Dave McCormick sues Philly elections officials over their decision to count undated ballots in defiance of court orders

Republican Senate candidate Dave McCormick sued Philadelphia’s Board of Commissioners on Friday, the latest in a series of legal challenges he’s filed against elections officials who have voted to count undated or misdated mail ballots in defiance of orders from the Pennsylvania Supreme Court.

The Philadelphia board — led by chair Omar Sabir, a Democrat — chose in a meeting Wednesday to include more than 600 ballots submitted by voters who’d failed to date or incorrectly dated the outer envelopes, as required by state law.

Though Democrats and voting rights groups have long argued that the date is irrelevant and is not used by elections officials to determine whether a ballot was submitted on time, the Pennsylvania Supreme Court in a pair of orders this fall sent a clear message to counties: Those ballots should not be counted for this election.

Philadelphia, like many of the other counties that have voted to count them anyway — including Bucks, Montgomery,and Centre Counties — has defended that decision by saying excluding those ballots unfairly disenfranchises tens of thousands of otherwise eligible voters each year.

They also point to a recent Commonwealth Court ruling that concluded rejecting undated and misdated ballots constitutes a violation of the rights guaranteed to voters by the state constitution.

» READ MORE: As Casey stays in Senate race, he’s pinning his hopes on small, county-level fights over contested votes

Shortly afterward, the Supreme Court issued an order clarifying the lower court’s ruling and mandating that it should not be applied to the 2024 election. The justices have yet to take the issue up on the merits.

In his lawsuit in Philadelphia on Friday, McCormick — joined by the Republican National Committee and the Pennsylvania GOP — asked a Common Pleas Court to overturn the board’s decision and remove undated and misdated ballots from Philadelphia’s final count.

“In what can only be understood as a confused or defiant action, the commissioners voted to count 607 mail ballots that do not comply with the date requirement,” McCormick attorney George Bochetto said. “The Pennsylvania Supreme Court has clearly prohibited this action.”

The filing comes a day after McCormick filed a similar suit against Bucks County’s elections board and the Republican National Committee asked the state Supreme Court to reiterate its previous orders to all of Pennsylvania’s 67 counties.

In another openly defiant vote to include a separate batch of provisional ballots deemed invalid by the Supreme Court, Bucks County Commissioner Diane Ellis-Marseglia on Thursday said she hoped to send a message.

“I think we all know that precedent by a court doesn’t matter anymore in this country,” she said. “People violate laws any time they want. So, for me, if I violate this law, it’s because I want a court to pay attention. There’s nothing more important than counting votes.”

The county rebellion comes amid a statewide recount in the tight race between McCormick and Democratic incumbent Bob Casey — a contest in which the candidates were separated Friday by fewer than 24,000 votes. Despite the ongoing tallying, the Associated Press called the race for McCormick last week, concluding that Casey no longer had any viable path to victory.

While none of the counties that voted to count undated mail ballots have couched their votes in terms of the ongoing Senate race and have instead cited broader concerns over disenfranchising voters, their decisions are likely to benefit Casey.

Democrats are overwhelmingly more likely to vote by mail than Republicans. And that’s doubly true in many of the counties that have voted to include undated and misdated ballots in their final tallies — especially in Philadelphia, where Casey has received more than four times as many votes as McCormick in the overall count.

Still, McCormick’s effort to exclude undated ballots marks a reversal from his position two years ago, when he urged courts to count them as he was locked in a tight GOP primary contest against then-opponent Mehmet Oz.