In an election defined in part by a tsunami of litigation before polls even opened, few states saw as much legal haggling over which ballots should count as Pennsylvania.
The polls have long since closed, yet a new round of litigation is flooding the recount battle between Senator Bob Casey, a Democrat, and Dave McCormick, his Republican challenger, who currently leads by around 21,000 votes, a margin rarely overtaken by a simple recount.
The landscape, however, is different. In at least four counties — Bucks, Philadelphia, Centre and Montgomery — local election officials are acting in open defiance of a ruling from the Pennsylvania Supreme Court that arrived weeks before the election. The court found that mail ballots that are missing the date on the outer envelope, or have the wrong date, cannot be counted for this election.
The Bucks County election commission felt differently.
“It is a pretty stupid thing to not count someone’s vote simply because they didn’t date an envelope for a ballot,” said Robert Harvie Jr., the chairman of the board and a Democrat, during a meeting on Tuesday where the board voted 2-1 to count 405 ballots with date errors on the envelope. He added that election officials know when ballots were printed for voters, making the outer envelope date requirement meaningless.
“The law needs to be changed,” Mr. Harvie said.
The commissioners were advised that they were likely to be sued no matter how they ruled. “So we’re going to get sued either way, I’d rather be on the side of counting ballots than not counting them,” Mr. Harvie said.
Almost immediately, the McCormick campaign sued the county, demanding it obey the Pennsylvania Supreme Court guidance and not count the ballots, even though the ballots were unlikely to affect his outcome. The Republican National Committee also moved to intervene.
Throughout this year, election officials in Pennsylvania, a key battleground with 19 Electoral College votes and a critical Senate race, had to navigate judicial whiplash, with envelopes missing the date, ballots arriving late and whether election officials could permit voters to fix any issues with their mail ballots.
The pre-election period was also marked by growing concerns of rogue election officials moving outside the law, either refusing to certify an election or taking other actions in open defiance of either state law or court orders.
In Pennsylvania alone, three counties — Lancaster, Fayette, and Berks — refused to certify their primary results in 2022. But after a sweeping victory by President-elect Donald J. Trump, most of these concerns about rogue officials defying the law and refusing certification faded.
But the decisions by the Bucks County election commission, and similar votes by Philadelphia, Montgomery and Centre commissioners this week, have thrust the role of local election officials in post-election decisions and certification back into the spotlight. In Philadelphia and Montgomery Counties, registered Democrats heavily outnumber Republicans; Bucks County has more registered Republican voters than Democrats; and Centre County is relatively even.
On Friday, the McCormick campaign also sued the Philadelphia County commission for counting 607 ballots with misdated or undated ballot return envelopes. The commission had decided, in a 2-1 vote, to count the ballots in a meeting on Wednesday.
Lisa Deeley, one of the Democratic commissioners on the Philadelphia board, said before her vote that she felt a local city court had ruled that the ballots should count, and that the State Supreme Court did not reject that decision. “We are the only county of the 67 that has received instructions from our Court of Common Pleas to count these ballots,” Ms. Deeley said.
In an interview, Seth Bluestein, the Republican commissioner on the county commission, expressed sympathy that ballots could be disqualified for such a trivial reason, but he reiterated that the State Supreme Court had already settled the issue.
“Even though the commissioners and the boards of elections have some discretion in how they vote, when you have something as explicit as an order from the Pennsylvania Supreme Court, we need to follow that,” Mr. Bluestein said.
The Democratic-led commission in Montgomery County, a large suburban county just outside of Philadelphia, also voted 2-1 on Thursday to count ballots with date omissions or errors on the outer envelope.
“The court has not yet reached the merits of whether the dating requirement in the election code is in fact unconstitutional,” said Neil Makhija, the Democratic chair of the Montgomery County election board, in an interview. “They explicitly say they did not reach the merits, and as a county official and voter, frankly I cannot make a decision to throw out ballots that I know were cast by lawfully eligible registered voters over a requirement that is immaterial and serves no purpose.”
Al Schmidt, Pennsylvania’s secretary of state, a Republican, declined to comment on the actions taken by the counties. A spokesman for his office referred questions to guidance on mail ballot procedures published in September.
Two days after voting to count the ballots with misdated envelopes, Diane M. Ellis-Marseglia, another Democratic member of the Bucks County board, expressed further frustration with recent court rulings.
“I think we all know that precedent by a court doesn’t matter anymore in this country,” Ms. Ellis-Marseglia said as she voted to count provisional ballots previously barred by court order, where voters did not sign in one of two required boxes. “People violate laws any time they want.”
She hinted that her decision was an attempt to spur renewed consideration by the State Supreme Court, which did not rule on the merits of the decision to not count absentee ballots.
“So, for me, if I violate this law, it’s because I want a court to pay attention,” Ms. Ellis-Marseglia said. “There’s nothing more important than counting votes.”
The post In Pennsylvania, the Election Litigation Continues, With a Twist appeared first on New York Times.
