The Pennsylvania Supreme Court landed yet another blow against Democrat U.S. Sen. Bob Casey’s hope of overturning his defeat at the hands of his Republican challenger.
The court ruled 4-3 in favor of Dave McCormick’s request to reject undated mail ballots.
“[M]ail-in and absentee ballots that fail to comply with the requires of the Pennsylvania Election Code SHALL NOT BE COUNTED for purposes of the election held on November 5, 2024,” the justices ruled Monday.
McCormick, the Pennsylvania Republican Party, and the Republican National Committee invoked the court’s rarely-used King’s Bench Power. The authority allows the Supreme Court to consider “any case pending in a lower court.”
The court ordered that all Boards of Elections in the state, “including … in Bucks County, Montgomery County, and Philadelphia County, SHALL COMPLY with the prior rulings of this Court.”
It wasn’t a surprise. On Nov. 1, a unanimous Supreme Court stayed a late October ruling by the Commonwealth Court that said 69 undated and incorrectly dated absentee and mail-in ballots in a Philadelphia special election could be counted.
McCormick’s lead over incumbent Casey was almost 18,000 votes in unofficial tallies. And while both the Associated Press and DecisionDeskHQ have called the race for McCormick, Casey has refused to concede. He declined to waive his right for a recount last week. That should be completed by Nov. 27.
Adding fuel to the fire were decisions by Democrats in Bucks and Montgomery Counties to validate undated or incorrectly dated ballots – even though they admitted to ignoring the state Supreme Court.
“I think we all know that precedent by a court doesn’t matter anymore in this country. People violate laws anytime they want. So, for me, if I violate this law, it’s because I want a court to pay attention,” said Bucks County Commission Chair Diane Ellis-Marseglia last week during a meeting.
Ellis-Marseglia donated $600 to Casey’s campaign in September.
Republicans said Monday they could ask for legal action against Ellis-Marseglia and other Democrats who flouted the ruling.
Supreme Court Justice Kevin Brobson appeared to acknowledge Ellis-Marseglia’s statements in his concurring opinion Monday on the ballot decision.
“Indeed, this Court has held that administrative agencies, like county boards of elections, lack the authority to declare unconstitutional the very statutes from which they derive their existence and which they are charged to enforce,” Republican Brobson wrote.
Fellow Republican Justice Sallie Mundy and Democrat Justice David Wecht joined Brobson’s concurrence.
Democrat Justice Kevin Dougherty also ruled in favor of McCormick, but did not issue a statement. On Nov. 1, Dougherty heaped scorn on the Commonwealth Court for its decision on undated ballots. He accused it of changing the electoral game “on the very eve of the election” after mail ballots had been shipped and returned. He noted voters, boards of elections, and election workers were already advised on “the handling of undated and misdated ballots.”
Other Democrat justices were not convinced.
Justice Christine Donohue wrote she was “unpersuaded” by Republican arguments over the flawed ballots. She wanted the ballots to be challenged through the courts of common pleas, as written in the Election Code.
Donohue voted in favor of staying the Commonwealth Court’s decision on undated ballots on Nov. 1.
McCormick’s campaign hailed the ruling.
“[It’s] a massive setback to Sen. Casey’s attempt to count illegal ballots. Bucks County and others blatantly violated the law in an effort to help Sen. Casey. Sen.-elect McCormick is very pleased with this ruling and looks forward to taking the oath of office in a few short weeks,” said Elizabeth Gregory, McCormick communications director.
She later told DVJournal all justices agreed with McCormick on the merits.
Gov. Josh Shapiro said, “As I have made clear for years, every eligible Pennsylvanian’s vote should be counted in every race – and thanks to the hard work of Republican and Democratic election officials all across the commonwealth, Pennsylvania has held another free, fair, safe, and secure election.
“As counties continued counting ballots from the 2024 general election and a mandatory statewide recount begins in the U.S. Senate race, they were confronted with a lack of legal clarity surrounding undated mail-in ballots that caused significant confusion and put counties in a challenging legal position. 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,” Shapiro 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.”
Shapiro expects county officials “to adhere to this ruling and all the applicable laws governing our elections.”
“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. As governor, I will continue working to protect our democracy and the votes of all eligible Pennsylvanians – and we will continue to have free, fair, safe, secure elections in our commonwealth.”
The Casey campaign has not commented.
Earlier in the day, Casey campaign manager Tiernan Donohue accused Republicans of trying to disenfranchise voters and vowed to keep fighting. “Sen. 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,” she said.
PennLive.com also published an article from Casey that claimed the debate was “about the constitutionality of disenfranchising thousands of voters due to a requirement that has no bearing on a voters’ eligibility and has no impact in deterring fraud.”
It’s the eighth time an automatic recount will happen in a Pennsylvania election since 2004, according to Secretary of the Commonwealth Al Schmidt’s office and the second involving McCormick. He lost to Mehmet Oz two years ago in the GOP U.S. Senate primary.
McCormick was in Washington, D.C. last week for U.S. Senate orientation.
