PHILADELPHIA (KYW Newsradio) — The Pennsylvania Supreme Court on Monday issued a ruling reiterating that any mail-in or absentee ballots that don’t meet election code requirements cannot be counted. It comes amid peak bickering between campaigns, political parties and county elections officials and the ongoing vote count in the U.S. Senate race between Democratic Sen. Bob Casey and Republican David McCormick.
In a 4-3 decision directed at all 67 counties in Pennsylvania, the Democratic-majority high court said county election officials must not count mail-in ballots that lack a correct handwritten date on the return envelope, a decision that Democratic-majority election boards in Montgomery, Philadelphia and Bucks counties nevertheless have challenged.
Their decision to count ballots that lacked a correct date echoed election officials around the state who say the date tells them nothing about a voter’s eligibility or a ballot’s legitimacy.
Republicans maintain that the date is a critical element of ballot security.
In a concurring opinion, Justice Kevin Brobson said he agrees with the decision, and singled out the three counties, saying he wants to make it clear to local elections officials that they do not have the authority to ignore election code provisions they believe are unconstitutional.
While the Court had ruled on the issue before, county boards of elections cited confusion following a lower state court ruling that directed undated ballots in a Philadelphia special election to be counted.
In a dissenting opinion, Justice Christine Donohue said county courts should have handled the decision, rather than the State Supreme Court exercising extraordinary jurisdiction, writing she has “far more confidence in our courts of common pleas to apply the law than do some of my colleagues.”
Various courts have ruled against the date requirement in at least a half-dozen cases — including once by the 3rd U.S. Circuit Court of Appeals — but higher courts have always reinstated it.
Meanwhile, the state Supreme Court has put off ruling on a pending case that calls into question whether the law violates the constitutional right to vote.
McCormick’s position marks a notable change of opinion
Monday’s order is a win for McCormick and a loss for Casey as both campaigns, with vote counts separated by about ¼ of a percent, prepare for a statewide recount and both campaigns press counties for favorable ballot-counting decisions.
“Senator Casey is fighting to ensure Pennsylvanians’ voices are heard and to protect their right to participate in our democracy," said Tiernan Donohue, Casey's campaign manager, in a prepared statement. "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.”
Elizabeth Gregory, McCormick’s communication director, also released a statement:
“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. Senator-elect McCormick is very pleased with this ruling and looks forward to taking the Oath of Office in a few short weeks.”
Just two years ago, McCormick took a position aligned with Democrats in his failed eleventh-hour bid to close the gap in votes with celebrity heart surgeon Dr. Mehmet Oz in the Pennsylvania Republican primary contest for U.S. Senate.
In that case, McCormick’s lawyer told a state judge that the object of Pennsylvania’s election law is to let people vote, “not to play games of ‘gotcha’ with them.”
Bucks County calls accusations of cheating ‘nonsense’
As the ballot challenges became national news and social media fodder, Bucks County Commissioner Bob Harvie issued a statement calling accusations that county officials had voted to count “illegal” ballots “unequivocally nonsense.”
Statewide, the number of mail-in ballots with wrong or missing dates on the return envelope could be in the thousands. However, most counties — including several heavily populated counties controlled by Democrats — didn't count them.
And in the remaining counties, the number of mail-in and provisional ballots challenged in the U.S. Senate race is nowhere near enough to sway the election.
In Bucks County, among mail-in ballots, 225 votes for Casey and 182 votes for McCormick were challenged; and among provisional ballots, 101 votes for Casey and 106 votes for McCormick were challenged.
The Board of Elections’ decisions are consistent with its long-standing practice protecting the rights of Bucks County voters who made immaterial mistakes on ballot envelopes or who suffered mistakes made by election workers, said Harvie.
Ballots subject to legal challenge are segregated so they can be easily removed from the main count if so ordered, he said. The Board makes arguments before the court in defense of Bucks County voters and abides by the final legal outcome.
Harvie condemned the threats and harassment members of the Board of Elections, their families and county staff have suffered as a result of partisan rhetoric and innuendo, and said calls and messages have been turned over to law enforcement.