Essay by Helen L. Brewer*
1 Fordham L. Voting Rts. & Democracy F. 277
The Civil Rights Act of 19641Pub. L. No. 88-352, 78 Stat. 241 (codified as amended at 42 U.S.C. §§ 2000a–h). For a complete overview of the Civil Rights Act of 1964 and its eleven titles, see Christine J. Back, Cong. Rsch. Serv., R46534, The Civil Rights Act of 1964: An Overview (2020). (“CRA”) outlawed discrimination in several fundamental aspects of everyday life. The United States Supreme Court has referred to the CRA’s eleven titles as a “comprehensive[] undertaking” designed to prevent and address discrimination in various contexts.2Heart of Atlanta Hotel, Inc. v. United States, 379 U.S. 241, 246 (1964). While many may be familiar with the CRA’s Title VII prohibitions on employment discrimination,3See 42 U.S.C. § 2000e-2 (addressing discrimination in the workplace based on “race, color, religion, sex, or national origin.”). for example, Title I’s voting provisions are likely less familiar. Distinct from the Voting Rights Act of 19654Pub. L. No. 89-100, 79 Stat. 437 (codified as amended in scattered sections of 52 U.S.C.). (“VRA”), Title I seeks to abolish discrimination at every stage of the voting process, from registering to vote to casting a ballot.5See 52 U.S.C. § 10101. Although originally codified through various subsections in 42 U.S.C. § 1971, Title I’s provisions are now codified at 52 U.S.C. § 10101, preceding the statutory provisions of the VRA. Sometimes seen as a “surprisingly underappreciated” provision of the CRA, Title I has received less national attention than some of its counterparts in recent memory.6Justin Levitt, Resolving Election Error: The Dynamic Assessment of Materiality, 54 Wm. & Mary L. Rev. 83, 88 (2012). Yet today, Title I is playing an increasingly prominent role in contemporary voting rights litigation.
This Essay analyzes how Title I of the CRA fits into contemporary voting rights litigation. Part I provides an overview of Title I, tracing its congressional legislative history and early jurisprudence. Part II then illustrates a resurgence in Title I litigation by examining case studies in Wisconsin and Arizona in the lead-up to and aftermath of the 2022 elections. Part III offers a more comprehensive analysis of Pennsylvania’s Title I litigation from the 2022 elections. Lastly, Part IV briefly concludes with a look ahead to future Title I litigation.
I. Title I: An Overview
Title I built on previous iterations of the CRA by adding voter protections designed to combat common forms of disenfranchisement, such as holding individuals to differing “standards” to determine whether an individual is “qualified” to vote;752 U.S.C. § 10101(a)(2)(A). restricting the use of “literacy” or interpretation tests;8Id. § 10101(a)(2)(C). and denying an individual’s right to vote based on immaterial “error[s] or omission[s]” on registration or other voting documents.9Id. § 10101(a)(2)(B). Section 10101(a)(2)(B) is commonly referred to as the “materiality” provision. See Back, supra note 1, at 7 (citing Schwier v. Cox, 340 F.3d 1284, 1297 (11th Cir. 2003) (referring to 42 U.S.C. § 1971(a)(2)(B), now codified at 52 U.S.C. § 10101(a)(2)(B), as “the materiality provision.”)).
When Congress designed Title I, it explicitly sought to prohibit registrars from rejecting voter registration applications because of minor, technical errors unrelated to a person’s qualifications to vote.10See Back, supra note 1, at 5–6. Qualifications to vote may include things like citizenship, age, and residency in the district in which one seeks to vote. See, e.g., Ariz. Rev. Stat. Ann. § 16-101 (2023); 25 Pa. Stat. and Cons. Stat. Ann. § 1301 (West 2002). To illustrate the need for these federal protections, congressional supporters of the CRA cited examples of registrars who regularly disqualified Black applicants because of “spelling errors or miscalculations of age,” but “conveniently overlooked” the same errors for white applicants.11110 Cong. Rec. 1593 (1964). Congress pointed to evidence of registrars rejecting Black registrants for miscalculating their age by one day, or, as one anecdote highlighted, turning away a Black applicant who, when asked to provide their age in years, months, and days, wrote “5 months and 30 days instead of 6 months and 0 days.”12110 Cong. Rec. 6715 (1964).
Congress was also concerned with reports of registrars treating different voters in disparate and discriminatory ways during the voting process.13See Back, supra note 1, at 5–6. Beyond holding Black registrants’ applications to impossibly high technical standards, registrars often went out of their way to help white applicants fill out their applications correctly.14See 110 Cong. Rec. 6716 (1964). Reports revealed that registrars helped white registrants answer application questions they did not know the answers to.15See id. Yet registrars offered no such help to Black applicants, instead rejecting them for minor errors, often not even informing them “why [they] failed or whether and when [they] may reapply.”16Id.
The CRA was used often and effectively in its early days to stamp out practices like these. Congress’s inspiration for the CRA of 1964 came largely from litigation under earlier iterations of the Act that enjoined these discriminatory practices.17See, e.g., United States v. McElveen, 180 F. Supp. 10 (E.D. La. 1960); United States v. Wilder, 222 F. Supp. 749 (W.D. La. 1963). Despite the statute’s frequent invocation in its early years, litigation based on the VRA ultimately gained prominence and came to overshadow Title I.18See Daniel Tokaji, Public Rights and Private Rights of Action: The Enforcement of Federal Election Laws, 44 Ind. L. Rev. 113, 139 (2001) (suggesting that Title I may “have assumed greater importance” had the VRA not been enacted the next year).
II. Case Studies: The 2022 Election Cycle
During the 2022 election cycle, courts in several states saw an uptick in Title I litigation. In Wisconsin, plaintiffs filed suit in state court invoking Title I, along with other state and federal laws.19League of Women Voters of Wis. v. Wis. Elections Comm’n, CV-002472 (Wis. Cir. Ct. 2022). In Arizona, several plaintiffs are arguing, in part, that newly enacted state laws violate Title I.20Mi Familia Vota v. Hobbs, CV 22-00509-PHX-SRB (D. Ariz. 2022). As of this writing, the Author’s employer, the Fair Elections Center, represents plaintiffs in the Mi Familia Vota and League of Women Voters of Wisconsin suits. Both are active litigations. And in perhaps the most thoroughly litigated Title I cases in recent months, several Pennsylvania lawsuits invoking the statute reached the state’s highest court,21Ball v. Chapman, 284 A.3d 1189 (Pa. 2022) (mem.). the Third Circuit,22Migliori v. Cohen, 36 F.4th 153 (3d Cir. 2022). and the U.S. Supreme Court.23Ritter v. Migliori, 143 S. Ct. 297 (2022) (granting certiorari and remanding to the Third Circuit with instructions to dismiss as moot). Each case presents courts with the opportunity to further develop Title I jurisprudence and clarify how Title I applies to the myriad of voting rights issues too many voters face across the country today.24See infra Parts II.A, II.B, III.
A. Wisconsin
In Wisconsin, plaintiffs contend that rejecting an absentee ballot because it lacks certain components of a witness’s address violates Section 10101(a)(2)(B) of Title I, known as the materiality provision.25Complaint at 22, League of Women Voters of Wis. v. Wis. Elections Comm’n, Wis. Cir. Ct. (Sept. 30, 2022) (CV-002472) [hereinafter LWVWI Complaint]. Under Wisconsin law, a voter’s absentee ballot must include a witness certificate containing the witness’s name and address.26See Wis. Stat. Ann. § 6.87(2) (West 2018). A ballot “may not be counted” if the witness’s address is “missing.”27Id. § 6.87(6d). Wisconsin law, however, does not define what constitutes a “missing” address nor a complete address. Previously, the Wisconsin Elections Commission (“WEC”) had issued guidance defining a complete address as a witness’s street number, street name, and municipality.28LWVWI Complaint, at 14. That guidance also allowed election clerks to use personal knowledge or other reliable information to fill in missing aspects of a witness’s address when they had such knowledge or information.29See id. at 14–15; Scott Bauer, Wisconsin Judge Refuses to Suspend Absentee Ballot Ruling, Associated Press (Sept. 13, 2022), https://apnews.com/article/2022-midterm-elections-wisconsin-voting-supreme-court-28666f5631db0f9540b45e3b7c221224 [https://perma.cc/8CVZ-GRND].
In September 2022, however, a Wisconsin court enjoined the WEC’s 2016 guidance, despite it being in effect for nearly six years.30Temporary Injunction, White v. Wis. Elections Comm’n, 22-CV-1008 (Wis. Cir. Ct. Sept. 7, 2022). The judge concluded that the guidance violated state law and blocked its use in the November 2022 midterm elections.31See id. Less than a week later, the WEC withdrew its guidance.32See Shawn Johnson, Following Judge’s Order, Wisconsin Elections Commission Withdraws Guidance Directing Clerks to Fix Absentee Ballot Witness Certificates, Wis. Pub. Radio (Sept. 13, 2022, 6:10 PM), https://www.wpr.org/following-judges-order-wisconsin-elections-commission-withdraws-guidance-directing-clerks-fix [https://perma.cc/84Y6-J2NE]. The WEC then informed the municipal clerks that it was retaining its three-component definition of an “address” (street number, street name, and municipality).33Temporary Injunction on WEC Guidance re Missing Absentee Witness Address (White v. Wisconsin Elections Commission, 22-CV-1008), Wisconsin Elections Commission (Sept. 14, 2022), https://elections.wi.gov/media/16801/download [https://perma.cc/8TKC-MMPD] (clarifying that, despite its guidance withdrawal, the court’s temporary injunction did not overturn the WEC’s existing definition of “address”). In the absence of the 2016 guidance, though, some Wisconsin absentee voters’ ballots face rejection if their witness omits a required component of their address—even if a clerk could clearly and reliably discern that information.34Plaintiffs also allege that some clerks have deemed the WEC’s definition of an “address” in a communication to be non-binding and have applied a different definition of “address,” including state name and zip code. LWVWI Complaint at 3–4. Whereas before the judicial order, a clerk could find and fill in a missing zip code for a witness who lists the same street address as the voter, for instance, such a ballot must now be rejected.
The Wisconsin plaintiffs argue that “[s]tate names and zip codes are immaterial to identifying the voter’s witness.”35LWVWI Complaint, at 3. Because the witness’s name and the voter’s contact information are listed on a ballot return envelope, the plaintiffs contend, clerks have enough information to contact the witness or the voter if necessary.36Memorandum of Law in Support of Plaintiff’s Motion for Emergency Declaratory Relief and Temporary Injunction at 14–15, League of Women Voters of Wis. v. Wis. Elections Comm’n (Wis. Cir. Ct. Oct. 4, 2022) (CV-002472). Accordingly, the plaintiffs argue that immaterial omissions like a witness’s zip code have no bearing on whether a voter is properly qualified to vote and thus, under the materiality provision, cannot be lawful reasons to reject an absentee ballot.37Id. at 15–20.
B. Arizona
In Arizona, several groups have brought different claims under Title I in federal district court.38In December 2022, a federal district court consolidated Mi Familia Vota v. Hobbs, CV 22-00509-PHX-SRB (D. Ariz. 2022), with eight other cases. The suits are in response to Arizona’s recently enacted laws regarding proof and investigation of citizenship status in the voter registration process.39See H.B. 2492, 55th Leg., Reg. Sess. (Ariz. 2022); H.B. 2243, 55th Leg., Reg. Sess. (Ariz. 2022). One such law requires voters to note their birthplace when registering to vote with a state form.40See Ariz. Rev. Stat. Ann. § 16-121.01 (2023). Challengers contend that requiring a voter to list their birthplace violates Title I’s materiality provision because a prospective voter’s birthplace is not material to their citizenship status nor their current residence and, thus, has no bearing on whether they are qualified to vote.41See, e.g., LUCHA Plaintiff’s First Amended Complaint at 65–66, Mi Familia Vota v. Hobbs (D. Ariz. July 18, 2022) (CV 22-00509-PHX-SRB).
Another provision of Arizona’s new laws would appear to subject some voters—but not all—to additional investigation into their citizenship status.42See, e.g., Ariz. Rev. Stat. Ann. § 16-165(I) (2023) (“[E]ach month the county recorder shall compare persons who are registered to vote in that county and who the county recorder has reason to believe are not United States citizens and persons who are registered to vote without satisfactory evidence of citizenship . . . to verify the citizenship status of the persons registered.”). While these laws were set to take effect at the start of 2023, they have not yet been enforced as of this writing.43An agreement between some plaintiffs and the former secretary of state temporarily blocked H.B. 2243’s use in the 2022 election cycle. As of this writing, however, both H.B. 2243 and H.B. 2492 are in effect. Nonetheless, it is unclear how the current secretary of state will enforce both laws. See Majority of Arizona Counties Will Not Enforce New Voter Purge Law, Democracy Docket (Jan. 25, 2023), https://www.democracydocket.com/news-alerts/majority-of-arizona-counties-will-not-enforce-new-voter-purge-laws [https://perma.cc/M6UZ-C86S]. The statutes, however, do not provide election officials with specific processes to follow when conducting citizenship investigations.44Given this uncertainty, by January 2023, most of Arizona’s county recorders submitted written assurances in court stating that they have not yet implemented the statutory changes and “will not implement any voter purges” pursuant to H.B. 2492 and H.B. 2243 “until further instruction is received from the Secretary of State or clear legal direction is available, or upon further” court order. See id. (citing Graham County Recorder’s Amended Notice of Written Assurance, Mi Familia Vota v. Hobbs (D. Ariz. Jan. 19, 2023) (CV 22-00509-PHX-SRB)). The plaintiffs allege that the citizenship investigation provision therefore violates Title I because it requires county recorders—acting on the statute’s undefined “reason to believe”45Ariz. Rev. Stat. Ann. § 16-165(I) (2023). that some voters are not citizens—to divide voters into those they suspect may not be citizens and those they do not so suspect, and subject only the former group to citizenship investigations.46See, e.g., Second Amended Complaint for Poder Latinx, Chicanos por la Causa, and Chicanos por la Causa Action Fund at 48–49, Mi Familia Vota v. Hobbs (D. Ariz. Nov. 15, 2022) (CV 22-00509-PHX-SRB).
III. A Deeper Look: Pennsylvania’s 2022 Elections
Pennsylvania has seen perhaps the most extensive Title I litigation in both federal and state courts. The Supreme Court of Pennsylvania,47Ball v. Chapman, 284 A.3d 1189 (Pa. 2022) (mem.). the Third Circuit,48Migliori v. Cohen, 36 F.4th 153 (3d Cir. 2022). and the U.S. Supreme Court all considered challenges brought under the materiality provision in the 2022 election cycle, putting Title I center stage in the state.49Ritter v. Migliori, 143 S. Ct. 297 (2022) (granting certiorari and remanding to the Third Circuit with instructions to dismiss as moot).
In Migliori v. Cohen,5036 F.4th 153 (3d Cir. 2022). for example, the Third Circuit determined that rejecting absentee ballots for failing to include a date next to a voter’s signature on the return envelope violated Title I’s materiality provision.51See id. at 164. The court agreed with the plaintiffs’ contention that the date is immaterial to a person’s eligibility to vote.52See id. The U.S. Supreme Court, however, vacated this holding, remanding the case to the Third Circuit with instructions to moot it because the primary election it concerned was already over.53Ritter, 143 S. Ct. at 297–98 (granting certiorari and remanding to the Third Circuit with instructions to dismiss as moot).
Although the U.S. Supreme Court did not publish its reasoning behind its decision to vacate the Third Circuit’s order, Justice Alito published a dissent from an earlier denial of a stay in the case in June 2022.54Ritter v. Migliori, 142 S. Ct. 1824 (2022) (Alito, J., dissenting from the denial of the application for stay) [hereinafter Migliori Application for Stay]. Joined by Justices Thomas and Gorsuch, Justice Alito would have stayed the Third Circuit’s order allowing undated and incorrectly dated ballots to be counted.55See id. This dissent offers a window into at least three current Justices’ likely approach to the materiality provision of the CRA, furnishing some of the Court’s only substantive analysis on the materiality provision in recent years. It is not unheard of for Supreme Court Justices to signal a receptiveness to and lay out roadmaps for civil rights challenges in nonbinding opinions like these.56See Carolyn Shapiro, The Limits of Procedure: Litigating Voting Rights in the Face of a Hostile Supreme Court, 83 Ohio St. L. J. Online 111, 116 (2022). Professor Shapiro points out that nonbinding opinions like concurrences and dissents, as well as the shadow docket, which is where Justice Alito’s Migliori dissent appears, have been used by the Court in recent years to “make or signal changes in the law.” Id. at 121. Justice Alito’s Migliori dissent could serve such a purpose. Therefore, it is timely to analyze both its apparent misinterpretation of the materiality provision and how the provision would function under a proper reading.
The issue at the heart of Justice Alito’s dissent is whether the materiality provision extends to errors on absentee ballot return envelopes. First, Justice Alito would hold that a voter’s failure to correctly fill out a ballot return envelope, and the resulting ballot rejection, is the voter’s “forfeiture” of their right to vote.57Migliori Application for Stay, supra note 54, at 1825 (Alito, J., dissenting). Because the CRA is triggered when a person acting under color of law denies a voter their right to vote, Justice Alito would hold that Title I does not apply to the facts of Migliori, where a voter’s own error caused their vote to be rejected.58See id.
Justice Alito’s second argument maintains that rules governing whether a ballot will be counted, including directions for filling out ballot return envelopes, are distinct from rules about qualifications to vote. He would hold that Title I’s materiality provision applies only to the latter.59See id. Justice Alito’s explanation of this distinction is difficult to parse and sometimes appears circular. He seems to reason that the materiality provision is only triggered by a rule or procedure related to determining whether a person is qualified to vote.60See id. at 1825–26. For example, rules dictating whether a ballot return envelope has been filled out properly and can be counted, he argues, are unrelated to determining whether a person is qualified to vote.61See id. Thus, according to Justice Alito, the materiality provision is not triggered by, nor does it apply to, a ballot rejected for an incorrect or missing date on a return envelope.62See id.
As the November 2022 elections drew closer, the Pennsylvania Supreme Court heard a petition arguing that the materiality provision prohibits the rejection of ballots with missing or incorrect dates on the return envelope. In Ball v. Chapman,63289 A.3d 1 (Pa. 2022). the state supreme court deadlocked and issued no ruling on whether this practice violates the CRA.64See id. at 28. The Pennsylvania Supreme Court currently has only six justices, as former Justice Baer recently passed away. The resulting vacancy is set to be filled in 2023. See J.D. Prose, Candidates Announce Bids to Fill Pa. Supreme Court Vacancy in 2023, Penn Live Patriot-News (Nov. 29, 2022, 5:29 PM) https://www.pennlive.com/news/2022/11/candidates-announce-bids-to-fill-pa-supreme-court-vacancy-in-2023.html [https://perma.cc/3JXE-L9WH]. The three justices who would have found that rejecting such ballots violates the materiality provision did, however, “offer[] a rationale that aligns with the Third Circuit’s interpretation” in Migliori,65Ball, 289 A.3d at 28. providing an alternative to Justice Alito’s reading of the materiality provision.
These three Pennsylvania justices argued that the materiality provision applies to errors and omissions, including a voter’s error on a ballot return envelope.66See id. at 24–25. They reasoned that a narrower reading like Justice Alito’s would render the materiality provision useless, preventing it from ever being triggered.67See id. at 25. Indeed, such a reading would seemingly decimate Title I’s ability to do what Congress made so clear it was intended to do: prevent state officials from denying would-be voters the opportunity to cast a ballot because of minor technical errors.68See supra text accompanying notes 10–12.
The Pennsylvania justices also offered an alternative to Justice Alito’s understanding of the types of voting rules to which the materiality provision applies. The justices noted that the materiality provision’s language, stating it applies to “other act[s] requisite to voting,” means, as Justice Alito also maintains,69See Migliori Application for Stay, supra note 54, at 1825 (Alito, J., dissenting). it must not encompass every single step of voting—if that were the case, the language would be meaningless.70Ball, 289 A.3d at 26–27 (“By using the word ‘other,’ Congress made clear that, though registering to vote and applying for an absentee ballot unquestionably are acts requisite to voting, the statute sweeps more broadly than that; an ‘other act requisite to voting’ must be something else.” (citing 52 U.S.C. § 10101(a)(2)(B) (emphasis added))). The Pennsylvania justices argued that rules for marking a ballot and delivering it to election authorities for counting, for example, have a closer nexus to the actual act of voting and are thus not acts requisite to voting covered by the materiality provision.71See id. at 26. Still, they would hold that filling out an absentee ballot return envelope is distinct from these acts of voting.72See id. They would also find it distinct from registering to vote or applying for an absentee ballot, concluding it must be an “other act requisite to voting” under the statute’s purview.73Id.
In its amicus brief filed in Migliori in the Third Circuit, the United States Department of Justice (“DOJ”) also argued that the scope of the materiality provision extends to absentee ballot envelope certificates.74See Brief for the United States as Amicus Curiae at 7, Migliori v. Lehigh Cnty. Bd. of Elections (U.S. Supreme Court Apr. 1, 2022) (No. 22-1499) [hereinafter United States Amici]. Like the three Pennsylvania justices, the DOJ cited the materiality provision’s broad language, covering “any ‘other act requisite to voting.’”75Id. at 7, 22 (citing 52 U.S.C. § 10101(a)(2)(B)). The DOJ also pointed to Title I’s broad definition of “vote,” noting that it includes “all action[s] . . . prerequisite to voting, casting a ballot, and having such ballot counted.”76Id. at 3 (citing 52 U.S.C. § 10101(e) (internal quotation omitted)).
The DOJ and the Pennsylvania justices take a different approach from Justice Alito in his Migliori dissent. Justice Alito maintains that the CRA does not extend to the facts of Migliori (and, by extension, the nearly identical set of facts at issue in Ball) because whether a voter dates their ballot return envelope is an issue related to the rules for counting a ballot.77See Migliori Application for Stay, supra note 54, at 1825–26 (Alito, J., dissenting). According to Justice Alito, rules related to having one’s vote counted do not fall under the materiality provision’s purview—rather, only rules related to determining whether someone is qualified to vote trigger the statute’s protections.78See id. at 1825.
Taken to its extreme, Justice Alito’s reasoning would seemingly prevent the materiality provision from reaching the very practices Congress designed Title I to prohibit. For example, congressional supporters of Title I’s passage cited a report of a registrar rejecting a registration application because the applicant underlined the prefix “Mr.” on a form when the instructions said to circle it.79110 Cong. Rec. 1693–94 (1964). Justice Alito’s reading of the materiality provision would seemingly immunize this rejection from the provision’s protections. The registrar could simply argue that they rejected the registration form because of the voter’s failure to follow the instructions for filling out the form, not because of any error related to the voter’s qualifications to vote.
Though not focused on identical issues, the DOJ’s discussion of Title I in its Migliori amicus brief further reveals the problems with reading a bifurcation between ballot counting rules and voter eligibility rules into the materiality provision. As the DOJ notes, not only does the materiality provision by its terms apply to “any record or paper relating to any application, registration, or other act requisite to voting,”80United States Amici, supra note 74, at 25 (citing 52 U.S.C. § 10101(a)(2)(B)) (emphasis added). but Title I defines “vote” to include “all action necessary to make a vote effective,” including “action[s] required by State law prerequisite to . . . casting a ballot, and having such ballot counted.”81Id. at 26–27 (citing 52 U.S.C. § 10101(e)). In other words, the materiality provision encompasses acts a voter must take to ensure their ballot is counted. Justice Alito argues that filling out absentee ballot return envelopes is a prerequisite to having one’s ballot counted.82See Migliori Application for Stay, supra note 54, at 1825–26 (Alito, J., dissenting). Even under his reading, then, the materiality provision should reach absentee ballot envelopes.
While Justice Alito suggests that the materiality provision only applies to rules related to determining a voter’s qualifications, it is unclear exactly what rules he envisions falling into this category. Nor is it clear how a rule or error that is by definition related to qualifications to vote could ever be found to violate the materiality provision, which explicitly permits the rejection of ballots for errors pertaining to voter qualifications. Simply put, Justice Alito’s approach to the materiality provision raises concerns about the provision’s effectiveness and practical application. His interpretation would render the materiality provision meaningless, as it would only be triggered by errors that would always be permissible bases for rejection under its terms.
Election law scholar Justin Levitt has previously rebutted another possible reading of the materiality provision that presents similar pitfalls.83See Levitt, supra note 6, at 147 n.208. Levitt highlights the potential for debate over the meaning of “qualified to vote under State law.”84Id. He notes that this language could be read to refer to substantive qualifications such as age, citizenship, and residency—or to procedural qualifications based on whether a voter followed all state-imposed procedural voting rules.85See id. This second reading would mean that every error at any step of the voting process, from an error on a registration form to (likely) an error on a ballot return envelope, would per se be material to a voter’s qualifications under state law.86See id.
As Levitt explains, if all procedural steps involved in casting a vote and having it counted are material to a voter’s (procedural) qualifications, then every error that could trigger the materiality provision would constitute a permissible reason to deny a voter of their opportunity to cast a vote.87See id. Unlike Justice Alito’s reading, this understanding of the statute would trigger the materiality provision more often. Like Justice Alito’s approach, however, it would render the materiality provision meaningless because no error that triggers it would ever be found to violate it.88See id. Professor Levitt ultimately argues that such an interpretation of the materiality provision must be rejected.89See id.
An approach more like that of the three Pennsylvania justices in Ball, focusing on whether an error has occurred on a paper related to an act requisite to voting, might argue that framing the CRA in the narrow, circular manner Justice Alito suggests would not only gut the materiality provision’s protections, but also render them nearly impossible to trigger. A Statement of Interest filed by the DOJ in League of Women Voters of Wisconsin v. Wisconsin Elections Commission90No. 2022-CV-002472 (Wis. Cir. Ct. Oct. 4, 2022). provides a roadmap to an application of the materiality provision that carries out the statute’s text and allows it to reach and prevent the problems Congress designed it to address.91See generally Statement of Interest of the United States, League of Women Voters of Wis. v. Wis. Elections Comm’n (Wis. Cir. Ct. Oct. 14, 2022) (CV-002472). This approach would begin by determining whether the error that caused the voting paper at issue to be rejected is related to a voter’s qualifications.92See id. at 7–8. If so, the rejection at issue would not violate the materiality provision.93See id. at 7–9. If not, however, the error would not constitute a lawful basis to reject a ballot.94See id. Alternatively, an approach like Justice Alito’s would begin by asking whether the rule with which the prospective voter failed to comply, causing their vote to be rejected, is itself material to determining the voter’s eligibility. This would end any analysis of whether an error on a form like a ballot envelope was material to the voter’s eligibility before it could begin.
An approach akin to that offered by the three Pennsylvania justices or the DOJ would not limit the materiality provision to errors related to rules for determining voter eligibility, but would instead apply the provision to errors on papers requisite to voting, including those that relate to having a ballot counted. This type of understanding of how the materiality provision should function allows it to reach the scenarios it was intended to cover and better aligns with Title I’s text.
IV. Looking Ahead: Title I’S Future in Election Litigation
While the CRA has been on the books for almost sixty years, the VRA has often taken center stage in voting rights litigation. Today, though, the CRA is playing a prominent role in several cases like the examples discussed above. Legal doctrine interpreting Title I is likely to develop and change as these cases progress and as more challenges are filed. As Migliori and Ball in Pennsylvania demonstrate, litigation over the scope and applicability of the materiality provision is likely to intensify in the near future. The contours of barriers to voting rights have changed drastically in the decades since the CRA passed, and the time for courts to likewise adapt the CRA to today’s voting landscape looks to be at hand.
* Legal Fellow, Fair Elections Center; J.D. 2021, William & Mary Law School. I would like to thank the Fair Elections Center team for providing the opportunity to explore Civil Rights Act litigation, and Jon Sherman, in particular, for his guidance in my work and in reviewing drafts of this Essay. I would also like to extend my deepest gratitude to the Fordham Law Voting Rights and Democracy Forum, including all the student and administrative editors and staff who worked on this piece, for their patience, insight, and hard work.
