Pa. Supreme Court again rules that Philly and other counties cannot count undated mail ballots
The ruling comes after several Philly-area counties defied the court's previous guidance. The issue has come under close scrutiny as the race between Bob Casey and Dave McCormick undergoes a recount.
The Pennsylvania Supreme Court on Monday issued a ruling reiterating its previous stance that undated or misdated mail ballots should not be counted in the 2024 election, dealing a blow to Democratic U.S. Sen. Bob Casey’s hopes that a recount and litigation will help him overcome his just over 17,000-vote deficit to Republican Dave McCormick as of Monday evening.
The 4-3 ruling, which was requested by the Republican Party and opposed by Casey’s campaign, followed moves by elections officials in Democratic-controlled counties — including Philadelphia, Bucks, and Montgomery — to have the ballots counted despite the high court instructing them to exclude those votes earlier in the year. The ruling applies to all counties.
» READ MORE: Undated mail ballots won’t be counted in next week’s election, Pa. Supreme Court rules
Democrats in those counties and elsewhere have pushed to include mail ballots with defects related to the dates voters are required to write on them because the dates are not used by election administrators to determine whether ballots are legitimate. Instead, they only count ballots that are received between when the ballots are distributed and Election Day, making it impossible for a vote to be counted outside of that time frame regardless of what date a voter writes on the ballot.
Republicans have argued that those votes must be excluded from the count because state law requires voters to date their mail ballots. McCormick’s campaign joined the GOP lawsuit after it was filed.
While the ruling settles how these types of ballots are handled this year, the longer legal battle may not be over because the court has not yet weighed in on the underlying question of whether rejecting undated ballots on what Democrats describe as a technicality constitutes a violation of rights guaranteed to voters by the state constitution.
In a ruling issued shortly before Election Day, the Pennsylvania Commonwealth Court found that it did, though that case centered on a special election held in Philadelphia earlier this year. The state Supreme Court stayed the lower court’s decision before Election Day, deciding at the time that it was too close to the Nov. 5 vote for any last-minute changes to rules surrounding which votes should be counted.
Democratic Justices David Wecht and Kevin Dougherty were joined by Republican Justices Kevin Brobson and Sallie Updyke Mundy in the majority decision Monday. Democratic Justices Debra Todd, Christine Donohue, and Daniel McCaffery dissented.
In a concurring statement, Brobson said that it was up to the courts to determine the constitutionality of state election laws and that he wanted “to disabuse local elections officials of the notion that they have the authority to ignore Election Code provisions that they believe are unconstitutional.”
Wecht added in another concurrence, “It is critical to the rule of law that individual counties and municipalities and their elected and appointed officials, like any other parties, obey orders of this Court.”
The total number of ballots in question is likely well under 10,000 and would not be enough to erase Casey’s deficit alone. But the three-term incumbent is also in legal fights with McCormick’s team over how various counties have handled certain categories of provisional ballots across the state.
The Associated Press has called the race for McCormick, but Casey has declined to concede.
Casey campaign manager Tiernan Donohue said Monday that the Democrat wants to ensure all legitimate votes are counted and is being opposed by McCormick’s campaign efforts to “disenfranchise” Pennsylvanians.
“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,” Donohue said. “Meanwhile, David McCormick and the national Republicans are working to throw out provisional ballots cast by eligible Pennsylvania voters and accepted by county boards.”
McCormick spokesperson Elizabeth Gregory cast the ruling as 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,” Gregory said. “Senator-elect McCormick is very pleased with this ruling and looks forward to taking the Oath of Office in a few short weeks.”
Bucks commissioner’s comments became lightning rod
Bucks County Commissioner Diane Ellis-Marseglia became the target of GOP ire over the issue for voting to count disputed provisional ballots while saying, “For me, if I violate this law, it’s because I want a court to pay attention.”
Chris LaCivita, President-elect Donald Trump’s campaign manager, even said Monday that Ellis-Marseglia and other Bucks County commissioners “will go to jail” for defying the Supreme Court.
Ellis-Marseglia said Monday she was glad the court clarified the undated mail ballot issue, which is separate from the provisional ballots question but also part of the ongoing Casey challenge.
“This is exactly what I was hoping for, for the court to weigh in and give us clarity,” Ellis-Marseglia said. “We were under a stay, and now we have full clarity.”
Ellis-Marseglia said the backlash against her is a “misinterpretation of inartfully worded statement on my part, but taken completely out of context.”
“I apologize for all the upset and confusion it caused, and I am just glad that we are where we are today with the ruling,” Ellis-Marseglia said.
Commissioner Bob Harvie, a Democrat who chairs Bucks County’s election board, said in a statement that Bucks “will of course comply” with the order, which offered “precisely the clarity we were seeking.”
Harvie said the undated mail ballots would have amounted to 326 more votes for Casey and 288 for McCormick.
”These numbers make clear, as has been known by both parties, that these votes were never going to alter the outcome of this race,” he said.
Gov. Josh Shapiro, a Democrat, broke his silence on the issues surrounding the Senate race recount following Monday’s ruling and joined in criticism of Ellis-Marseglia and other county officials who defied the court.
“Any insinuation that our laws can be ignored or do not matter is irresponsible and does damage to faith in our electoral process,” Shapiro said. “It is critical for counties and officials in both parties to respect it with both their rhetoric and their actions.”
Shapiro, a former Montgomery County commissioner, said counties were “damned if they did and damned if they didn’t” count undated ballots because of failures by the state legislature to address problems with state election law.
Philadelphia’s City Commissioners had voted 2-1 to count undated mail ballots, with Seth Bluestein, the lone Republican, voting against it. Commissioners Chair Omar Sabir could not immediately be reached for comment Monday.
Commissioner Lisa Deeley said in a statement that she was “deeply disappointed” that the court still hasn’t ruled on the underlying issue of whether it’s unconstitutional to disenfranchise a voter for failing to correctly date their mail ballot envelope.
”This question remains an open issue,” she said. “I will continue to fight, through every viable legal avenue, to make sure that we are enfranchising eligible voters, not disenfranchising.”
Other fronts in the legal battle
The debate over undated mail ballots was just one of several legal fronts Casey and McCormick’s campaigns have been at odds over.
Over the last several days, the McCormick campaign filed lawsuits appealing the inclusion of more than 1,800 provisional ballots, with almost all of them cast in Philadelphia, Montgomery, Bucks, Chester, and Delaware Counties.
Democrats, meanwhile, have filed appeals to count more than 3,000 provisional ballots that were initially excluded, including more than 2,000 from Philadelphia alone.
Provisional ballots are paper ballots that are cast by voters on Election Day when poll workers cannot confirm the voters are eligible to vote at the precincts where they appeared.
After Election Day, county election officials go through provisional ballots to determine whether the votes should be excluded, such as if the person was not a registered voter, or if they should be counted, such as someone who registered at the deadline and whose name had not yet appeared in the state’s database.
As was the case with mail ballots, the campaigns are fighting over technicalities including whether the precinct judges of elections and minority inspectors signed the ballots.
In some cases, Democrats are arguing that legitimate ballots could be disqualified due to poll worker error. Republicans are generally arguing for a letter-of-the-law interpretation of election rules, contending that ballots with defects must be excluded regardless of how those errors occurred.
Staff writers Jeremy Roebuck and Katie Bernard contributed to this article.