Republican Dave McCormick (left) in Washington on Tuesday after meeting with Senate Republicans at the Capitol. Sen. Bob Casey (right) departing a Scranton polling place after voting last week.
It’s been a week since the Associated Press called Pennsylvania’s tight Senate race for Dave McCormick, concluding the Republican had closed off any viable path for Democratic Sen. Bob Casey to still eke out a win.
But their campaigns are still battling it out in counties and in court.
With certification deadlines and a statewide recount looming, the candidates are locked in a county-by-county trench battle over small tranches of contested provisional ballots left to be counted across the state. Statewide, officials estimated fewer than 80,000 of the ballots cast — or less than 2% of the vote — remained outstanding as of Thursday.
For Casey, who has resisted conceding as remaining votes are counted, those small county-level fights — sometimes over just dozens of ballots — offer his last, best chance to make up his roughly 25,000-vote deficit in the race.
Though closing the gap remains a long shot, Casey’s insistence has also reignited long-standing disputes between Republicans and Democrats over which votes should be counted and which should be rejected — and prompted some counties to openly defy recent rulings from the Pennsylvania Supreme Court.
“I think we all know that precedent by a court doesn’t matter anymore in this country,” said Bucks County Commissioner Diane Ellis-Marseglia, a Democrat, as she cast a vote Thursday to count certain deficient provisional ballots previously barred by court order, where voters did not sign in one or both necessary boxes.
“People violate laws any time they want,” she said. “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.”
McCormick and his GOP allies are fighting back and on Thursday filed a pair of lawsuits contesting recent decisions by Philadelphia, Bucks, Montgomery, and Centre Counties to include court-barred undated mail ballots in their counts.
But as the war wages on, Republicans are projecting confidence in the outcome and ramping up calls for Casey to throw in the towel.
“There is one inescapable truth to all of this,” said Mark Harris, lead strategist for the McCormick campaign. “When counting is done, Dave will be winning by tens of thousands of votes. It will not be close.”
Provisional fights
So far, the fights over remaining votes have largely fallen into two categories: efforts by Democrats to count as many contested provisional ballots as possible and decisions by election boards in some Democratic-leaning counties to include undated mail ballots in their final tallies despite repeated court orders that they should be rejected this year.
In more than 10 hours of public meetings across Philadelphia’s collar counties Thursday, attorneys for McCormick and Casey battled over whether to count or reject buckets of provisional ballots with distinct procedural defects, like missing signatures or privacy envelopes, or those cast by voters whose eligibility was in question.
That meticulous process left board members spending, at times, more than 30 minutes debating the fates of small handfuls of ballots.
In Montgomery County, Democrats urged the board in the deep-blue county to accept roughly 80 provisional ballots without secrecy envelopes because several came from the same precincts, suggesting an error made by poll workers.
Board chair Neil Makhija, a Democrat, voted to accept the ballots in an effort to enfranchise more voters. But his fellow Democrat Jamila Winder and Republican Tom DiBello voted against him, leaning on advice from county attorneys that the law was clear that those ballots should be rejected.
In Bucks County, the campaigns duked it out over voters who had failed to sign their provisional ballots in one or both of two required places — prompting Marseglia’s vote to include them, despite a Pennsylvania Supreme Court order earlier this year that those ballots should be thrown out.
“It’s not always so simple to determine when a vote is legally cast and when there’s some gray area,” said Bob Harvie, who, like Marseglia, is a Democratic board member.
Board members in Chester County mulled what to do about voters registered in other counties who had mistakenly cast provisional ballots in Chester.
And in Delaware County, the election board dismissed an effort from Casey’s campaign to include votes from 114 voters who the county determined weren’t on official voter rolls. The campaign argued these voters were, in fact, registered, but did not offer definitive proof.
Similar decisions are expected to be made by counties across the commonwealth in the next several days. Philadelphia’s meeting to rule on provisional ballots is Friday.
And these meetings aren’t the end of the road. Parties will have the opportunity to appeal any election board decisions in Common Pleas Court.
Broadly, Pennsylvania Democrats say their goal is to count as many provisional ballots as possible, including those submitted by voters who had been removed from the voter rolls and voters who were registered in another county.
“It’s the goal of the Democratic Party to count votes — not to not count votes,” Democratic attorney Dawn Burke told the Bucks County Board of Elections on Thursday.
Republicans, meanwhile, have sought to exclude several categories of provisional ballots, including those cast by voters who had previously submitted mail ballots that were rejected over procedural defects. And they have singled out as particularly egregious Democrats’ efforts to defend voters who cast provisional ballots in counties where they did not appear to have been registered.
“We think this is totally an extreme argument, it’s very outside the mainstream,” said James Fitzpatrick, an attorney for the McCormick campaign.
Undated ballots
Meanwhile, a separate fight is brewing over the fate of some of the most litigated ballots in the state — mail ballots submitted without a date or with the wrong date written on the outer envelope.
Despite two earlier rulings from the Pennsylvania Supreme Court that those ballots should be rejected in this year’s election, officials in Bucks, Montgomery, Philadelphia, and Centre Counties have bucked that order and voted in recent days to include them.
Though those openly defiant decisions will almost certainly be overturned in court, they continue a recent pattern by majority commissioners in all four counties to vote for the inclusion of undated ballots. None of the commissioners who supported their inclusion couched their votes in terms of the ongoing Senate race.
Instead, they argued the dates serve no meaningful purpose because elections officials don’t use them to determine whether a ballot was received on time. Rejecting them, they say, unfairly disenfranchises thousands of otherwise eligible voters each year.
Some have also pointed to a recent ruling by Commonwealth Court that found that the decision to exclude undated ballots in a special election in Philadelphia earlier this year amounted to a violation of rights guaranteed to voters by the state’s constitution.
“A date does not provide us with anything we don’t already know,” said Makhija, the Montgomery County board chair. “I cannot take a vote not to count a ballot we know is validly cast.”
For Casey, the decision by those counties to include undated ballots in their tallies could prove particularly important.
Undated ballots likely make up the largest tranche of ballots for which the fate remains undecided.
And since Democrats are overwhelmingly more likely to vote by mail than Republicans, Casey is likely to benefit most from the inclusion of mail ballots that would have been rejected for missing or incorrect dates.
That’s doubly true in many of the counties that have voted to include them — especially Philadelphia — where he has outperformed McCormick in the overall vote.
Future elections
Whether or not the ongoing fights over provisional and undated ballots change the outcome of the McCormick-Casey race, the court battles to come could end up determining which votes get counted in future elections. And in many cases, that’s the clear aim.
The Pennsylvania Supreme Court has not yet ruled on the constitutional argument behind the undated ballot issue, but the justices will now have an avenue to do so through lawsuits filed by the Republican National Committee and the Pennsylvania GOP.
They have also asked the court to issue an emergency order barring any county from including undated ballots in this year’s count. McCormick’s campaign backed these suits, a reversal for the candidate who fought to include undated ballots in 2022 during a tight GOP Senate primary race against Mehmet Oz.
Meanwhile, in their challenges, Republicans have also sought to extend a fight that made it to the U.S. Supreme Court earlier this year.
They have consistently pushed counties to reject provisional ballots cast by voters who had previously submitted a rejected mail ballot, a category the Pennsylvania Supreme Court ruled last month should be counted.
The GOP appealed that decision to the U.S. Supreme Court, which declined to take up the case, though three of the court’s conservative justices — Samuel A. Alito Jr., Clarence Thomas, and Neil M. Gorsuch — signaled they would be open to hearing further argument on the issue at a later date.
“We need to preserve [our objection] because that decision is being appealed further,” GOP lawyer Brett Henry told Montgomery County officials Thursday as he challenged the inclusion of those ballots in the tally.
But as those decisions drag on and county meetings continue, Casey has offered no indication he intends to back down.
“Senator Casey’s priority,” his campaign said in a statement Thursday, “continues to be making sure Pennsylvanians’ voices are heard as our democratic process unfolds.”
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