UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT
                         _____________

                         No. 25-1644
                        _____________

         BETTE EAKIN; DSCC; DCCC; AFT PENNSYLVANIA

                             v.

 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; FULTON COUNTY
 BOARD OF ELECTIONS; HUNTINGDON COUNTY BOARD OF ELECTIONS;
 INDIANA COUNTY BOARD OF ELECTIONS; JEFFERSON COUNTY BOARD
DAUPHIN COUNTY BOARD OF ELECTIONS; DELAWARE COUNTY BOARD
OF ELECTIONS; ELK COUNTY BOARD OF ELECTIONS; FAYETTE COUNTY
     BOARD OF ELECTIONS; FOREST COUNTY BOARD OF ELECTIONS;
   FRANKLIN COUNTY BOARD OF ELECTIONS; OF ELECTIONS; JUNIATA
   COUNTY BOARD OF ELECTIONS; LACKAWANNA COUNTY BOARD 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; 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


                REPUBLICAN NATIONAL COMMITTEE;
         NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE;
               REPUBLICAN PARTY OF PENNSYLVANIA,
                     (Intervenors in District Court)
                                                     Appellants

                            _____________________

                         District Court No. 1:22-cv-00340
                          ________________________

                       SUR PETITION FOR REHEARING
                         ________________________


Before: CHAGARES, Chief Judge, HARDIMAN, SHWARTZ, KRAUSE, RESTREPO,
   BIBAS, PORTER, MATEY, PHIPPS, FREEMAN, MONTGOMERY-REEVES,
                CHUNG, BOVE, and SMITH,* Circuit Judges




*
 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.

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      The 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 above-

entitled 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




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.
                                           3
Eakin v. Adams County Board of Elections, No. 25-1644
PHIPPS, Circuit Judge, joined by HARDIMAN, BIBAS, PORTER, MATEY, and BOVE,
Circuit Judges, dissenting sur denial of rehearing en banc.
       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 test1 was the Boockvar decision from the Pennsylvania
Supreme Court, which held that the Free and Equal Elections Clause of the Pennsylvania

Constitution2 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,

, 302, 309–10 (3d Cir. Aug. 26, 2025) (citing Pa. Democratic Party v.
Boockvar, 

, 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 Constitution3 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, 

, 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

1
  See generally Anderson v. Celebrezze, 

 (1983); Burdick v. Takushi, 

 (1992).
2
  Pa. Const. art. 1, § 5.
3
  Pa. Const. art. 1, § 1; see also R. v. Commonwealth, Dep’t of Pub. Welfare, 

 (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.”).

                                              1
de minimis burden, see Mazo v. N.J. Sec’y of State, 

, 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.




4
   Cf. generally Daunt v. Benson, 

, 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., 

 (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, 

(1983))).

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