AMERICAN CIVIL LIBERTIES UNION FOUNDATION

1 AMERICAN CIVIL LIBERTIES UNION FOUNDATION June 2, 2022 Robert Meek Emergency Applications Attorney Supreme Court of the United States One First Street, Washington, 20543 cc: The Honorable Scott Harris, Clerk of the Court Re: Ritter v. Migliori, et al., No. 21A772 Dear Mr. Meek and Mr. Harris: On Thursday, June 2, 2022, the Pennsylvania Commonwealth Court issued a Memorandum Opinion and Order granting the requested preliminary relief in Dave McCormick for Senate v. Chapman, No. 286 MD 2022 (Pa. Commw. Ct.), a case that is referred to in the pending stay application of Candidate-Intervenor Ritter, as well as the amicus brief in support thereof filed by Dr. Mehmet Oz and his political campaign. The Commonwealth Court s opinion concludes that timely-received mail ballots voted by registered and qualified voters must be counted even if the signed Return Envelope is missing a date, at least where there is no question that ballots in Return Envelopes with wrong dates were considered acceptable.

2 Mem. Op. & Order at 21-37. The Commonwealth Court reached that conclusion both under the Materiality Provision of the CIVIL Rights Act, 52 10101(a)(2)(B), id. at 22-31, and independently as a matter of state law, id. at 31-34. The Commonwealth Court s decision underscores that there is no conflict between the federal and state courts, and no conflict between the requirements of federal law and state law, and thus further supports the denial of applicant Ritter s pending stay application. A copy of the Commonwealth Court s opinion is appended. We would appreciate your circulating this letter , including the appended opinion, to Justice Alito or, if appropriate, to the Members of the Court. AMERICAN CIVIL LIBERTIES FOUNDATION Voting Rights Project National Office 125 Broad Street, 18th Floor New York, NY 10004-2400 (212) submitted, Ari J. Savitzky Counsel of Record for Respondents Linda Migliori, et al. cc : See attached service list SERVICE LIST: Ritter v.

3 Migliori, et al., No. 21A772 Cameron T. Norris Consovoy McCarthy PLLC 1600 Wilson Boulevard. Suite 700 Arlington, VA 22208 Lucas J. Repka Assistant Solicitor to Lehigh County Lehigh County Government Center 17 South Seventh Street Allentown, PA 18101 Adam C. BoninThe Law Office of Adam C. Bonin121 S. Broad Street, Suite 400 Philadelphia, PA THE COMMONWEALTH COURT OF PENNSYLVANIA Dave McCormick for Senate, and : David H. McCormick, : Petitioners : : v. : No. 286 2022 : Heard: May 31, 2022 Leigh M. Chapman, in her official : capacity as Secretary of State for the : Commonwealth, Adams County Board : of Elections, Allegheny 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 : 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.

4 Elections, Fayette County Board of : Elections, Forest County Board of : Elections, Franklin County Board of : Elections, Fulton 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 : 2 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 Elections, Montour County Board of : Elections, Northampton County Board : of Elections, Northumberland County : Board of Elections, Perry County : Board of Elections, Pike County Board : of Elections, Potter County Board of : Elections, Snyder County Board of : Elections, Somerset County Board of : Elections, Sullivan 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, and Wyoming County : Board of Elections, : Respondents : BEFORE: HONORABLE REN E COHN JUBELIRER, President Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE COHN JUBELIRER FILED: June 2, 2022 3 On May 23, 2022, Dave McCormick for Senate and David H.

5 McCormick (together, Petitioners) filed a Petition for Review in the Nature of a Complaint in Equity (Petition) in this Court s original jurisdiction against named Respondents Leigh M. Chapman, in her official capacity as Acting Secretary of the Commonwealth (Acting Secretary), and 60 county boards of elections1 (County Boards). In their Petition, Petitioners allege that the above-listed County Boards refuse to count absentee and mail-in ballots for the Republican Nomination for the Office of United States Senator in the May 17, 2022 General Primary election ,2 where the voters failed to handwrite a date on the exterior mailing envelope but the ballots were otherwise timely received based upon the date stamped by the County Boards upon receipt and complied with all applicable requirements. On May 24, 2022, Petitioners filed a Motion for Immediate Special Injunction and Supporting Memorandum of Law, which this Court treats as a motion for a preliminary 1 Petitioners did not name the remaining seven county boards of elections based on their belief that those boards are already providing the relief sought by Petitioners in this matter.

6 To the extent that it is asserted that these seven counties are indispensable parties and that their absence precludes this Court from acting, the Court is unconvinced at this time that the failure to name parties who are not engaging in the alleged unlawful behavior is a barrier to the Court considering this action. 2 Because the unofficial returns submitted to the Department of State by the 67 county boards of elections pursuant to Section 1404(f) of the Pennsylvania election Code ( election Code), Act of June 3, 1937, 1333, as amended, 25 3154(f), for the May 17, 2022 General Primary election indicated that a candidate in the Republican Primary for the Office of United States Senator was defeated by one-half of a percent or less of the votes cast for that office, and the defeated candidate did not request in writing that a recount not be made under Section 1404(h) of the election Code, 25 3154(h), on May 26, 2022, the Acting Secretary ordered a statewide recount of the entire vote cast in the Republican Primary for the Office of United States Senator pursuant to Section 1404(g)(1) of the election Code, 25 3154(g)(1).

7 See Order of Recount for the Republican Primary for United States Senator, dated May 26, 2022. The recount was ordered to be completed by the county boards no later than noon on Tuesday, June 7, 2022, and the results of the recount submitted no later than noon on Wednesday, June 8, 2022. Id. 4 injunction (Motion for Special Injunction). For the following reasons, the Court grants the Motion for Special Injunction. Background & Procedural History Sections 1306(a) and 1306-D(a) of the Pennsylvania election Code3 provide, respectively, that, after an elector marks their ballot and secures it in the secrecy envelope, the elector is to place that envelope into a second envelope (outer or exterior envelope) on which, among other things, is printed a declaration of the elector which [t]he elector shall then fill out, date and sign (dating provisions). 25 (a) (absentee), (a) (mail-in).

8 Whether ballots can be counted that do not contain a handwritten date on the outer envelope as described in these sections is the issue. In Count I of the Petition, Petitioners allege that the County Boards refusal to count timely received ballots lacking a handwritten date on the exterior envelope violates Section 10101(a)(2)(B) of the CIVIL Rights Act, 52 10101(a)(2)(B),4 (commonly referred to as the materiality provision ), 3 See Section 1306(a) of the election Code, added by the Act of March 6, 1951, 3, 25 (a) (relating to voting by absentee electors); see also Section 1306-D(a) of the election Code, added by the Act of October 31, 2019, 552, No. 77 (Act 77), 25 (a) (relating to voting by mail-in electors). To complete an absentee or mail-in ballot, an elector is required to fill out, date and sign the declaration printed on [the second, outer] envelope and either send the envelope by mail, postage prepaid, or deliver it in person to the elector s respective county board of elections no later than 8:00 on the day of the primary election .

9 Sections 1306(a), (c), and 1306-D(a), (c) of the election Code, 25 (a), (c), (a), (c). 4 Section 10101(a)(2)(B) of the Voting Rights Act provides, as follows: (a) Race, color, or previous condition not to affect right to vote; uniform standards for voting qualifications; errors or omissions from papers; literacy tests; agreements between Attorney General and State or local authorities; definitions .. (Footnote continued on next ) 5 because the dating provisions under the election Code are immaterial to whether a voter is qualified to vote under state law. (Petition for Review (Pet. for Rev.) 18-20.) In Count II, Petitioners further allege that the County Boards refusal to count ballots lacking a handwritten date on the exterior envelope, which is a mere technical requirement, disenfranchises both absentee and mail-in voters and thus violates the Free and Equal Elections Clause under article I, section 5 of the Pennsylvania Constitution, PA.

10 CONST. art. I, (Pet. for Rev. 21-23.) As relief, Petitioners seek a judicial declaration that timely returned absentee and mail-in ballots may not be rejected due solely to the lack of a date in the declaration on the exterior envelope ; and an order directing the County Boards to canvass any timely returned absentee or mail-in ballot that lacks a date on its exterior envelope and no other deficiencies or irregularities[,] to report to the [] Department of State [(Department)] the unofficial results of the canvass .. of any timely returned absentee or mail-in ballot that lacks a date on its exterior envelope absent any other irregularities ; and an order enjoining County Boards to take all other steps necessary to effectuate this Court s declaration[.] (Pet. for Rev., Prayer for Relief 1-4.) (2) No person acting under color of law shall-- .. (B) 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 [.]