The state Supreme Court handed Republicans a key victory in the contentious U.S. Senate race, ruling Monday that counties must not count mail-in ballots that arrived in undated or incorrectly dated envelopes.
The court simply ordered counties to comply with its past rulings on the issue.
It was not immediately clear how many votes would be affected or if the ruling could affect the outcome.
As of 5 p.m. Monday, Republican Dave McCormick led three-term U.S. Sen. Robert Casey by 17,700 votes – 3,395,135 to 3,377,435.
The Associated Press has declared McCormick the winner, but Casey has refused to concede, citing tens of thousands of uncounted ballots. Ongoing counting has trimmed McCormick’s lead from about 80,000 votes on Election Day.
In an opinion editorial published Monday by PennLive.com, Casey explained his refusal to concede.
“The answer is simple: Pennsylvanians deserve to have their voices heard, and the worth of someone’s vote is not determined by how long it takes to be counted,” he wrote. “When a Pennsylvanian takes the time to cast a legal vote, often waiting in long lines and taking time away from their work and family, they deserve to have their vote counted, whether it is the first ballot counted or the last.”
Citing the closeness of the race, Casey wrote, “Unlike in past elections, the votes in this election could determine the outcome.”
Decision Desk HQ, which also declared McCormick the winner, reported about 21,000 provision and mail-in ballots still uncounted as of Monday afternoon. Decision Desk is an arm of The Hill, a Washington, D.C. publication that covers Congress.
With that many ballots uncounted, Casey would have to get more than 80% to win. A recount will begin this week, but recounts have never changed the result of a statewide race in the modern era.
The Republican National Committee and the state Republican Party asked the Supreme Court last week to use its “king’s bench” power to enforce the past rulings. They did that after boards of elections in Bucks, Montgomery and Philadelphia decided to count ballots sent in undated or incorrectly dated envelopes, despite past court rulings.
In February 2023, a sharply divided Supreme Court ruled absentee and mail-in ballots must be returned in signed and correctly dated envelopes to count. The court reaffirmed that ruling in another case earlier this month.
In a conference call Monday morning, Republican leaders criticized the boards of elections.
“This is the kind of conduct that undermines faith in elections. When election officials pick and choose at the last-minute which rules to follow and which to ignore, it naturally leads voters to lose trust in the process,” national Republican Party chairman Michael Whatley said.
State Republican Party chairman Lawrence Tabas said the Supreme Court has ruled clearly “that undated and misdated ballots shall not be counted.”
“I call upon Gov. Shapiro to encourage the other counties to follow the Supreme Court's order and direction as well,” Tabas said.
U.S. Rep. Dan Meuser cited comments published Friday in the Philadelphia Inquirer.
The newspaper quoted Bucks County Commissioner Diane M. Ellis-Marseglia as saying “I think we all know that precedent by a court doesn’t matter anymore in this country ... People violate laws any time they want. So, for me, if I violate this law, it’s because I want a court to pay attention. There’s nothing more important than counting votes.”
Meuser called that disturbing, but also pointed to Shapiro’s failure to chime in.
“It is very, very disturbing, very disconcerting to voters and to all of Pennsylvania, and that needs to stop, because this election is over,” he said. “There's no mathematical way to achieve what the Casey folks apparently think they can achieve.”
Asked to react to that, the governor’s office issued a statement from Shapiro, who said the counties had to deal with “a lack of legal clarity” on the ballots “that caused significant confusion and put counties in a challenging legal position.”
“Given this lack of clarity, county officials in each of our 67 counties were damned if they did and damned if they didn’t – likely facing legal action no matter which decision they made on counting,” he said.
Now that court has ruled, Shapiro said he expects all counties to comply.
“As we move forward, I want to be clear: any insinuation that our laws can be ignored or do not matter is irresponsible and does damage to faith in our electoral process,” he said. “The rule of law matters in this Commonwealth, and as I have always said, it is critical for counties and officials in both parties to respect it with both their rhetoric and their actions.”
In a statement, Casey campaign manager Tiernan Donohue later accused McCormick’s campaign of “working to throw out provisional ballots cast by eligible Pennsylvania voters and accepted by county boards.”
“It is wrong, and we will fight it,” Donohue said.
In a statement, McCormick campaign communications director Elizabeth Gregory called the ruling “a massive setback to Sen. Casey’s attempt to count illegal ballots.” She said McCormick looks forward to taking the oath of office.
