Pa. Senate contest heads toward recount, and possibly litigation

The U.S. Senate election in Pennsylvania between Democratic incumbent Sen. Bob Casey and Republican David McCormick is headed for a statewide recount, as counties continued Wednesday to sort through outstanding ballots and the campaigns jousted over which ones should count.

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."

A noon deadline passed Wednesday for Casey to waive his right to a statewide recount and 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.

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.

Counties must begin the recount no later than Nov. 20 and must finish 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.

”It is an infinitesimal number, compared to the overall vote totals," said Jeff Greenburg, a former Mercer County elections director.

Meanwhile, McCormick was in Washington this week, attending 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.

Casey hasn't conceded and, while Republicans pressure him on social media, his campaign manager said in a statement Wednesday that “McCormick and his allies are trying to disenfranchise Pennsylvania voters.”

Adam Bonin, a lawyer representing the Casey campaign in Philadelphia, said Republicans were aggressively and systematically challenging the provisional ballots of registered Democrats, delaying the vote counting process.

“What we are seeing this year is more organized, more disciplined, more directed and more comprehensive than what we saw in 2020,” Bonin said.

McCormick's campaign consultant, Mark Harris, said large Democratic-controlled counties were dragging out the process by not adding the results of processed ballots to vote totals.

The McCormick campaign was challenging provisional ballots that it is allowed to challenge under the law, Harris said.

“This is clearly an effort to use lawfare to chip away at our lead,” Harris said. “This is not going to work. Dave McCormick is the senator-elect and will be the senator.”

Counties, meanwhile, were busy Wednesday 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.

Litigation is possible. For instance, Bucks County's Democratic-majority election board voted to count more than 400 mail-in ballots that lack a correct handwritten date on the outer envelope — something that Republicans are challenging and have opposed repeatedly in court.

Bucks County's decision is in line with various decisions in state and federal courts that have 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, with litigation still pending.