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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 25-1644
Page 2BOARD 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; WAYNE COUNTY BOARD OF ELECTIONS; WESTMORELAND COUNTY BOARD OF ELECTIONS; WYOMING COUNTY BOARD OF ELECTIONS; ERIE COUNTY BOARD OF ELECTIONS; GREENE COUNTY BOARD OF ELECTIONS; PHILADELPHIA COUNTY BOARD OF ELECTIONS; SCHUYLKILL COUNTY BOARD OF ELECTIONS; SUSQUEHANNA COUNTY BOARD OF ELECTIONS; YORK COUNTY BOARD OF ELECTIONS; ARMSTRONG COUNTY BOARD OF ELECTIONS; WASHINGTON COUNTY BOARD OF ELECTIONS
District Court No. 1:22-cv-00340
SUR PETITION FOR REHEARING
Page 3The petition for rehearing filed by the Intervenor Appellant, the Commonwealth of Pennsylvania, and the petition for rehearing filed by the Intervenor Appellants, the Republican National Committee, the National Republican Congressional Committee, and the Republican Party of Pennsylvania, in the aboveentitled case having been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the judges of the circuit in regular service not having voted for rehearing, the petitions for rehearing by panel and the Court en banc, are denied.1
BY THE COURT,
s/D. Brooks Smith Circuit Judge
Dated: October 14, 2025 tmk/cc: all counsel of record Page 4Eakin v. Adams County Board of Elections , No. 25-1644
The decision in this case declared unconstitutional the date requirement for mail-in ballots in Pennsylvania on the ground that its burden on voters outweighed the Commonwealth's interests in the orderly administration of elections, the solemnity of elections, and the prevention of election fraud. Central to this Court’s analysis under that Anderson-Burdick balancing test 1 was the Boockvar decision from the Pennsylvania Supreme Court, which held that the Free and Equal Elections Clause of the Pennsylvania Constitution 2 did not require either notice to voters of the rejection of their mail-in ballots or the opportunity to correct ballot defects. See Eakin v. Adams Cnty. Bd. of Elections , 149 F.4th 291, 302, 309-10 (3d Cir. Aug. 26, 2025) (citing Pa. Democratic Party v. Boockvar , 238 A.3d 345, 374 (Pa. 2020)). A month after this Court's ruling, however, the Pennsylvania Supreme Court decided Coalfield Justice , which held that the Inherent Rights Clause of the Pennsylvania Constitution 3 requires that mail-in voters receive notice of the rejection of their ballots and the opportunity to correct ballot defects. Ctr. for Coalfield Just. v. Wash. Cnty. Bd. of Elections , 2025 WL 2740487, at *8, *25, *30 (Pa. Sept. 26, 2025). This Court’s decision evaluated the prior scheme for mail-in voting, not the one now required by Coalfield Justice .
As a legal matter, this Court's decision was already questionable because in its Anderson-Burdick balancing, it did not treat the date requirement for mail-in ballots as a Page 5de minimis burden, see Mazo v. N.J. Sec’y of State , 54 F.4th 124, 138–39 (3d Cir. 2022), and because it substantially undervalued the Commonwealth’s identified interests in the date requirement.4 And that was before Coalfield Justice eliminated two of the key rationales for this Court’s decision: the lack of notice of a rejected mail-in ballot and the absence of an opportunity to correct such a rejected ballot. So now as a practical matter, reconsideration of this Court’s decision is especially needed because it is not clear that the ruling has any applicability going forward – it appears not to.5
In short, there are significant questions about this Court’s decision, and as a matter of exceptional importance, it merits en banc reconsideration. I therefore vote for such review.
* The vote of the Honorable D. Brooks Smith, Senior Judge of the United States Court of Appeals for the Third Circuit, is limited to panel rehearing.
1 Judges Hardiman, Bibas, Porter, Matey, Phipps, and Bove would grant the petitions for rehearing by the en banc court. Judge Phipps, joined by Judges Hardiman, Bibas, Porter, Matey and Bove, files the attached dissent sur denial of rehearing. Judge Bove will file a separate dissent sur rehearing on a later date.
1 See generally Anderson v. Celebrezze , 460 U.S. 780 (1983); Burdick v. Takushi , 504 U.S. 428 (1992).
2 Pa. Const. art. 1, § 5.
3 Pa. Const. art. 1, § 1; see also R. v. Commonwealth, Dep’t of Pub. Welfare , 636 A.2d 142, 152 (Pa. 1994) (“Even though the term ‘due process’ appears nowhere in [Section 1 or 11 of Article I of the Pennsylvania Constitution], due process rights are considered to emanate from them.”).
4 Cf. generally Daunt v. Benson , 999 F.3d 299, 322-33 (6th Cir. 2021) (Readler, J., concurring) (identifying broader problems with the Anderson-Burdick balancing test and its application).
5 Cf. Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co. , 585 U.S. 33, 44 (2018) (“If the relevant state law is established by a decision of ‘the State’s highest court,’ that decision is 'binding on the federal courts.'' (quoting Wainwright v. Goode , 464 U.S. 78, 84 (1983))).