Dave McCormick sues Philadelphia election officials over their decision to count undated ballots despite court orders

Republican Senate candidate Dave McCormick sued the Philadelphia Board of Commissioners on Friday. It is the latest in a series of legal challenges he has filed against election officials who voted to count undated or misdated absentee ballots in defiance of orders from the Pennsylvania Supreme Court.

The Philadelphia board, led by Chairman Omar Sabir, a Democrat, decided at Wednesday’s meeting to include on the ballot more than 600 ballots submitted by voters who did not date the outer envelopes or dated them incorrectly, as required by state law.

While Democrats and voting rights groups have long argued that the date is irrelevant and not used by election officials to determine whether a ballot was submitted on time, the Pennsylvania Supreme Court sent a clear message to counties in two decisions this fall: In votes should not be counted in this election.

Philadelphia, like many other counties that voted to count them anyway — including Bucks, Montgomery and Center counties — defends the decision, arguing that excluding these ballots unfairly disenfranchises tens of thousands of otherwise eligible voters each year.

They also point to a recent Commonwealth Court ruling that found that rejecting undated and misdated ballots was a violation of rights guaranteed to voters by the state constitution.

» READ MORE: As Casey remains in the Senate race, he is pinning his hopes on diminutive county-level fights over contested votes

Shortly thereafter, the Supreme Court issued an order clarifying the lower court’s ruling and ordering it not to apply to the 2024 elections. The judges have not yet considered this issue on its merits.

In his lawsuit in Philadelphia on Friday, McCormick — joined by the Republican National Committee and the Pennsylvania GOP — asked the Court of Common Pleas to overturn the commission’s decision and remove the undated and misdated ballots from the final vote count in Philadelphia.

“In what can only be understood as a misleading or seditious act, commissioners voted to count 607 absentee ballots that did not meet the date requirements,” said McCormick attorney George Bochetto. “The Pennsylvania Supreme Court expressly prohibited such action.”

The filing comes a day after McCormick filed a similar lawsuit against the Bucks County Board of Elections and the Republican National Committee asked the state Supreme Court to repeat its earlier orders in all 67 Pennsylvania counties.

In yet another openly opposed vote to include a separate batch of provisional ballots deemed invalid by the Supreme Court, Bucks County Commissioner Diane Ellis-Marseglia on Thursday expressed hope that a message could be sent.

“I think we all know that the precedent set by the court is no longer relevant in this country,” she said. “People break the law whenever they want. So in my opinion, if I violate this law, it is because I want the court to pay attention to it. There is nothing more important than counting votes.”

The county’s rebellion came after a statewide recount in a tight race between McCormick and incumbent Democrat Bob Casey – a contest where the candidates were separated by less than 24,000 votes on Friday. Despite the ongoing statistics, the Associated Press called McCormick’s race last week, concluding that Casey no longer had a viable path to victory.

While none of the counties that voted to count undated absentee ballots framed their votes in the context of the ongoing Senate race and instead cited broader concerns about voter disenfranchisement, their decisions will likely benefit Casey.

Democrats are much more likely to vote by mail than Republicans. This is doubly true in many counties that voted to include undated and misdated ballots in the final results – especially in Philadelphia, where Casey received a total of more than four times as many votes as McCormick.

Still, McCormick’s efforts to exclude undated ballots represent a reversal of his position two years ago, when he urged courts to recount them as he was in a tight GOP primary with then-opponent Mehmet Oz.