The Senate race between Casey and McCormick hinges on district battles

It’s been a week since the Associated Press reported on the tight Pennsylvania Senate race for Dave McCormick, concluding that the Republican had closed off any viable path for Democratic Sen. Bob Casey to still claim victory.

But their campaigns continue to fight in counties and court.

With certification deadlines looming and a statewide recount looming, candidates are in the trenches in county-by-county battles over diminutive tranches of contested provisional ballots left to be counted statewide. Statewide, officials estimated there were fewer than 80,000 ballots cast as of Thursday, or less than 2% of the vote.

For Casey, who has resisted conceding while the remaining votes are counted, these diminutive county-level fights — sometimes lasting just dozens of ballots — represent his last, best chance to make up for a deficit in the race of about 25,000 votes.

While closing the gap remains a distant prospect, Casey’s insistence has reignited long-running disputes between Republicans and Democrats over which votes should be counted and which should be discarded, and has prompted some counties to openly defy recent Pennsylvania Supreme Court rulings.

“I think we all know that the precedent set by the court is no longer relevant in this country,” Bucks County Commissioner Diane Ellis-Marseglia, a Democrat, said during Thursday’s vote to count some defective provisional ballots that had previously been banned by court order, where the voter has not signed in one of the two necessary fields.

“People break the law whenever they want,” she said. “So for me, the violation of this law is because I want the court to pay attention to it. There is nothing more important than counting votes.”

McCormick and his GOP allies are fighting back, filing two lawsuits Thursday challenging recent decisions by Philadelphia, Bucks, Montgomery and Center counties to include court-ordered undated absentee ballots in their counts.

But as the war continues, Republicans are expressing confidence in the outcome and increasingly calling for Casey to throw in the towel.

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

Temporary fighting

So far, disputes over the remaining votes fall into two categories: Democratic efforts to count as many of the contested provisional ballots as possible and decisions electoral commissions in some Democratic-leaning counties to include undated absentee ballots in their final tallies, despite multiple court orders to reject them this year.

During more than 10 hours of public meetings in Philadelphia counties Thursday, attorneys for McCormick and Casey argued over whether to count or discard batches of provisional ballots with apparent procedural errors, such as missing signatures or privacy envelopes, or those cast by voters whose eligibility was in question.

This meticulous process resulted in board members sometimes spending more than 30 minutes debating the fate of small handfuls of ballots.

In Montgomery County, Democrats insisted that the board in the deep blue county accept about 180 provisional ballots without secrecy envelopes because several came from the same precincts, suggesting an error by board of elections workers.

Board Chairman Neil Makhija, a Democrat, voted to accept ballots to enfranchise more voters. But his running mate, Democrat Jamila Winder, and Republican Tom DiBello voted against him, based on advice from district attorneys that the law clearly states those ballots should be thrown out.

In Bucks County, campaigns eliminated voters who failed to sign their provisional ballots in one or both of the two required places, causing Marseglia’s ballot to include those who were missing just one signature, despite a Pennsylvania Supreme Court ruling earlier this year that these ballots should be thrown away.

“It’s not always easy to determine when a vote was legally cast and when there is a gray area,” said Bob Harvie, who, like Marseglia, is a member of the Democratic Party’s board of directors.

Chester County Board members were wondering what to do with voters registered in other counties who mistakenly returned provisional ballots in Chester.

And in Delaware County, the board of elections rejected the Casey campaign’s efforts to include the votes of 114 voters who the county said were not on the official voter rolls. The campaign argued that these voters were in fact registered, but provided no definitive evidence.

Similar decisions are expected to be made by counties across the Commonwealth in the next few days. A meeting in Philadelphia to decide on provisional ballots will be held on Friday.

And these meetings are not the end of the road. The parties will have the opportunity to appeal against any decisions of the electoral commission to the Common Court.

Overall, Pennsylvania Democrats say their goal is to count as many provisional ballots as possible, including those cast by voters who were purged from the voter rolls and voters registered in another county.

“The goal of the Democratic Party is to count votes, not count votes,” said Bucks County Democratic attorney Dawn Burke On Thursday, the Electoral Commission.

Meanwhile, Republicans sought to exclude several categories of provisional ballots, including those cast by voters who had previously submitted absentee ballots that were rejected due to procedural flaws. They found particularly egregious efforts by Democrats to defend voters who cast provisional ballots in counties where they appeared not to be registered.

“We think this is a completely extreme argument, outside the mainstream,” said James Fitzpatrick, a lawyer for McCormick’s campaign.

Undated ballots

Meanwhile, there is a separate dispute over the fate of some of the state’s most contentious ballots – absentee ballots submitted without a date or with the wrong date written on the outer envelope.

Despite two previous rulings by the Pennsylvania Supreme Court that ballots should be rejected in this year’s election, officials in Bucks, Montgomery, Philadelphia and Center counties opposed the order and voted to uphold them in recent days.

While these openly defiant decisions will almost certainly be overturned in court, they continue a recent pattern of majority commissioners in all four counties 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 argued that the dates serve no meaningful purpose because election officials do not 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 Commonwealth Court ruling that found that the decision to exclude undated ballots in Philadelphia’s special election earlier this year violated rights guaranteed to voters by the state constitution.

“The data doesn’t give us anything we don’t already know,” said Makhija, chairman of the Montgomery County Board. “I cannot vote without including a vote that we know was properly cast.”

For Casey, these counties’ decision to include undated ballots in their tallies could prove particularly significant.

Undated ballots likely represent the largest tranche of ballots for which the fate remains unresolved.

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

This is doubly true in many of the counties that voted to include them – particularly Philadelphia – where he outperformed McCormick in the overall vote.

Future elections

Whether ongoing disputes over provisional and undated ballots change the outcome of the McCormick-Casey race, upcoming court battles could determine which votes will be counted in future elections. In many cases, this is a clear goal.

The Pennsylvania Supreme Court has not yet ruled on the constitutional argument behind the undated ballots issue, but the justices will now have the opportunity to do so thanks to lawsuits filed by the Republican National Committee and the Pennsylvania GOP.

They also asked the court to issue an emergency injunction barring any county from including undated ballots in this year’s vote count. McCormick’s campaign endorsed the suits, a shift from a candidate who fought to include undated ballots in 2022 during a tight race in the GOP Senate primary against Mehmet Oz.

Meanwhile, in their challenges, Republicans also sought to prolong the dispute, which earlier this year reached the U.S. Supreme Court.

They have consistently urged counties to reject provisional ballots cast by voters who previously submitted rejected absentee ballots, which should be included in a category the Pennsylvania Supreme Court ruled last month.

The GOP appealed that decision to the U.S. Supreme Court, which declined to take up the case, even though the court’s three conservative justices — Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch — signaled they would be open to hearing. further arguments on this matter at a later date.

“We have to preserve [our objection] as this decision is being further appealed,” GOP attorney Brett Henry told Montgomery County officials on Thursday, questioning the inclusion of these ballots in the tally.

But as the decision dragged on and county meetings continued, Casey gave no indication he intended to back down.

“Senator Casey’s priority,” his campaign said in a statement Thursday, “continues to ensure that the voices of Pennsylvanians are heard as our democratic process advances.”

Adjustment: An earlier version of this story incorrectly reported Bucks County Commissioner Diane Ellis-Marseglia’s vote. She voted to count provisional ballots that were missing one of the two required signatures despite a court order, but not those that were missing both. That version also incorrectly reported the number of provisional ballots that were missing the secrecy envelopes that Democrats were urging the Montgomery County Board of Elections to accept. The correct number is 180.