Legal battle over Pennsylvania mail ballots with date issues returns as Senate recount begins

Republicans asked the Pennsylvania Supreme Court on Thursday to again ensure mail ballots with a missing or improper date are not counted in this year’s election, accusing multiple counties of ignoring the court’s commands.

In the lead-up to Election Day, the state’s top court issued multiple orders declaring the handwritten date requirement must be enforced, but it has not addressed claims from voting rights groups that the requirement violates the Pennsylvania Constitution’s free and equal elections clause.

Several county boards this week moved forward with counting ballots with date problems, leading to a new round of postelection litigation over the hotly contested issue.

At stake are at least hundreds of ballots, which could play a sizable role as the close contest between incumbent Sen. Bob Casey (D-Pa.) and challenger David McCormick heads to an automatic recount. McCormick leads by roughly 25,000 votes.

McCormick declared victory and has been in Washington this week for freshmen orientation. Decision Desk HQ, The Hill's partner, projected McCormick as the winner Thursday afternoon.

The Republican National Committee (RNC) and its state arm on Thursday asked the Pennsylvania Supreme Court to use its King Bench power to immediately take up the date requirement issue and reaffirm no county can count the challenged ballots — specifically taking aim at Philadelphia, Bucks County and Centre County.

“[V]arious county boards are seeking to alter the rules of the election at the thirteenth hour,” Republicans wrote in its application. “By counting undated and misdated mail ballots for the 2024 General Election, they are disobeying this Court’s commands many times over. At best, they are confused; at worst, they are openly defying the authority of this Court.”

McCormick was not part of the request, but he has joined the party in its lawsuit filed in a trial court challenging Bucks County’s decision to count ballots with improper or missing dates.

Casey's campaign noted that McCormick supported counting ballots with date issues during his first Senate run when his primary headed to a recount in 2022.

“David McCormick’s hypocritical reversal on undated mail ballots is further proof of his determination to disenfranchise Pennsylvania voters while counties continue to count votes in this razor-thin election. Senator Casey’s priority continues to be making sure Pennsylvanians’ voices are heard as our democratic process unfolds,” said Tiernan Donohue, Casey’s campaign manager, in a statement.

Matt Gruda, McCormick's campaign manager, has meanwhile accused Casey of "trying to illegally count UNREGISTERED voters" as his campaign challenges rejections of certain provisional ballots.

Republicans' lawsuits come after several counties this week met to adjudicate ballot issues.

Bucks County, a critical area for both campaigns that is located north of Philadelphia, on Tuesday voted 2-1 along party lines to count just over 400 timely ballots with date issues.

Bob Harvie, a Democrat who serves as the county commissioner board's vice-chair, said it was a "pretty stupid thing" not to count them, since the mail ballots are timestamped when received.

"We're going to get sued either way; I'd rather be on the side of counting ballots than not counting them," Harvie said at Tuesday's meeting.

Democrat Diane Ellis-Marseglia, the board’s chair, said, “I Can’t vote to reject them. I just can’t.”

Republican commissioner Gene DiGirolamo, who serves as secretary, voted against counting the ballots.

A similar fallout took place on Wednesday at a meeting of the Philadelphia City Commissioners, which also voted 2-1 along party lines to count hundreds of ballots with date issues.

The new cases are the latest in what has been a heavily litigated election in Pennsylvania.

McCormick last week filed two emergency motions related to provisional ballot challenges, but a judge denied one and the candidate later withdrew the other.

Updated 2:58 p.m.