Pa. courts get lawsuits over ballot-counting as Senate race heads toward recount

Republicans went to court in Pennsylvania on Thursday amid vote counting in the U.S. Senate election between Democratic Sen. Bob Casey and Republican David McCormick, as the campaigns prepare for a recount and press counties for favorable ballot-counting decisions.

The lawsuits ask courts not to allow counties to count mail-in ballots where the voter didn’t write a date on the return envelope — as required by law — or wrote an incorrect date. The GOP suits could be among many before the last vote in the Senate race is counted, especially with the contest headed toward a state-mandated recount.

The Associated Press called the race for McCormick last week, concluding that not enough ballots remained to be counted in areas Casey was winning for him to take the lead. However, NBC News has not yet declared a winner calling the race "too close to call."

As of Friday morning, McCormick led by about 24,000 votes out of more than 6.9 million ballots counted — inside the 0.5% margin threshold to trigger an automatic statewide recount under Pennsylvania law.

The national and state Republican parties asked the state Supreme Court to bar counties from counting the ballots, saying those decisions violate both the court's recent orders and its precedent in upholding the requirement in state law.

In a statement, the Pennsylvania Republican Party chair, Lawrence Tabas, said, “What's taking place in these counties is absolute lawlessness.”

Democratic-majority election boards in Montgomery County, Philadelphia, Bucks County and Centre County voted to count the ballots.

Democrats cast more mail-in ballots than Republicans, and Democrats in the past have supported counting ballots that trip over what they view as meaningless clerical requirements in state law.

“We’re talking about constitutional rights and I cannot take an action to throw out someone's ballot that is validly cast, otherwise, over an issue that we know ... is immaterial,” Montgomery County Commissioner Neil Makhija, a Democrat, said during a Thursday meeting in voting to count 501 such ballots.

McCormick's campaign sued Bucks County separately to contest the county election board's decision to count 405 such ballots. Lawsuits were forthcoming against Center County and Philadelphia on Thursday evening, Republican lawyers said.

It is the opposite of the position that McCormick took in court in 2022 in his failed eleventh-hour bid to close the gap in votes with celebrity heart surgeon Dr. Mehmet Oz in Pennsylvania’s Republican primary contest for U.S. Senate.

In that case, McCormick's lawyer told a state judge that the object of Pennsylvania’s election law is to let people vote, “not to play games of ‘gotcha’ with them.”

Statewide, the number of mail-in ballots with wrong or missing dates on the return envelope could be in the thousands, although most counties haven’t moved to count them.

Lower courts have repeatedly deemed it unconstitutional or illegal to throw out such ballots. But higher courts — including the state Supreme Court most recently on Nov. 1 — have blocked those decisions from taking effect.

Counties, meanwhile, continued Thursday processing tens of thousands of provisional ballots and hearing challenges to some of them by lawyers for Casey, McCormick and the state parties. A provisional ballot is typically cast at a polling place on Election Day and is separated from regular ballots in cases when elections workers need more time to determine a voter’s eligibility to vote.

On Wednesday, Democratic Gov. Josh Shapiro’s top election official, Secretary of State Al Schmidt, a Republican, announced that preliminary results had triggered a legally required statewide recount and said counties had reported just over 80,000 uncounted provisional, mail-in and absentee ballots.

Counties must finish the recount by noon on Nov. 26. It largely involves running paper ballots through high-speed scanners, a process that former election officials say might not change the outcome by more than a few hundred votes.

Meanwhile, both Casey and McCormick were in Washington this week. Casey was attending official Senate sessions and casting floor votes while McCormick attended Senate orientation and caucus meetings to pick a new leader after Republicans won control of the U.S. Senate in last week’s election that saw Donald Trump win the White House.