Battle over Pa. mail ballots is latest example of disputes over election rules

The recount underway in Pennsylvania's U.S. Senate race marks the end of a chaotic post-election period that has become the latest example of how disputed election rules can expose weak points in a core function of American democracy.

The ballot-counting process in the race between incumbent Democratic Sen. Bob Casey and Republican David McCormick has become a spectacle of hours-long election board meetings, social media outrage, lawsuits and accusations that some county officials are openly flouting the law.

The Associated Press called the race for McCormick on Nov. 7, concluding that not enough ballots remained to be counted in areas Casey was winning for him to take the lead. NBC News has yet to call the race due to it being so close with ballots still outstanding.

As the race headed toward a recount, which must be concluded by next Tuesday, Republicans have been claiming that Democrats are trying to steal McCormick’s seat by counting “illegal votes.” Casey’s campaign has said Republicans are trying to block enough votes to prevent him from pulling ahead and winning.

A big part of the dispute has centered around the date requirement on the return envelope that contains a mail-in ballot.

Republicans say state law and court precedent is clear and that mail ballots must be discarded if their envelopes don't meet the criteria. Democrats insist that ballots shouldn't be tossed out because of what they call technicalities.

Several Democratic-controlled county election boards have been counting mail-in ballots in which the voter either wrote the wrong date on the return envelope or didn’t write one at all, despite the state Supreme Court saying just days before the election that such ballots shouldn’t be counted.

On Monday, the Democratic-majority high court reasserted its authority, ruling 4-3 to override active litigation in county courts and order local election boards to obey prior rulings that said such ballots cannot be added to the tally.

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

Some Democrats had said the issue had been a legal gray area before Monday’s ruling. Democratic-majority election boards in Montgomery County, Philadelphia and Bucks County had voted to count ballots that lacked a correct date, while Republicans had said including a date is a critical element of ballot security.

Omar Sabir, the chairman of Philadelphia’s election board, pointed out that a county judge had recently ordered the board to count such ballots in a lawsuit stemming from a September special election.

“I think we as commissioners have discretion to decide which ballots can count, and that’s our right under Pennsylvania statute,” Sabir said Tuesday.

But it was a statement from a Democratic commissioner in Bucks County, a heavily populated political swing county just north of Philadelphia, that ignited social media outrage and threats of legal retaliation from Republicans.

In a meeting last week, Bucks County Commissioner Diane Ellis-Marseglia, a Democrat, voted to count provisional ballots that were missing one of two required voter signatures. She did so after being told by a county attorney that the state Supreme Court had already ruled that such ballots can't be counted.

“We all know that precedent by a court doesn’t matter anymore in this country and people violate laws any time they want," she said. “So for me, if I violate this law, it’s because I want a court to pay attention to it. There is nothing more important than counting votes."

The video of her statement spread quickly among conservatives, often wrongly portraying it as justifying a separate vote by the Bucks County election board to count mail ballots that arrived at local election offices in undated or misdated envelopes.

“This is a BLATANT violation of the law and we intend to fight it every step of the way,” Lara Trump, President-elect Donald Trump’s daughter-in-law and co-chair of the RNC, wrote in a post on X that received 1.2 million views.

Ellis-Marseglia didn’t return a call to clarify what she meant. But the county board chair, Democrat Bob Harvie, said in a statement that commissioners had voted to protect the rights of voters — not sway an election.

The controversy over the decisions by some Democrats to take actions that appeared to contradict Pennsylvania law evoked similar disputes in several other states over the role of local election boards in certifying results. Some Republicans on those boards in recent years have voted against certification without any evidence of problems or wrongdoing, and did so despite their duty under state law.

The attacks on certification begun in 2020 by then-President Donald Trump and his allies raised concerns that partisans on local election boards could essentially block the will of the voters without justification. The moves prompted several Democratic-led states to pass laws clarifying the process.

In Pennsylvania, Republicans were quick to criticize local Democrats who voted to accept the mailed ballots that came in undated or wrongly dated envelopes. Republican National Committee chairman Michael Whatley called it “corrupt and despicable.”

“This is the kind of conduct that undermines faith in elections,” Whatley told reporters on a conference call. “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.”

Asked whether he thinks some county officials could face legal consequences, Whatley said Republicans were exploring options and would “pursue this to the fullest extent that we can.”

Even if the ballot-counting process this year is chaotic, it could produce a lasting result.

The legal challenges could lead to court decisions that dictate in future elections which ballots can and can't be tallied, said Jeff Reber, a Republican who chairs the elections reform committee for the statewide association representing county commissioners.

“No one thinks the recount is going to change the outcome of the election,” he said. "The real battle is which ballots will be counted because that could be a precedent-setting decision."