By Peter Hall | Pennsylvania Capital-Star
The Democratic and Republican parties will withdraw 20 lawsuits on behalf of their candidates for Pennsylvania’s U.S. Senate seat following incumbent Sen. Bob Casey’s concession Thursday to Senator-elect Dave McCormick.
Filed in more than a dozen counties, the cases challenged decisions by boards of election on whether to count provisional ballots with mistakes made by voters or poll workers.
But with McCormick more than 16,000 votes ahead, Casey on Thursday evening called McCormick to congratulate him on the win. Hours later, the Pennsylvania Department of State called off a statewide recount triggered by the narrow margin of less than 0.5% of the vote, saying it was in the best interest of taxpayers.
More than 6,000 votes for Casey or McCormick hung on the outcome of the cases, with the McCormick camp arguing flawed ballots should be tossed and the Casey campaign arguing that some should be counted.
Although each side had already won decisions, there was no reason to keep fighting and the parties reached mutual agreement to end the litigation, election lawyer Adam Bonin told the Capital-Star on Friday.
Lawyers for the Republican party did not return calls from the Capital-Star on Friday.
“We’re thrilled for the victories we had,” said Bonin, who filed some of the lawsuits on behalf of Casey’s campaign and the Democratic Senate Campaign Committee. “There were definitely strong arguments on appeal but that battle is for another day.”
Voting rights advocates, meanwhile, are looking ahead to renewed efforts to ensure voters who make a mistake on mail ballots are not disenfranchised.
The Republican National Committee has asked the state Supreme Court to decide whether a requirement to write the date on mail-in ballots is constitutional. Voting rights groups agree the court should take up the issue.
“The one thing that is undisputed in all of the litigation … is that the date is meaningless,” Mimi McMkenzie, legal director of the Public Interest Law Center, said. “It’s a vestige of a prior time that it is still in the Election Code and we shouldn’t be disenfranchising voters for a meaningless date.”
Pennsylvania’s Election Code has frequently been the subject of litigation, but especially since 2020, after Act 77 allowed voting by mail without an excuse for the first time. Counties issued about 2.2 million mail ballots in this election.
Earlier this fall, the Pennsylvania Supreme Court answered one of the questions that emerged with the advent of voting by mail, ruling that voters who intended to vote by mail must be permitted to cast provisional ballots if they find out that their mail ballots may be rejected.
Provisional ballots are used as a failsafe method for voters to ensure their votes are counted when they encounter difficulty, such as uncertainty about whether they’re registered or at the right polling place. The provisional ballot allows a voter to record their votes on election day until a decision is made about whether they’re eligible to vote.
While it’s unclear how much the Supreme Court decision increased the use of provisional ballots, their potential to be decisive in the Senate race brought a spotlight to problems with the process they have not had in past elections, Bonin said.
The lawsuits fell into three main categories, Bonin said.
Democrats and the Casey campaign argued that voters should not be disenfranchised because election workers erred by failing to sign provisional ballot envelopes. The Election Code requires the envelopes be signed by the judge of elections and the inspector for the party in the minority on the board of elections.
Bonin said that in the cases that reached a conclusion in county court, judges uniformly decided that poll worker errors were not a reason to disenfranchise voters.
“Would it have been nice to bring this up to the appellate level and get a statewide ruling on this? Yes,” Bonin said. “But if nothing else it highlights a weakness. Election workers need to understand this.”
Republicans and the McCormick campaign argued that provisional ballots where the voter signed the ballot envelope in only one place or failed to place the ballot in an inner secrecy envelope should not be counted.
The state Supreme Court ruled in September that the law requires provisional ballot envelopes to be signed twice and that a failure to do so requires election officials to discard the ballot. Bonin said the Democrats believe that disenfranchising voters for mistakes in a process that is supposed to be supervised by election officials is a violation of the U.S. Constitution’s Due Process Clause and the Help America Vote Act.
“We believe it is the poll worker’s fault and the voter should not be punished for these types of paperwork issues,” Bonin said, adding that those arguments could be raised in a future case.
Vic Walczak, legal director of the American Civil Liberties Union of Pennsylvania, said those issues could be corrected by the Pennsylvania Legislature by clarifying that such inconsequential errors should not prevent ballots from being counted.
“But they haven’t done their job,” Walczak said.
With the election over, Walczak said the state Supreme Court should take the opportunity to decide once and for all whether mail-in voters should be required to put the date on their ballots or be disenfranchised.
In numerous cases since 2020, the parties have agreed that the date and time stamped on ballots when they are received in county elections offices, and not the date written by voters, are used to determine if a ballot is timely and valid.
Pennsylvania’s intermediate court of appeals, the Commonwealth Court, has ruled twice that the date requirement violates the state Constitution’s guarantee of the right to vote because it serves no compelling governmental purpose. But the Supreme Court threw out the first ruling on a technicality and it has since refused to take up the question, saying it would not risk confusion by changing the rules so close to an election.
“Now is the time to do it, right?” Walczak said “There’s no election. Let’s get it done for the future.”
Pennsylvania Capital-Star is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Pennsylvania Capital-Star maintains editorial independence. Contact Editor Kim Lyons for questions: info@penncapital-star.com. Follow Pennsylvania Capital-Star on Facebook and Twitter.
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