Election protection volunteers in Philadelphia on Election Day 2020 (credit: Hannah Beier)

Historical comparisons are always imperfect. No two situations are exactly alike. And so it is this Black History Month, as I reflect on everything our ancestors went through in this country. Colonial and state governments built their economies on their unpaid labor. Domestic terrorists assaulted and murdered them during the Jim Crow era. Police and unruly mobs, using violence as a tactic, faced off with them when they struggled to assert their rights during the Civil Rights Movement. And all of this happened while they were effectively shut out of large parts of America’s public life.

Still, there are some throughlines that are as true today as they were 50, 100, and 150 years ago. After the end of the Civil War and the abolition of slavery, access to the ballot was one of the key components of Black Americans’ struggle for equality. 

And for a time, some of us - men, to be exact - had it. During the Reconstruction period, Black candidates were elected throughout the South to state houses and Congress. But when white leaders in Washington abandoned the South in a deal to end a controversial presidential election, the Jim Crow era began, and Black voters were disenfranchised, often violently, by white local and state officials, who created barriers to voting, with a militia arm - the Ku Klux Klan - acting as enforcers. The Wilmington Massacre of 1898, in my hometown in North Carolina, is but one example; historians acknowledge it as the only successful coup in American history.

We live in different circumstances in 2022. But access to the ballot is still our north star. And we are still struggling against powerful, privileged people who are trying to create barriers to the vote. No one is being murdered for registering voters or for going to the polls. Now, those who would suppress the vote are using the levers of power to make it more difficult to access the ballot. The actors and tactics change. But the fight remains the same.

At the ACLU of Pennsylvania, we are dedicated to protecting and expanding voting rights and defending democracy. And it’s a fight that we will be waging into the foreseeable future.

As you read this, we are awaiting a decision from a federal court in Allentown on our lawsuit arguing that 257 ballots in Lehigh County from the 2021 general election should be counted. You may be thinking, ‘Didn’t the 2021 election end months ago?’ It did. But this fight is on because 257 voters forgot to write the date on the return envelope in which they submitted their mail or absentee ballots. That technicality is irrelevant to the voters’ eligibility, as they all returned their ballots in time to be counted, and our opponents admit that these are otherwise valid ballots. Disqualifying their ballots is illegal under both the Civil Rights Act of 1964 and the U.S. Constitution.

On its face, the argument over counting these ballots is race-neutral. Anyone of any race from anywhere could mistakenly forget to date their return envelope. And we do not know the racial breakdown of the 257 voters. We do know, though, that a high percentage of the voters are older adults and are from Allentown, the county’s largest municipality and Pennsylvania’s third-largest city. Allentown has a Latinx population of 52 percent and a Black population of 14 percent. Simple math suggests that, if these ballots are disqualified, Black and brown voters likely will be disenfranchised, along with numerous white voters.

A reasonable person could agree that not dating the return envelope is a foolish reason to disenfranchise a voter. In fact, the Lehigh County Board of Elections initially intended to count these ballots. But a judicial candidate who is locked in a close race challenged that decision, claiming that state law requires that a ballot be disqualified if the return envelope is not dated. The Commonwealth Court agreed with the candidate, and the state Supreme Court declined to hear the case.

ACLU-PA was not a party to the state case, but we are now representing five voters and arguing in federal court that the 257 ballots that were submitted with undated envelopes should be counted. The Civil Rights Act of 1964 prohibits disqualifying ballots based on anything “not material in determining whether such individual is qualified under State law to vote(.)” Under the state constitution, a person is an eligible voter if they are a citizen, a resident of Pennsylvania, and a resident of the district in which they are registering to vote. Clearly, whether or not a person dated their return envelope is “not material” to a person’s qualifications to vote.

The Civil Rights Act was the culmination of decades of struggle by Black Americans. And there, again, is that throughline from our past to our present. One candidate in Lehigh County wants 257 voters to be disenfranchised and is basing his argument on an irrelevant, unnecessary barrier to voting.

Today, we have to dismantle barriers in law created by powerful elected officials. Historically, we had to get around poll taxes and literacy tests and threats of violence. My first boss out of law school, Henry E. Frye, was inspired to become a lawyer after being denied the right to vote when, in 1956 at age 24, he was subjected to a literacy test. He went on to become the first Black person elected to the North Carolina Legislature in the 20th century, and the first Black chief justice of the N.C. Supreme Court

This may sound like a small fight in one county in a low-turnout election. But these 257 voters have the right to have their ballots counted. And it does not take much imagination to foresee a scenario in which thousands of voters are disenfranchised in the same way across the state in a high-turnout election. Those 257 ballots represent about one percent of the county’s mail-in ballots in last year’s election. For comparison, that would equate to approximately 27,000 voters statewide in the 2020 general election.

We are in a pitched battle to defend democracy in the United States. And the ACLU of Pennsylvania is here for it. Our mantra is access to the ballot for all eligible voters, no matter who they are, where they live, or who they vote for. Democracy demands nothing less.