § 1983 25

In Gonzaga University v. Doe

, the Suprem e 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. W e 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.

Li T enda 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 d escribe 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 clear ly 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 cas es. 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 te xt 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.

Nationa l 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 enforc ement 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 “th e 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 t his is distinguishable from the agency authorizations recognized in Sea Clammers

. Here, as Intervenor

- Appellee Ritter concedes, “the Attorney

General’s enforcement au thority 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 suit s 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. Fre estone , 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

enf orcement 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 administ rative 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 cite d § 1983 n or

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 misguid ed, 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 remed ial scheme.

46 Migliori , 2022 WL 802159, at * 10.

47 Wisniewski v. Rodale, Inc. , 510 F.3d 294, 301 (3d Cir. 2007).12 engage d 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.

W hen Congress added a provision for civil enforcement by

the Attorney General, 49 it acknowledged that private

individuals had enforc ed 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 i mplied 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. R EP

. N o . 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, f

or all the reasons sta ted above, we find that Appellees have failed to rebut the presumption of an enforceable right under § 1983. W e therefore hold th at private plaintiffs may enforce the Materiality Provision via § 1983

, and the District Court erred in finding that Voters hav e no right of action.

2. Materiality 55

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

violate s 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 discuss ion 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 an d 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

– 5414 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, c itizenship, residency, or current imprisonment for a felony. Appellees can not 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. N one 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 thir ty 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, b ut 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 back

dated votes.” 63 Even if this is true, the provision is c lear 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 some one 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 remem bered that all agree that the disputed ballots were received before the 8:00 p.m. deadline

on E lection D ay. 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

date s

— are allowable but envelope s where the voter simply

did not fill in a date are not . Surely

, the right to vote is “ made

of sterner stuff” than that. Ironically even the LCBE

— the main defendant in this

case

— at first agreed that the omissions were immaterial. 65

The nail in the coffin , as mentioned above, is that ballots were only to be set aside if the date was missing

— not incorrect. If the substance of the string of numbers does not matter, then it

is hard to understand how one could claim that this requirement has any use in determining a voter’s qualifications. As Voters persuasively argue, “[t]he fact that anything that looks like a date, including a date from decades past or future, is acceptable highlights why the handwritten

envelope date cannot be material to accurately assessing anything.” Moreover, the Deputy Secretary for Elections & Commissions explicitly stated that the date is not used “to

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

T his , without more, slams the door shut on any argume nt 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 a s the official date received in the SURE system, nor used for any other purpos e. 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, b ecause 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 p rivate

p laintiffs to enforce the Materiality Provision of the Civil Rights Act. T hat provision was created to ensure qualified

voters were not disenfranchised by meaningless requirements

that prevented eligible voters from casting their ballots but

had not hing to do with determining one’s qualifications to

vote. I gnoring ballots because the outer envelope was undated, even though the ballot was indisputably received before the deadline for voting serve s no purpose other than disenfranchising otherwise quali fied voters. This is exactly the type of disenfranchisement that Congress sought to
prevent. Accordingly

, we find the dating provision s in 25 P a

. C ons . S tat . § § 3146.6(a) and 3150.16(a) are immaterial under § 10101(a)(2)(B). There is no basis on this re cord 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 C ourt to enter an order that the

undate d 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 pro tected 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
precator y, 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) ( quo ting Gonzaga Univ. v. Doe , 536 U.S. 273, 28 7 (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 28 7

– 90)

.

2 At oral argument, Ritter conceded th at the Materiality

Provision contains rights

- creating language

, Oral Arg. at2 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 2 8 4 )

.

For another, the Appell ees offered no evidence, and little argument, th at the date requirement for voter declaration s 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, t hey agree that no party contests that

voter declarations with inaccurate dates we re counted in this

election

. 3 Add up both concessions, and the Appell ees have

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

But more ro om may exist in a future contest

, and just

because a statute is sometimes ignored does not mean the

55:28

– 55:49

, a nd the L ehigh C ounty B oard of E lections agreed

with all parts of Ritter’s argument

, Oral Arg. at 1:01:09

– 1:01:12

. And “a

ppellate 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 i s 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 g uidance was confirmed by m embers of the L ehigh

C ounty B oard of E lections 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 know n 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 differen t case and controversy, one where the materiality of the date on the voter declaration might make a difference

.

Those questions are for tomorrow. T oday, it is enough

to conclude

, as the majority does, that the Appell ee s have explained no material issues left for litigation. For that reason, I concur in the Judgment

.

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

electronic voter registration system , the SURE system, to be implemented by regulations from the Commonwealth’s Department of State)

.

5 I ndeed, 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)

.