The Pennsylvania Supreme Court on Monday unanimously directed county election officials to stop defying the court’s guidance not to count mail ballots that were missing dates or had errors in the date field on the outer return envelope.
Last week, officials in several counties — including Bucks, Philadelphia and Montgomery — decided to count mail ballots with such errors on the outer envelope. They argued that the State Supreme Court’s pre-election guidance to throw out such ballots had not been decided on the merits, allowing them to interpret the election code and count the ballots.
The decision to count the ballots — about 400 in Bucks County, 600 in Philadelphia and an unspecified total in Montgomery — immediately became a source of controversy in the state’s contentious race for U.S. Senate. Dave McCormick, the Republican challenger, is leading Senator Bob Casey, the Democratic incumbent, by about 17,000 votes. The margin, less than half of a percentage point, has set off an automatic recount in Pennsylvania under state law.
The State Supreme Court’s decision tried to leave no room for interpretation for local election officials to continue to count the ballots.
“All Respondents, including the Boards of Elections in Bucks County, Montgomery County, and Philadelphia County, SHALL COMPLY with the prior rulings of this Court,” the court wrote.
In a concurring opinion, Justice P. Kevin Brobson, a Republican, warned officials that they did not have the “authority to ignore Election Code provisions that they believe are unconstitutional.”
“Only the courts under our charter may declare a statute, or provision thereof, unconstitutional,” Justice Brobson wrote.
The moves by the election commissions had put a new spotlight on the role of local election officials in post-election decisions and certification of results.
During a pre-election period awash in litigation, legal experts expressed concerns about rogue election officials acting outside the law, potentially refusing to certify an election or removing voters from the rolls.
Gov. Josh Shapiro, a Democrat, issued a statement on Monday both criticizing lawmakers for failing to clarify vagueness in state election law, and calling on local officials to now heed the court’s order.
“The Department of State had advised counties repeatedly of their duty to segregate challenged provisional ballots and undated ballots in anticipation of a ruling by the court,” Mr. Shapiro said. “The court has now ruled on the counting of these ballots specific to the Nov. 5, 2024, election, and I expect all county election officials to adhere to this ruling and all the applicable laws governing our elections.”
He added that “any insinuation that our laws can be ignored or do not matter is irresponsible and does damage to faith in our electoral process.”
Neil Makhija, the Democratic chair of the Montgomery County board of elections, said in a statement that he would “respect the Pennsylvania Supreme Court’s opinion, which, unfortunately, means that thousands of votes cast by lawfully registered citizens will be thrown out in this election.”
He added that he hoped the court would revisit the merits of the legal questions regarding undated or misdated ballots before the next election.
Lisa Deeley, a Democratic commissioner from Philadelphia, said the decision was “being reviewed by our lawyers.”
“Regardless of next steps, I will continue to fight, through every viable legal avenue, to make sure that we are enfranchising eligible voters, not disenfranchising,” Ms. Deeley said.
Robert Harvie Jr., the chairman of the Bucks County board and a Democrat, said in a statement that the ruling from the court on Monday was “precisely the clarity we were seeking from the courts in this matter” and that the board “will of course comply with the order of the court.”
Mr. Harvie also posted the partisan breakdown of the 407 ballots in question, showing Mr. Casey receiving 225 and Mr. McCormick 182. “These numbers make clear, as has been known by both parties, that these votes were never going to alter the outcome of this race,” Mr. Harvie said.
The three counties vary in their political makeup. In Philadelphia and Montgomery counties, registered Democrats heavily outnumber Republicans; Bucks County has more registered Republican voters than Democrats.
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