A voter deposits a mail-in ballot at the drop box outside the Chester County Government Center on Tuesday, Nov. 5, 2024. (Capital-Star/Peter Hall)
As the race for Pennsylvania’s U.S. Senate seat headed to a recount, the Republican National Committee sued all 67 county boards of elections Thursday to enforce the requirement for voters to write the date on mail-in ballots.
The question of whether mail ballots should be thrown out if voters fail to write the date on the return envelope has been the subject of several court decisions this year alone, with the state Supreme Court heading off two lower court rulings that could have changed the status quo weeks before the presidential election.
In a new filing in the Supreme Court on Thursday, the RNC claimed at least three counties have openly defied the high court’s decisions by voting to count ballots that had been set aside because they had missing or incomplete dates.
“By counting undated and misdated mail ballots for the 2024 General Election, they are disobeying this Court’s commands many times over,” the RNC’s lawsuit said, asking the court to immediately issue an order to prevent undated ballots from being included in the counties’ final tallies.
The filing followed a similar lawsuit filed by Republican Senate candidate Dave McCormick in Bucks County court that alleged the Democratic county commissioners, who comprise the majority of the board of elections, had voted Nov. 12, against the advice of the board’s legal counsel, to count 405 undated and misdated mail ballots.
“Dave McCormick won this election and is already participating in Senate orientation meetings. Meanwhile, Democrat officials and scam lawyers are aiding and abetting Bob Casey’s shameful attempts to steal back a Senate seat which he lost decisively,” RNC Chairperson Michael Whatley said in a statement.
The Casey campaign noted Thursday that the RNC’s case was the opposite of a position McCormick took in 2022 during a recount of the GOP primary results for U.S. Senate. Then, his attorneys sought to have undated ballots counted as part of the total. He ultimately lost that primary to Mehmet Oz.
“David McCormick’s hypocritical reversal on undated mail ballots is further proof of his determination to disenfranchise Pennsylvania voters while counties continue to count votes in this razor-thin election,” Casey campaign manager Tiernan Donohue said in a statement. “Senator Casey’s priority continues to be making sure Pennsylvanians’ voices are heard as our democratic process unfolds.”
Pennsylvania Secretary of the Commonwealth Al Schmidt announced Wednesday that the race between incumbent Democratic Sen. Bob Casey and McCormick was within the 0.5% margin that triggers an automatic recount under state law.
McCormick has 48.93% of votes, and Casey has 48.5%, according to unofficial results, Schmidt said, a margin of 0.43%. Schmidt’s office estimated that the recount will cost taxpayers more than $1 million.
The question surrounding the validity of mail ballots with missing or incorrect dates has been the subject of court cases in every election since 2020, when Pennsylvania’s Act 77 made absentee voting without an excuse an option for the first time.
A Commonwealth Court panel ruled in September that the dating requirement violates the Pennsylvania Constitution because it serves no compelling reason for the government to infringe upon the charter’s guarantee of the right to vote. The Supreme Court vacated that decision on a technicality because it named only Philadelphia and Allegheny counties’ elections boards as defendants without giving the other counties the opportunity to be heard.
The Supreme Court rejected a request by voting rights groups represented by the American Civil Liberties Union of Pennsylvania and the Public Interest Law Center to resolve the questions before the election. In an Oct. 5 ruling, the Supreme Court said the risk of confusing voters with a change in voting rules only a month before the election was too great.
A Commonwealth Court panel ruled again in late October that the date requirement was unconstitutional in a case stemming from ballots set aside in a pair of Philadelphia-only special elections for two state House seats. The Supreme Court granted a GOP request to block the ruling from applying in the Nov. 5 election, saying the lower court’s decision was ill-timed.
Justice Kevin Brobson, in a forceful opinion, noted the court only weeks earlier had declined to make changes that would alter ballot counting procedures while the election was in progress: “in declaring we would not countenance substantial alterations to existing laws and procedures during the pendency of an ongoing election, we said what we meant and meant what we said.”