The Pennsylvania Supreme Court on Monday rebuked Democratic-controlled elections boards that counted undated and misdated mail ballots, siding with Republicans and reiterating that such votes are invalid.
Philadelphia, Montgomery and Bucks counties voted to count hundreds of such ballots in recent days despite previous rulings from the court that they cannot be included in this election.
“It is critical to the rule of law that individual counties and municipalities and their elected and appointed officials, like any other parties, obey orders of this Court,” Justice David Wecht wrote, joined by Justice Sallie Updyke Mundy, in a terse concurring opinion.
The ballots’ relevance has particularly come into focus as Pennsylvania’s Senate race heads to an automatic recount. Republican David McCormick leads by just fewer than 20,000 votes, and Decision Desk HQ, The Hill’s election data partner, named him as the winner last week, but incumbent Sen. Bob Casey (D) has not yet conceded.
In a 4-3 vote, the state’s top court granted Republicans’ request to use the court’s rare King’s Bench authority and immediately intervene to exclude misdated and undated ballots from the count. Casey’s campaign intervened to oppose the effort.
The three dissenters said they would’ve allowed the lower courts to handle Republicans’ challenges in normal course.
The court’s order directs that county elections boards statewide, “including the Boards of Elections in Bucks County, Montgomery County, and Philadelphia County, SHALL COMPLY with the prior rulings of this Court in which we have clarified that mail-in and absentee ballots that fail to comply with the requirements of the Pennsylvania Election Code…. SHALL NOT BE COUNTED for purposes of the election held on November 5, 2024.”
Republicans had also accused Centre County of counting several ballots with invalid or missing dates, but the county disputed the notion in court filings.
In a concurring opinion, three of the court’s seven justices condemned elections officials that voted to count the ballots with date issues.
“I write separately to disabuse local elections officials of the notion that they have the authority to ignore Election Code provisions that they believe are unconstitutional. Only the courts under our charter may declare a statute, or provision thereof, unconstitutional,” wrote Justice Kevin Brobson, joined by Wecht and Mundy.
The three dissenters said the matter hadn’t met the high burden for the court to intervene now, noting challenges mounted by Republicans and McCormick’s campaign were expeditiously proceeding in the lower courts.
“I have far more confidence in our courts of common pleas to apply the law than do some of my colleagues,” Justice Christine Donohue, joined by Chief Justice Debra Todd and Justice David McCaffery, wrote in dissent.
Mail ballots in Pennsylvania have been the subject of frequent litigation in recent years, with enforcement of the statutory requirement that voters date the outer envelope becoming a major battle.
Noting that election officials timestamp mail ballots when they are received, voting rights groups and Democrats have argued the provision is meaningless and also violates the state constitution’s free and equal elections clause.
The Pennsylvania Supreme Court has not definitively resolved the merits of that constitutional question but had repeatedly indicated it was too close to the election to change the rules.
“No more excuses. Election officials in Bucks, Montgomery, Philadelphia, and other counties have absolutely no choice but to reject illegal ballots. We will hold them to it,” Republican National Committee chair Michael Whatley responded to Monday’s ruling on X.
