ACLU Urges Federal Appeals Court to Order Disqualified Lehigh County Ballots to be Counted

PHILADELPHIA - In a case that could impact thousands of Pennsylvania voters in future elections, the American Civil Liberties Union today urged a federal appeals court to order Lehigh County elections officials to count 257 previously disqualified mail and absentee ballots from the 2021 general election. The voters who submitted these ballots were all eligible voters who submitted their mail and absentee ballots on time to be counted but mistakenly forgot to handwrite a date on the return envelope.

The lawsuit against the county was brought by a bipartisan group of five voters, who are represented by the ACLU of Pennsylvania and the ACLU Voting Rights Project. The voters argue that a provision of the federal Civil Rights Act known as the “materiality clause” prohibits disenfranchising 257 voters because dating the return envelope is irrelevant to their eligibility as voters or their timeliness in returning their ballots.

“Voting is a fundamental right and should not be restricted by unnecessary hurdles,” said Reggie Shuford, executive director of the ACLU of Pennsylvania. “But that’s exactly what is happening here. Handwriting a date on the return envelope in this context is utterly meaningless. Everyone involved in this case agrees that these 257 voters are eligible and returned their ballots on time. So count their votes.”

The outcome of one judicial race in Lehigh County could be impacted by the decision, as 74 votes separate the two candidates.

The plaintiffs’ argument before the United States Court of Appeals for the Third Circuit in Philadelphia was presented today by Ari Savitzky of the ACLU Voting Rights Project. In March, a federal district court in Allentown ruled in favor of disqualifying the ballots, a decision that the voters then appealed.

The U.S. Department of Justice has filed a friend-of-the-court brief in the case, in favor of the voters, as has the Pennsylvania attorney general.

“Over 150 years of law allow people to challenge government violations of their rights in federal court,” said Witold Walczak, legal director of the ACLU of Pennsylvania, responding to the district court’s suggestion that only the federal government can enforce the Civil Rights Act. “The courts are, and must be, available to everyone to enforce the promise of the Constitution and federal civil rights laws, including protections for the foundational right to vote.”

The voters are represented by Stephen Loney, Marian Schneider, Richard Ting, Connor Hayes and Witold Walczak of the ACLU of Pennsylvania and Ari J. Savitzky, Adriel I. Cepeda Derieux, and Sophia Lin Lakin of the ACLU Voting Rights Project. More information about the case is available at aclupa.org/LehighBallots.