The Democratic and Republican parties will drop 20 lawsuits on behalf of their candidates for Pennsylvania’s U.S. Senate seat following incumbent Sen. Bob Casey’s concession Thursday to Sen.-elect Dave McCormick.
Cases filed in more than a dozen counties challenge decisions by boards of elections to count provisional ballots as a result of errors made by voters or board of elections workers.
But because McCormick had a lead of more than 16,000 votes, Casey called McCormick on Thursday evening to congratulate him on his victory. A few hours later, the Pennsylvania Department of State canceled the state recount caused by a narrow margin of less than 0.5% of the vote, claiming it was in the best interest of taxpayers.
The outcome of the cases was decided by over 6,000 votes for Casey or McCormick, with McCormick’s camp arguing that the defective ballots should be thrown out and the Casey campaign arguing that some should be counted.
Although each side had already won decisions, there was no reason to continue fighting and the parties reached an agreement to end the dispute, election attorney Adam Bonin told the Capital-Star on Friday.
Lawyers for the Republican Party did not return calls from Capital-Star on Friday.
“We are thrilled with the victories,” said Bonin, who filed some of the lawsuits on behalf of the Casey campaign and the Democratic Senate Campaign Committee. “There were definitely strong arguments on appeal, but that battle is for another day.”
Meanwhile, voting rights advocates expect renewed efforts in the future to ensure that voters who make a mistake when voting by mail are not disenfranchised.
The Republican National Committee has asked the state Supreme Court to rule on whether requiring a date on absentee ballots is constitutional. Voting rights groups agree the case should be taken to court.
“The one thing that is indisputable in this entire dispute … is that the date is irrelevant,” said Mimi McMkenzie, legal director of the Public Interest Law Center. “It is a remnant of the past that it is still in the electoral code and we should not disenfranchise voters for a meaningless date.”
Pennsylvania’s election code has often been the subject of litigation, but especially since 2020, when Act 77 allowed no-excuse absentee voting for the first time. Counties issued approximately 2.2 million absentee ballots in this election.
Earlier this fall The Supreme Court of Pennsylvania answered one of the questions which emerged with the advent of mail-in voting and stipulated that voters who intended to vote by mail must be able to cast provisional ballots if they learned that their mail-in ballots might be rejected.
Provisional ballots serve as a secure method for voters to ensure their votes are counted if they encounter difficulties, such as uncertainty about whether they are registered or at the correct polling place. A provisional ballot allows a voter to register their votes on Election Day until a decision is made as to whether they are eligible to vote.
While it’s unclear how much the Supreme Court’s decision increased the operate of provisional ballots, their potential to play a decisive role in the Senate race shed airy on process problems they didn’t have in previous elections, Bonin said.
Bonin said the lawsuits fall into three main categories.
Democrats and the Casey campaign argued that voters should not be disenfranchised because of an error by election workers in failing to sign provisional ballot envelopes. The electoral code requires that the envelopes be signed by an electoral judge and the inspector of the party that is in the minority on the electoral commission.
Bonin said that in the cases that ended up in district court, the judges unanimously found that errors by election commission workers were not a reason to disenfranchise voters.
“Would it be nice to take this to the appellate level and get a statewide ruling on this? Yes,” Bonin said. “But if nothing else, it highlights the weakness. Election workers need to understand this.”
Republicans and McCormick’s campaign argued that provisional ballots, where a voter signed the ballot envelope in only one place or failed to place the ballot in an envelope covered by confidentiality, should not be counted.
State Supreme Court ruled in September that the law requires provisional ballot envelopes to be signed twice and election officials must otherwise reject the ballot. Bonin said Democrats believe disenfranchising voters for errors in a process that should be overseen by election officials violates the Due Process Clause of the U.S. Constitution and the Help America Vote Act.
“We believe this is the election commission employee’s fault and the voter should not be penalized for these types of documentation problems,” Bonin said, adding that these arguments could be raised in a future case.
Vic Walczak, legal director of the American Civil Liberties Union of Pennsylvania, said the Pennsylvania Legislature could address these problems by clarifying that such petty errors should not prevent votes from being counted.
“But they didn’t do their job,” Walczak said.
Walczak said that once the election is over, the state Supreme Court should take the opportunity to decide once and for all whether mail-in voters should be required to put a date on their ballot or be disenfranchised.
Since 2020, in many cases, the parties have agreed that the date and time that appears on the ballots when they are received at district election offices, rather than the date entered by voters, is the decisive factor in determining whether a ballot is timely and valid.
Pennsylvania’s intermediate appellate court, the Commonwealth Court, has twice ruled that the date requirement violates the state constitution’s guarantee of the right to vote because it serves no compelling governmental purpose. But the Supreme Court rejected the first ruling on a technicality and has since declined to address the issue, saying changing the rules so close to the election would not risk confusion.
“Now’s the time to do it, right?” Walczak said: “There are no choices. Let’s sort this out for the future.”
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