Third Circuit Declines En Banc Review, Leaving Intact Anderson–Burdick Invalidation of Pennsylvania’s Mail‑In Ballot Date Requirement Despite New State Notice‑and‑Cure Mandate

Introduction

This commentary examines the Third Circuit’s sur petition order denying rehearing (both panel and en banc) in Eakin v. Adams County Board of Elections, a high‑stakes election‑law dispute over Pennsylvania’s longstanding requirement that mail‑in voters date the declaration on the exterior return envelope. The underlying panel decision, issued August 26, 2025, declared the date requirement unconstitutional under the Anderson–Burdick balancing framework, concluding that the burden imposed on voters outweighed the Commonwealth’s asserted interests in election solemnity, orderly administration, and fraud prevention.

The rehearing denial is particularly consequential because, after the panel decision, the Pennsylvania Supreme Court decided Center for Coalfield Justice v. Washington County Board of Elections (Sept. 26, 2025), holding that the Pennsylvania Constitution requires notice to mail‑in voters when their ballots are rejected and an opportunity to cure by voting provisionally. Six judges of the Third Circuit—Judges Hardiman, Bibas, Porter, Matey, Phipps, and Bove—would have granted rehearing en banc. Two detailed dissents (by Judges Phipps and Bove) argue that the panel’s constitutional ruling is both doctrinally flawed and practically out of step with the changed state‑law landscape.

Parties span a broad cross‑section of Pennsylvania’s election infrastructure and national political actors. Plaintiffs include individual voter Bette Eakin, the DSCC, the DCCC, and AFT Pennsylvania. Defendants are numerous county boards of elections across the Commonwealth. Intervenor‑appellants include the Commonwealth of Pennsylvania and national and state Republican Party entities.

Summary of the Opinion

Factual and Procedural Background

• For decades, Pennsylvania required mail voters to “fill out, date, and sign” the declaration on the return envelope. Act 77 (2019) established universal mail‑in voting and retained the date requirement. See 25 P.S. §§ 3146.6(a), 3150.16(a).
• Post‑2020 litigation tested multiple aspects of Pennsylvania’s mail‑in regime, including the date requirement. A prior Civil Rights Act challenge briefly succeeded (Migliori v. Cohen), but the Supreme Court vacated; a later Third Circuit panel rejected a renewed CRA challenge (NAACP v. Schmidt, 2024).
• On August 26, 2025, the Eakin panel held the date requirement unconstitutional under Anderson–Burdick, emphasizing ballot rejections and the lack of voter notice and cure options under state law as then understood via Pa. Democratic Party v. Boockvar (Pa. 2020).
• On September 26, 2025, the Pennsylvania Supreme Court decided Center for Coalfield Justice v. Washington County Board of Elections, holding that the Pennsylvania Constitution’s Inherent Rights Clause requires notice of rejection and an opportunity to cure via provisional balloting.
• The Commonwealth and Republican intervenors sought rehearing in light of Coalfield Justice; on October 14, 2025, the Third Circuit denied rehearing. Judges Phipps and Bove filed dissents; six judges would have reheard the case en banc.

Analysis

Precedents Cited and Their Role

1) Anderson–Burdick and its reach

• Anderson v. Celebrezze (1983) and Burdick v. Takushi (1992) supply a sliding‑scale balancing test: courts weigh the burden on constitutional interests against the state’s regulatory justifications. The Eakin panel applied this framework to the date requirement.
• The dissents caution that Anderson–Burdick is “standardless” and risks judicial second‑guessing of core legislative policy. Judge Bove quotes Sixth Circuit critiques (Daunt v. Benson concurrences) and notes that some circuits limit Anderson–Burdick to specific contexts (ballot access, party association, and voting‑rights claims), citing Lichtenstein v. Hargett (6th Cir. 2023).
• Third Circuit precedent (Mazo v. N.J. Sec’y of State, 2022) recognizes a de minimis exception: if the burden is no more than trifling, Anderson–Burdick does not apply. The dissents argue the panel misapplied or marginalized this threshold gateway.

2) McDonald’s rational‑basis track for absentee rules

• McDonald v. Board of Election Commissioners (1969) applied rational‑basis review to absentee‑ballot rules, distinguishing the fundamental right to vote from a claimed right to vote by mail.
• Several circuits (Fifth, Sixth, Seventh) treat absentee‑only claims as subject to rational‑basis review where in‑person voting remains available. Judge Bove lists Tex. Democratic Party v. Abbott, Tully v. Okeson, and Common Cause Indiana v. Lawson.
• The Eakin panel aligned with decisions from the Second, Eighth, Ninth, and Eleventh Circuits that extend Anderson–Burdick to some vote‑by‑mail regulations; the dissents argue this deepens a circuit split and sidelines McDonald.

3) De minimis and “trivial” burdens

• Mazo recognizes that truly trivial burdens lie outside Anderson–Burdick; Timmons v. Twin Cities Area New Party (1997) suggests that “minor but non‑trivial” burdens trigger balancing.
• Judge Bove contends that writing a date is a five‑second task and classically de minimis; the panel’s contrary view relied on “downstream consequences” (ballot rejection) that are now ameliorated by Coalfield Justice’s notice‑and‑cure mandate.

4) State‑law backdrops: Boockvar vs. Coalfield Justice

• The panel relied on Pa. Democratic Party v. Boockvar (Pa. 2020) to conclude state law afforded no notice or cure for mail‑in ballot defects, heightening constitutional burdens.
• One month after the panel ruling, the Pennsylvania Supreme Court decided Center for Coalfield Justice, holding the Pennsylvania Constitution creates a liberty interest in voting that requires notice of mail‑in ballot rejection and an opportunity to vote provisionally. Judge Phipps argues this change removes two main pillars of the panel’s burden analysis.
• Judge Phipps cites Animal Science Products v. Hebei Welcome and Wainwright v. Goode for the principle that federal courts are bound by state high‑court interpretations of state law.

5) Civil Rights Act context and ballot rejection

• After Migliori v. Cohen (3d Cir. 2022) was vacated, a different panel in NAACP v. Schmidt (3d Cir. 2024) rejected a materiality‑provision challenge, reasoning that failure to comply with state rules does not amount to denial of the right to vote under that federal statute.
• Judge Bove notes that this reasoning undercuts the panel’s disenfranchisement concerns tied to the date requirement: noncompliance with state procedure does not itself equal a federal deprivation of the right to vote.

6) Interests in integrity and administration

• Supreme Court cases such as Crawford v. Marion County and Purcell v. Gonzalez affirm substantial state interests in election integrity and public confidence. The dissents argue Pennsylvania’s interests (solemnity, orderly administration, and fraud deterrence) were undervalued under any applicable standard.
• On fraud prevention, cases like Brnovich v. DNC and Feldman v. Arizona Secretary of State’s Office accept prophylactic measures; empirical proof of past fraud is not a constitutional prerequisite for preemptive regulation.

Legal Reasoning: What the Court Did—and What the Dissents Say It Should Have Done

The operative ruling (by virtue of rehearing denial)

The court’s order itself is procedural: it denies rehearing. Substantively, the order preserves the panel’s ruling that Pennsylvania’s date requirement violates the First and Fourteenth Amendments under Anderson–Burdick. The panel treated the burden as more than de minimis, emphasizing that missing or incorrect dates led to discarding thousands of otherwise valid ballots and that, at the time, voters received neither notice of rejection nor an opportunity to cure by voting in person.

“[W]e are unable to justify the Commonwealth’s practice of discarding ballots contained in return envelopes with missing or incorrect dates that has resulted in the disqualification of thousands of presumably proper ballots.” (panel opinion, quoted in Judge Bove’s dissent)

The panel also found the evidentiary connection between the date requirement and the asserted state interests weak, treating “solemnity” as insufficiently advanced by dating as distinct from signing; considering the SURE system as a less‑burdensome alternative for administrative needs; and treating fraud‑prevention benefits as marginal compared to the burden of disqualifying ballots for trivial errors.

The Phipps dissent: Changed state law and a misweighted balance

• Judge Phipps squarely argues that Coalfield Justice changes the factual and legal backdrop: Pennsylvania must now provide notice of rejection and an opportunity to cast a provisional ballot. Two key burdens the panel had stressed (no notice; no cure) are gone.
• He contends the date requirement should have been treated as imposing a de minimis burden (citing Mazo and Timmons), and that the panel undervalued legitimate, cumulative state interests in solemnity, orderly administration, and fraud deterrence.
• He urges en banc reconsideration both for doctrinal correction and because the panel’s ruling now appears to have little prospective application under the updated state‑law regime.

The Bove dissent: Federalism, doctrinal guardrails, and practical fallout

• Federalism and separation of powers: Judge Bove stresses that the Elections Clause vests primary authority in legislatures (citing Justice Gorsuch’s concurrence in DNC v. Wisconsin State Legislature). He warns that expansive, “standardless” balancing invites courts to override democratic choices.
• No cognizable federal right to vote by mail: Relying on McDonald and allied circuit authority, he argues the case should have been dismissed or reviewed under rational‑basis scrutiny because in‑person voting remained available; “there is no constitutional right to vote by mail” (citing Organization for Black Struggle v. Ashcroft).
• De minimis burden: He characterizes writing a date as a five‑second task—“trivial” by ordinary and legal standards—and criticizes the panel for turning speculative “downstream” consequences into a cognizable burden, particularly given Schmidt and now Coalfield Justice.
• Undervaluation of state interests: He reasons that solemnity, administrative redundancy (the “belt‑and‑suspenders” approach), and fraud deterrence justify modest procedural rules. He notes comparable date‑and‑signature requirements in other election and legal contexts.
• Practical risks: He flags Act 77’s non‑severability clause and related litigation (Baxter v. Philadelphia Board of Elections), warning of cascading effects if striking one provision triggers broader rollbacks.

Impact

Immediate effects in Pennsylvania

• The panel decision remains binding: counties may not reject mail‑in ballots for missing or incorrect dates on the return‑envelope declaration on the theory upheld by the panel.
• Coalfield Justice now requires notice and an opportunity to cure via provisional ballots. That state‑law overlay reduces the very burdens the panel emphasized, complicating the justification for continued federal injunctive relief if predicated on lack of notice/cure.
• Together, the federal invalidation of the date requirement and the state notice‑and‑cure mandate point toward acceptance and remediation of minor envelope errors rather than ballot disqualification.

Doctrinal trajectory and circuit conflict

• The Third Circuit’s refusal to rehear leaves unresolved an acknowledged circuit split over whether Anderson–Burdick or McDonald’s rational‑basis framework governs absentee/mail‑in regulations when in‑person voting is available.
• Within the Third Circuit, the battle lines are now sharply drawn: six judges endorse a narrower role for Anderson–Burdick (or at minimum a robust de minimis threshold and rational‑basis option); the panel opinion reflects a more muscular application of Anderson–Burdick to vote‑by‑mail rules.

Election administration and voter expectations

• For upcoming elections (including November 4, 2025), county boards must harmonize two commands: do not disqualify ballots based solely on missing/incorrect dates per Eakin, and provide notice and an opportunity for provisional voting per Coalfield Justice.
• Voter education messaging should clarify that envelope dating errors will not, standing alone, result in final disqualification and that a cure pathway exists (provisional ballot), consistent with the state supreme court’s directive to avoid misleading electors.

Potential Supreme Court review

• Judge Bove signals that “Pennsylvania must now look to the Supreme Court” to restore the state–federal equilibrium. The persistent split and the high salience of vote‑by‑mail regimes increase the odds that the Court will be asked to clarify whether Anderson–Burdick or McDonald controls, and how de minimis burdens are filtered.

Complex Concepts Simplified

• Anderson–Burdick balancing: A sliding scale. Heavier burdens on constitutional interests require stronger, more precise state justifications; lighter burdens are more easily justified. It is not a strict two‑tier test but a continuum.
• De minimis burden: A negligible or trifling burden that courts may disregard at the threshold. If a burden is truly de minimis, courts often decline to engage in full Anderson–Burdick balancing.
• Rational‑basis review: The most deferential standard of review. A law survives if it bears a rational relationship to a legitimate state purpose. Under McDonald, this may apply to absentee/mail‑in rules when in‑person voting remains available.
• En banc rehearing: Reconsideration by all active judges in a circuit. Typically reserved for correcting panel conflicts with Supreme Court or circuit precedent, or resolving questions of exceptional importance. Denial leaves the panel opinion in place.
• Notice‑and‑cure: A requirement that election officials notify a voter of a defect (such as a missing envelope date) and provide a method (often a provisional ballot) to ensure the vote can still count.
• Non‑severability clause: A statutory provision stating that if part of a law is invalidated, other specified parts fall too. Act 77’s clause raises the stakes of invalidating any single provision, potentially affecting other reforms (e.g., timelines, processing).
• Elections Clause: Article I, Section 4, Clause 1 of the U.S. Constitution assigns to state legislatures the power to prescribe the “Times, Places and Manner” of federal elections, with Congress retaining authority to alter or make regulations.
• SURE system: Pennsylvania’s election administration database referenced in the dissents as an alternative or complementary tool for verifying voter information; relevant to whether a date requirement is administratively necessary.
• Provisional ballot: A ballot cast when there is uncertainty about a voter’s eligibility or an error in a mail‑in submission. It allows the voter to participate while officials verify eligibility post‑election.

Conclusion

The Third Circuit’s denial of rehearing freezes in place a significant constitutional ruling: Pennsylvania’s mail‑in envelope date requirement may not be used to disqualify ballots under the Anderson–Burdick framework as applied by the panel. Yet the legal ground beneath that ruling has shifted. The Pennsylvania Supreme Court’s Coalfield Justice decision now mandates notice and a cure pathway for mail‑in defects, directly undercutting two central premises of the panel’s burden analysis. Six Third Circuit judges urged en banc reconsideration to address this changed context, to cabin the reach of Anderson–Burdick (particularly where burdens are de minimis or mail‑in voting is the only method at issue), and to realign with federalism principles and McDonald’s rational‑basis approach.

Practically, the immediate message to voters and officials is clarity and continuity: no ballot should be rejected solely for an envelope dating error, and affected voters must receive notice with the chance to cast a provisional ballot. Doctrinally, however, the dispute is far from settled. The panel’s approach accentuates circuit splits on Anderson–Burdick’s scope, the role of de minimis burdens, and the proper standard for absentee/mail‑in rules. With national elections imminent and state reforms evolving, the Supreme Court may be asked to resolve these fault lines. Until then, Eakin’s federal invalidation of the date requirement and Coalfield Justice’s state‑constitutional notice‑and‑cure rule will operate in tandem, steering Pennsylvania’s mail‑in voting process away from technical disqualifications and toward remedial protections designed to ensure that eligible votes count.