Dave McCormick sues to block counting of undated and misdated absentee ballots in Senate race against Bob Casey

As vote counting continues this week in Pennsylvania’s tight Senate race, attention is once again turning to the largest and most contested tranche of remaining votes that could lend a hand Democratic Sen. Bob Casey close his deficit.

At least four counties – including Philadelphia, Bucks, Montgomery and Center – voted to include thousands of undated and misdated absentee ballots in the final vote tallies, apparently in defiance of an earlier ruling by the Pennsylvania Supreme Court.

The move prompted two fresh lawsuits to be filed Thursday by GOP candidate Dave McCormick and his GOP allies seeking to block it and, in McCormick’s case, a reversal of a 2022 position when he insisted that courts order the undated ballots to be included in the ballot among others a close fight, his GOP primary race this year against TV doctor Mehmet Oz.

Before last week’s election, the matter seemed to have been settled. State Supreme Court justices have twice ruled that for the 2024 election, counties should reject absentee ballots submitted by voters who did not write the correct date on the ballot envelope, as required by state law.

Now, defiant votes in some counties and an ongoing fight between Casey and McCormick — who was declared the winner by the Associated Press last week and currently leads his rival by just over 25,000 votes — threaten to interrupt the debate again.

“Various county boards are seeking to change the rules for 3 o’clock elections,” attorneys for the Pennsylvania Republican National Committee and GOP wrote in a letter Thursday, asking the Pennsylvania Supreme Court to confirm its position that undated ballots should be thrown out in this case.

“By counting undated and misdated ballots in the 2024 general election, they repeatedly violate this court’s orders,” the lawyers continued. “They are confused at best; at worst, they openly defy the authority of this court.”

Although votes cast in Philadelphia, Bucks, Montgomery and Center counties will almost certainly be invalidated in court, majority commissioners in all four are continuing a recent pattern of voting to include undated ballots.

None of the commissioners who supported their inclusion expressed their vote in the context of the ongoing Senate race.

Instead, they argue that the dates serve no meaningful purpose because election officials don’t apply them to determine whether a ballot arrived on time. They argue that their rejection unfairly disenfranchises thousands of otherwise eligible voters each year. Some also pointed to a recent ruling by the state’s Commonwealth Court, which found that the decision to exclude undated ballots in a special election in Philadelphia earlier this year violated rights guaranteed to voters by the state constitution.

But for Casey, these votes could prove particularly essential in his long-term efforts to retain the Senate seat he has held since 2007.

Although McCormick is attending an orientation meeting for fresh senators this week, Casey has not yet relented and said he has no plans to do so until all legally cast ballots are counted. With the gap between the candidates now less than 0.5%, the State Department announced a statewide recount on Wednesday.

» READ MORE: The Pennsylvania Senate race between Dave McCormick and Bob Casey will go to a recount. How will this work?

Since Democrats are far more likely than Republicans to vote by mail, Casey will likely benefit most from including absentee ballots that would be rejected due to missing or incorrect dates.

That’s doubly true for many of the counties that voted to include them this year – especially Philadelphia – where Casey outperformed McCormick in the overall vote.

It is unclear how many undated or misdated ballots were submitted by voters statewide for this election. The Department of State earlier this week estimated that about 20,000 absentee ballots remained to be counted statewide while county boards of elections met to decide on various reservations about the votes.

As the Bucks County Board of Elections met earlier this week to decide the fate of approximately 400 undated or misdated ballots in their county, commissioners ignored the county counsel’s advice to throw them out in accordance with recent Pennsylvania Supreme Court rulings.

“I simply cannot vote to reject them,” Commissioner Diane M. Ellis-Marseglia said, citing her hesitance to unnecessarily disenfranchise the district. “I just can’t.”

She and board president Bob Harvie voted to include them.

McCormick’s campaign appealed the decision, suing the Bucks County Court of Common Pleas board on Wednesday evening.

“The Supreme Court of Pennsylvania expressly prohibited such action,” wrote his attorneys Walter Zimolong and Joseph A. Cullen.

McCormick has previously fought to have undated ballots counted during a similarly tight 2022 GOP primary race against Oz.

“The sole basis for disenfranchising these voters is a technical error that is immaterial under both state and federal law,” his lawyers wrote in legal briefs at the time.

On Thursday, Casey’s campaign was quick to respond to what they said was an egregious reversal of McCormick’s decision, calling it “hypocrisy” and “further evidence of his determination to disenfranchise Pennsylvania voters.”

No hearings were scheduled for Thursday afternoon in any of the GOP lawsuits before the Pennsylvania Supreme Court or the Bucks County Court of Common Pleas.

However, McCormick’s campaign emphasized that no matter how future court battles and recounts turned out, they were still confident that he would determine the winner of the race.

“There is one impossible truth in all of this,” said Mark Harris, the campaign’s chief strategist. “When the counting is finished, Dave will have won by tens of thousands of votes. It won’t be close.

Staff writer Fallon Roth contributed to this article.