Pa. Supreme Court forbids counties from counting mail-in ballots with date errors

The Pennsylvania Supreme Court ruled Monday that mail-in ballots in the Nov. 5 election that lacked handwritten dates or were improperly dated on their outer envelopes as required under state law cannot be counted.

The ruling comes as several counties have been tallying those votes.

In a four-page order, the court said all of the state’s 67 counties must follow its prior rulings, and if mail-in ballots fail to comply with Pennsylvania’s election code, they “shall not be counted.”

The phrase in the order — in which the court explicitly called out Bucks, Montgomery and Philadelphia counties — is written in bold, capital letters. The mail-in ballots in question arrived on time but lacked written dates on the outer envelope or had incorrectly written dates.

Those flawed mail-in ballots are at the center of Pennsylvania’s ongoing U.S. Senate race, in which Republican businessman David McCormick leads by more than 17,000 votes over Democratic incumbent Sen. Bob Casey.

As of Monday afternoon, McCormick had 48.8% of the vote to Casey’s 48.6%.

The Associated Press has called the race for McCormick.

Last week, the Casey campaign and the Democratic Senatorial Campaign Committee filed a motion to intervene in the ongoing mail-in ballot date error case, arguing that every vote ought to be counted.

“Sen. Casey is fighting to ensure Pennsylvanians’ voices are heard and to protect their right to participate in our democracy — just like he has done throughout his entire career,” said Casey campaign manager Tiernan Donohue. “Meanwhile, David McCormick and the national Republicans are working to throw out provisional ballots cast by eligible Pennsylvania voters and accepted by county boards. It is wrong and we will fight it.”

Elizabeth Gregory, a spokeswoman for McCormick, called the ruling a “massive setback to Sen. Casey’s attempt to count illegal ballots.

“Bucks County and others blatantly violated the law in an effort to help Sen. Casey,” she said. “Senator-elect McCormick is very pleased with this ruling and looks forward to taking the oath of office in a few short weeks.”

Pennsylvania’s Senate race is headed to a legally mandated recount because the contest is within 0.5 percentage point. The recount will start Wednesday.

Election officials in a handful of counties, including Bucks, Montgomery and Philadelphia, said they would count undated and misdated ballots, leading to lawsuits from the Pennsylvania Republican Party.

“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,” wrote Justice Kevin Brobson. “Only the courts under our charter may declare a statute, or provision thereof, unconstitutional.”

Allegheny County officials have said they will not count mail-in ballots with date errors.

In August, the state Supreme Court voided a Commonwealth Court ruling that the handwritten date requirements violated the state constitution. However, the state Supreme Court made its ruling on technical grounds and later declined to take up the case on its merits.

In September, the issue was brought up again concerning a Philadelphia special election, where Commonwealth Court ruled the contested mail-in ballots could be counted for that race.

The state Supreme Court affirmed Nov. 1 the Commonwealth Court’s decision applied only to the Philadelphia special election, not the general election. But the state Supreme Court again did not address the underlying question of constitutionality.

Republicans had called on the state Supreme Court to declare the date requirement on ballots is mandatory and counties shouldn’t count such ballots that lack proper handwritten dates in this election or any in the future in order to comply with state statutes.

Gov. Josh Shapiro issued a statement Monday saying he’s glad the issue is resolved.

“The Department of State had advised counties repeatedly of their duty to segregate challenged provisional ballots and undated ballots in anticipation of a ruling by the court,” Shapiro said. “I expect all county election officials to adhere to this ruling and all the applicable laws governing our elections.”