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)
Pennsylvania’s highest court on Monday granted a Republican Party request to order Pennsylvania counties not to count mail and absentee ballots with missing or incorrect dates for the Nov. 5 election.
The 4-3 state Supreme Court decision came as Pennsylvania’s tightly contested U.S. Senate race heads to a mandatory recount and lawyers for Republican Dave McCormick and Democratic incumbent Bob Casey went to court to challenge how county elections have chosen to handle provisional ballots with irregularities.
The Associated Press called the race for McCormick on Nov. 7, but Casey has refused to concede, citing the large number of ballots still to be counted at the time.
“Today’s ruling is a massive setback to Senator Casey’s attempt to count illegal ballots. Bucks County and others blatantly violated the law in an effort to help Senator Casey,” McCormick campaign communications director Elizabeth Gregory said in a statement. “Senator-elect McCormick is very pleased with this ruling and looks forward to taking the Oath of Office in a few short weeks.”
As of Monday, unofficial results from the state elections website showed McCormick with a lead of just over 17,000 votes.
Meanwhile, video from a Nov. 14 Bucks County Board of Elections meeting went viral over the weekend, after Democratic Commissioner Dianne Ellis-Marseglia said she would not support a Republican colleague’s motion to throw out ballots with missing signatures in accordance with a state Supreme Court ruling.
In a radio appearance Monday, Secretary of the Commonwealth Al Schmidt said Marseglia’s comments were “mistaken,” “irresponsible” and “unhelpful.”
And thus, Pennsylvania’s 2024 election count headed into its second week.
Casey campaign lawyer Adam Bonin said the challenges across the state fall into three categories, with the Republican National Committee, Pennsylvania Republican Party and McCormick challenging undated and misdated mail-in ballots and provisional ballots that lack signatures.
AP calls Pennsylvania’s U.S. Senate race for Dave McCormick but Bob Casey refuses to concede
The Casey campaign was “on offense” challenging decisions to throw out provisional ballots where the voter signed the outside envelope in only one location, Bonin said. Casey’s campaign spokesperson was unable to provide details on how many challenges it has initiated, but said it is “taking legal action to ensure every eligible ballot is counted.”
Bonin said state law and the federal Help America Vote Act require that provisional ballots be counted and the campaign is challenging decisions to throw out ballots where election workers and not voters made mistakes.
“What we see is an unfortunate number of polling places where, due to poll worker error, the voter is not doing certain things and now they’re being disenfranchised,” Bonin said.
It was a challenge by McCormick to ballots with that manner of irregularity that prompted Marseglia to suggest she would violate a court ruling to prompt further legal scrutiny.
What happened in Bucks County
The Bucks County Board of Elections met on Nov. 12 to discuss challenges to provisional ballots from the McCormick campaign and Republican National Committee.
Wally Zimolong, the McCormick campaign lawyer, hoped that it would be open and shut. In September, the Pennsylvania Supreme Court upheld a ruling that Luzerne County should not count provisional ballots missing one of the two required signatures. This was the case with a number of the provisional ballots in question in Bucks County.
But Dawn Burke, a lawyer representing the Pennsylvania Democratic Party, pushed back. Provisional ballots must be signed by the voter before and after voting and by two poll workers. Burke argued that, in this case, poll workers who were directed by the Department of State to ensure that provisional ballots were filled out correctly had failed to do so. She argued this was a violation of voters’ “due process.”
The back and forth between commissioners grew tense. When Republican board member Gene DiGirolamo motioned to dismiss the ballots with missing signatures, Democrat Diane Ellis-Marseglia refused.
“I’m not going to second that, mostly because I think we all know that precedent by a court doesn’t matter anymore in this country and people violate laws any time they want,” she said. “So for me if I violate this law it’s because I want a court to pay attention to it. There is nothing more important than counting votes and I’ll take it all the way.”
Ultimately, Marseglia sided with the two other elections board members in upholding a number of challenges, including to ballots missing both required signatures. However, she was joined by Chairperson Bob Harvie, also a Democrat, in rejecting the challenges to ballots missing only one signature, citing poor instructions from poll workers.
“I’m OK with going back to court on this and trying to force some kind of changes,” Marseglia said. “It’s not fair to have the judge of elections make the mistake.”
During a call with reporters on Monday morning, Michael Whatley, chairman of the RNC, said it planned to pursue legal action against the Bucks County commissioners.
“Democratic officials have gone on the record acknowledging that they are defying the law —as set forth by the Pennsylvania Supreme Court and the Pennsylvania legislature — who have said on video that court rulings don’t matter in this country, and admit that they are casting law-defying votes meant to draw attention to the recount,” Whatley said on the call. “It is imperative that these officials who are engaging in such conduct face serious consequences for their brazen betrayal of the public’s trust.”
Schmidt noted during a Monday radio interview with WPHT-AM in Philadelphia that the recount was required under state law since the margin of votes between Casey and McCormick was within 0.5%, and was not taking place because there was anything amiss.
Gov. Josh Shapiro said in a statement Monday that the Department of State had repeatedly advised counties to segregate challenged provisional ballots and undated ballots in anticipation of a court ruling.
“The court has now ruled on the counting of these ballots specific to the November 5, 2024 election and I expect all county election officials to adhere to this ruling and all the applicable laws governing our elections,” Shapiro said. “As we move forward, I want to be clear: any insinuation that our laws can be ignored or do not matter is irresponsible and does damage to faith in our electoral process. The rule of law matters in this Commonwealth, and as I have always said, it is critical for counties and officials in both parties to respect it with both their rhetoric and their actions.”
Shapiro added that county elections officials were hampered by a lack of legal clarity over what the rules surrounding mail ballots would be.
Pennsylvania officials still face a race against the Election Day clock in mail ballot count
“Both my predecessor and I have repeatedly called on lawmakers to deliver greater clarity on mail-in voting – and due to certain legislative actors refusing to act on critical election reforms, this issue had been left to the courts,” he said. “Given this lack of clarity, county officials in each of our 67 counties were damned if they did and damned if they didn’t – likely facing legal action no matter which decision they made on counting.”
In the case the state Supreme Court decided Monday, the RNC and state Republican Party filed a lawsuit asking the court to use its King’s Bench jurisdiction to order all 67 county boards of elections not to count mail-in and absentee ballots with missing or incorrect dates.
That’s a problem that has surfaced in every election since voting by mail without an excuse became an option in 2020. The court was faced for the first time this year with deciding if the date requirement is legal under the Pennsylvania Constitution after a lower court ruled it was not.
Citing a procedural flaw in the case, the Supreme Court threw out the Commonwealth Court ruling that the date requirement impermissibly infringed on the right to vote because it serves no compelling government interest. It then ruled twice that it would not take up the question immediately before the election.
In its unsigned-two page order Monday, the court stressed that it was agreeing to rule in the GOP lawsuit only for the purpose of emphasizing its 2023 ruling that the date requirement is mandatory and counties should follow it. But it made clear that the order did not supersede decisions in litigation initiated in the wake of the Nov. 5 election.
In a court filing on Friday, Centre County filed a reply stating its opposition to the use of King’s Bench power, and Schmidt in his role as Secretary of the Commonwealth, filed an amicus brief arguing that short circuiting the usual appeals process would cut off the path to resolving the underlying constitutional question. The three dissenting justices took a similar position that challenges would be best decided by county courts.
Pennsylvania U.S. Senate race between Casey and McCormick going to a recount
Hearings in McCormick’s suit in Philadelphia were held Monday and scheduled for Tuesday in Bucks County. A Centre County judge last week dismissed a lawsuit by McCormick there because it wasn’t filed within the deadline to challenge an election board ruling.
In a Monday editorial for PennLive, Casey wrote in favor of including undated mail ballots, noting that McCormick had made the same argument in a 2022 recount of the Republican U.S. Senate primary. McCormick ultimately lost to Mehmet Oz, who went on to lose to John Fetterman in the general election.
“Undated mail ballots have long been at issue in Pennsylvania’s elections. Gov. Wolf’s administration advocated to have these ballots count, as has Secretary of State Al Schmidt, and even my opponent himself,” Casey wrote. “The Commonwealth Court of Pennsylvania has ruled twice in 2024 alone that throwing out these ballots violates Pennsylvania’s constitution.”
In that 2022 recount, McCormick conceded to Oz after some counties had already completed the recounting process.
Casey’s campaign reiterated its position Monday that McCormick and the GOP were trying to disenfranchise Pennsylvania voters.
“Senator Casey is fighting to ensure Pennsylvanians’ voices are heard and to protect their right to participate in our democracy – just like he has done throughout his entire career,” Casey campaign manager Tiernan Donohoe said in a statement Monday after the ruling. “Meanwhile, David McCormick and the national Republicans are working to throw out provisional ballots cast by eligible Pennsylvania voters and accepted by county boards. It is wrong and we will fight it.”
Counties have to begin the recount no later than Nov. 20. Schmidt said the results will be announced Nov. 27.
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