Bye. Supreme Court again bans counting of undated absentee ballots amid ongoing suspension of U.S. Senate race

The Pennsylvania Supreme Court issued a ruling Monday reiterating its previous position that undated or misdated absentee ballots should not be counted in the 2024 election, dealing a blow to Democratic U.S. Sen. Bob Casey’s hopes for a recount votes and initiating legal proceedings will facilitate him overcome difficulties than a 15,000-vote deficit to Republican Dave McCormick.

The 4-3 ruling, sought by the GOP and opposed by Casey’s campaign, followed actions by election officials in Democratic-controlled counties – including Philadelphia, Bucks and Montgomery – to count ballots even though the Supreme Court ordered them to exclude these votes at the beginning of the year. The ruling applies to all counties.

» READ MORE: Undated absentee ballots will not be counted in next week’s election, the Pennsylvania Supreme Court has ruled

Democrats in these and other counties have called for mail-in ballots to be included with flaws related to the dates voters must write on them because election administrators do not utilize the dates to determine whether the ballots are legitimate. Instead, they only count ballots received between the time the ballots are distributed and Election Day, making it impossible to count a vote outside of that time frame, regardless of the date a voter writes on the ballot.

Republicans argued that those votes should be excluded from the count because state law requires voters to date their absentee ballots. McCormick’s campaign joined the GOP lawsuit after it was filed.

While the ruling resolves how these types of ballots will be treated this year, the longer legal battle may not be over yet because the court has not yet weighed in on the pivotal issue of whether discarding undated ballots because of what Democrats describe as technical detail, constitutes a violation of the rights guaranteed to voters by the state constitution.

In a ruling issued shortly before Election Day, the Commonwealth Court of Pennsylvania found that it did, even though the case involved a special election held in Philadelphia earlier this year. The state Supreme Court stayed the lower court’s decision ahead of Election Day, saying it was too close to the Nov. 5 vote to make any last-minute changes to vote-counting rules.

In Monday’s majority decision, Democratic Justices David Wecht and Kevin Dougherty were joined by Republican Justices Kevin Brobson and Sallie Updyke Mundy. Democratic Justices Debra Todd, Christine Donohue and Daniel McCaffery dissented.

In a concurring opinion, Brobson said it was up to the courts to determine the constitutionality of state elections and that he wanted to “dissuade local election officials that they have the right to ignore provisions of the Election Code that they believe are unconstitutional.”

Wecht added in another sentence: “It is critical to the rule of law that individual counties and municipalities and their elected and appointed officials, like other parties, follow the Court’s orders.”

The total number of ballots in question is likely well under 10,000 and would not be enough to eliminate Casey’s deficit on its own. But the three-term incumbent is also in a legal dispute with McCormick’s team over how various counties handle certain categories of provisional ballots across the state.

The Associated Press called the race for McCormick, but Casey refused to concede.

Casey’s campaign manager, Tiernan Donohue, said Monday that the Democrat wants to make sure all legal votes are counted, which is why he opposes the McCormick campaign’s efforts to “disenfranchise” Pennsylvanians.

“Senator Casey is fighting to make Pennsylvanians’ voices heard and to protect their right to participate in our democracy – as he has done throughout his career,” said Tiernan Donohue, Casey’s campaign manager. “Meanwhile, David McCormick and national Republicans are working to throw out provisional ballots cast by eligible Pennsylvania voters and approved by county boards.“

McCormick spokeswoman Elizabeth Gregory called the decision “a major setback for Senator Casey’s attempt to count illegal ballots.”

“Bucks County and others have flagrantly violated the law in trying to help Senator Casey,” Gregory said. “Senator-elect McCormick is very pleased with this ruling and looks forward to being sworn in in a few short weeks.”

Commissioner Bucks’ comments became a lightning rod

Bucks County Commissioner Diane Ellis-Marseglia has become the target of GOP ire over the issue of counting undated absentee ballots, saying: “In my case, if I violate this law, it’s because I want the court to drew attention to it.”

Chris LaCivita, President-elect Donald Trump’s campaign manager, even said on Monday that Ellis-Marseglia and other Bucks County commissioners “will go to jail” for defying the Supreme Court.

» READ MORE: Trump campaign manager Chris LaCivita suggests Bucks County commissioners ‘will go to jail’ for counting undated absentee ballots

Ellis-Marseglia said Monday she was glad the court had clarified the issue.

“This is what I was hoping for, for the court to speak out and give us clarity,” Ellis-Marseglia said. “We were in limbo and now we have full clarity.”

Ellis-Marseglia said the backlash against her was “a misinterpretation on my part of a poorly worded statement, but completely taken out of context.”

“I’m sorry for all the confusion and confusion this has caused, and I’m glad that because of the ruling, we’re where we are today,” Marseglia said.

Gov. Josh Shapiro, a Democrat, broke his silence on the Senate recount issues after Monday’s ruling and joined in criticizing Marseglia-Ellis and other county officials who defied the court.

“Any insinuation that our rights can be ignored or that they don’t matter is irresponsible and undermines faith in our electoral process,” Shapiro said. “It is critical that counties and officials on both sides honor this issue in both their rhetoric and actions.”

Shapiro, a former Montgomery County commissioner, said counties are “damned if they did and damned if they don’t count” undated ballots because of the state Legislature’s failure to address problems with state election law.

Philadelphia city commissioners voted 2-1 to count the undated absentee ballots, with Seth Bluestein, the lone Republican, voting no. Commissioners Chairman Omar Sabir could not immediately be reached for comment on Monday.

Commissioner Lisa Deeley said in a statement that she was “deeply disappointed” that the court still has not resolved the fundamental question of whether it is unconstitutional to disenfranchise a voter for having the wrong date on the ballot envelope.

“This question remains an open question,” she said. “I will continue to fight through every viable legal avenue to ensure we enfranchise, not disenfranchise, eligible voters.”

Other fronts of the legal battle

The debate over undated absentee ballots was just one of several legal fronts on which the Casey and McCormick campaigns were at odds.

Over the weekend, members of McCormick’s campaign filed lawsuits challenging the inclusion of more than 1,600 provisional ballots in Philadelphia, Montgomery, Bucks and Delaware counties.

Provisional ballots are paper ballots cast by voters on Election Day when election workers cannot confirm that voters are eligible to vote in the precincts where they show up.

After Election Day, county election officials conduct provisional ballots to determine whether votes should be excluded, such as if a person was not a registered voter, or whether they should be counted, such as someone who registered on time and whose name was it has not yet appeared in the state database.

As with absentee ballots, campaigns are fighting over technical details, including whether county election judges and minority inspectors signed the ballots.

In some cases, Democrats argue that legal ballots could be disqualified because of an election board employee’s error. Republicans generally support a legal interpretation of election laws, arguing that ballots with defects should be excluded regardless of how the errors occurred.

Authors Jeremy Roebuck and Katie Bernard contributed to this article.