On November 3, the three judges in the 3rd circuit who had upheld Pennsylvania ballot access law on August 23 admitted that their opinion contained a factual error. The three judges therefore granted a rehearing, but then re-issued their original unfavorable decision with the error deleted.

If the plaintiff political parties want a rehearing en banc, they must file a new petition for rehearing en banc by Friday, November 17. The 3rd circuit has 10 full-time judges, and only they will vote on whether to grant a further rehearing. The original panel of 3 judges in this case includes two part-time judges and only one full-time judge, so any vote among the 10 full-time judges would start out with zero favorable votes, but only one unfavorable vote.

The basic holding of the 3rd circuit is that ballot access can be denied to a party, even if it polled enough votes in the last election to meet the definition of “party”. Astonishingly, the 3rd circuit said that votes almost two years ago are not necessarily relevant to whether a party currently has support. Although there is logic in that point, the foundation of ballot access laws concerning qualified parties is dependent on the assumption that past vote returns do matter. The entire reason the Democratic and Republican Parties are automatically on the ballot in 39 of the 50 states is solely that they polled a large vote in the previous election. The 3rd circuit’s main holding is completely outside the mainstream of U.S. election law jurisprudence concerning political parties.