McCormick steps up legal fight over undated ballots, as Bob Casey defends counties that counted them in defiance of court orders
The brewing legal fights center on fewer than 1,600 ballots cast in four Democratic leaning counties. But the issue is of broader importance to both parties.
Republican Senate candidate Dave McCormick stepped up his legal efforts to block the counting of undated mail ballots Friday, as incumbent Democrat Bob Casey came to the defense of four county election boards that defied the Pennsylvania Supreme Court and voted to include them in their final tallies.
In a suit filed Friday, McCormick accused Philadelphia’s Board of Commissioners of willfully ignoring earlier orders from the state’s high court that counties should reject ballots from voters who failed to date or incorrectly dated the outer envelopes, as required by state law, in this year’s election.
The filing followed similar challenges McCormick has lodged in Bucks and Centre Counties. Democratic members of all three county boards — as well as those in Montgomery County — voted earlier this week to count those ballots, saying that refusing to do so would needlessly disenfranchise otherwise eligible voters over a technicality.
» READ MORE: As Casey stays in Senate race, he’s pinning his hopes on small, county-level fights over contested votes
Meanwhile, the Republican National Committee and the state GOP has called on the Supreme Court to reiterate its earlier edicts and bar all 67 Pennsylvania counties from making similar decisions. Casey’s campaign sought to enter that fight Friday, maintaining that rejecting undated ballots amounted to a violation of voters’ rights under the state constitution.
It was the same argument McCormick had marshaled when he’d pushed state courts to count undated ballots two years ago amid his 2022 GOP Senate primary race against TV doctor Mehmet Oz and before he reversed his position during this year’s race.
“In what can only be understood as a confused or defiant action, the [Philadelphia City C]ommissioners voted to count 607 mail ballots that do not comply with the date requirement,” McCormick attorney George Bochetto said in his lawsuit over that board’s decision. “The Pennsylvania Supreme Court has clearly prohibited this action.”
Casey’s campaign shot back, insisting: “Pennsylvanians deserve to have their voices heard, and we will utilize every legal option to oppose McCormick’s voter suppression tactics and ensure these legal votes are counted.”
Despite the rhetoric and proliferation of litigation, the court battles center on fewer than 1,600 ballots cast in four Democratic counties — a far cry from the nearly 22,000 votes by which Casey trailed McCormick as of Friday evening.
But as a statewide recount of the race gets underway next week — days after the Associated Press declared McCormick the victor and determined that Casey had no path to victory — the candidates and their parties are fighting about more than just the stakes for this year’s campaigns.
Democrats and voting rights advocates have pushed for years for the inclusion of undated ballots, maintaining the voter’s handwritten date on the outer envelope is irrelevant and not used by elections officials to determine whether a ballot was submitted on time.
They point to a recent Commonwealth Court ruling that found such ballots should have been counted in a special election earlier this year in Philadelphia based on the same state constitutional argument Casey is now making.
Republicans insist that, regardless of whether the dates are used, Pennsylvania’s election law clearly states they’re required for a ballot to be considered valid.
And despite two orders this fall from the Pennsylvania Supreme Court that seemed to send a clear message to counties — undated ballots should not be counted for this election — the court’s justices have yet to take up the constitutional argument Casey and his Democratic allies are making.
“Each county board (and each of the commissioners who constitute those boards) has an independent obligation to consider whether the constitution requires counting these ballots — an issue the court has not resolved on the merits,” lawyers for Philadelphia, Montgomery, and Bucks Counties wrote in a joint-legal brief defending their boards’ decisions to count undated ballots.
Undated and misdated ballots — especially in the Philadelphia region, which leans heavily Democratic — are likely the largest remaining tranche of contested ballots that could help Casey whittle down his roughly 22,000 vote deficit. But their inclusion in this year’s tallies would still not likely be enough to push him past McCormick’s lead.
To do so, Casey would also need to win several ongoing, county-level fights over the inclusion of contested provisional ballots. On Friday, his and McCormick’s lawyers battled in front of the Philadelphia Board of Commissioners over the remaining roughly 7,000 provisional ballots in the city.
Ultimately, the board rejected the majority of the ballots, allowing fewer than 1,000 to be counted.