Democratic operatives in at least four Pennsylvania counties are acting in open defiance of a state Supreme Court ruling by agreeing to count mail-in ballots that are either missing the date on the outer envelope or have the wrong one.
It’s a bold last-ditch effort to overturn the results in the U.S. Senate race between Sen. Bob Casey (D-PA) and his Republican challenger David McCormick, who is up by about 21,000 votes, a lead unlikely to be reversed by a simple recount.
Multiple news outlets, including the Associated Press, projected that McCormick would win the race. McCormick has declared victory, though Casey, who has served in the U.S. Senate since 2007, has refused to concede.
The Pennsylvania Supreme Court ruled Monday, as it did just weeks before the election, that mail-in ballots missing the date on the outer envelope or having the wrong date cannot be counted for this election. Despite the black-and-white ruling, Bucks County election commission officials decided to take matters into their own hands.
“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., a board member and a Democrat.
The board voted 2-1 last week to count 405 ballots with errors on the envelope.
Harvey said election officials know when ballots were printed for voters and, therefore, made the outer envelope date debate moot.
Board member Diane Ellis-Marseglia went a step further and said she was willingly violating the law to get the attention of a higher court.
“I think we all know that precedent by a court doesn’t matter anymore in this country, and people violate laws anytime they want,” she said. “So, for me, if I violate this law, it’s because I want a court to pay attention to it.”
Hoping to stop Harvey and Marseglia, as well as election officials in Philadelphia and in Centre and Montgomery counties, are Republicans, who have dispatched hundreds of attorneys and observers to watch the recount proceedings.
In recent years, Republicans have brought dozens of court cases to force the strictest possible interpretation for throwing out mail-in ballots, which have been predominantly cast by Democratic voters.
The Republican National Committee’s most recent ground game includes “an aggressive, comprehensive, and strategic legal posture” that will continue “for as long as it takes to make sure this election is going to be certified and Dave McCormick is going to be seated in the United States Senate,” RNC Co-Chairman Michael Whatley said.
Here’s a look at the recount process, key players, dates, and what comes next for Pennsylvania’s hotly contested Senate race.
Why is there a recount?
By Pennsylvania law, a recount is automatically triggered if the margin of victory is within half a percentage point. Secretary of Commonwealth Al Schmidt, a Republican, announced that unofficial results in the Nov. 5 general election race for the U.S. Senate fell into that category.
When does the recount start?
Some places, such as Lancaster and Lebanon counties, started their recount on Nov. 18. The deadline for the rest of the counties to start is Nov. 20.
When does the recount end?
Counties must finish counting by noon on Nov. 26 and report their results to Schmidt’s office no later than noon on Nov. 27.
How much will it cost?
The recount cost is expected to exceed $1 million, paid by taxpayer funds. The last recall, during the Republican 2020 primaries, between McCormick and Mehmet Oz, cost Pennsylvania taxpayers $1.05 million and resulted in Oz moving on to the general election, in which he was beaten by Sen. John Fetterman (D-PA).
What did the Pennsylvania Supreme Court say?
In its Nov. 18 ruling, the state’s high court reiterated its previous stance that undated or incorrectly dated mail-in ballots should not be counted in the 2024 election. The ruling applies to all 67 of Pennsylvania’s counties.
The 4-3 ruling came after election officials in four Democratic-controlled counties said they would count those ballots despite the high court’s similar ruling in September.
While the latest ruling settles how the mislabeled ballots are counted this year, the court has not weighed in on the underlying argument that Democrats brought up, which is that by rejecting the ballots, the state is violating the constitutional rights of voters.
Josh Shapiro weighs in
Gov. Josh Shapiro (D-PA) sided with the state’s high court late Monday, arguing that ignoring the ruling would damage faith in the electoral process.
“Any insinuation that our laws can be ignored or do not matter is irresponsible & does damage to faith in our electoral process. The rule of law matters in Pennsylvania. … It is critical for counties in both parties to respect it with both their rhetoric & their actions,” he posted on X.
Casey’s camp
Casey campaign manager Tiernan Donohue argued Democrats want to ensure all legitimate votes are counted and claimed McCormick’s campaign, along with Republicans, is trying to “disenfranchise” Pennsylvanians.
“Senator Casey is fighting to ensure Pennsylvanians’ voices are heard and to protect their right to participate in our democracy — just like he has done throughout his entire career,” Donohue said. “Meanwhile, David McCormick and the national Republicans are working to throw out provisional ballots cast by eligible Pennsylvania voters and accepted by county boards.”
McCormick’s camp
McCormick spokeswoman Elizabeth Gregory called Monday’s ruling a “massive setback to Senator Casey’s attempt to count illegal ballots.”
She also blasted Bucks County commissioners for “blatantly violating the law in an effort to help Senator Casey.”
“Senator-elect McCormick is very pleased with this ruling and looks forward to taking the Oath of Office in a few short weeks,” she said.
Who is Diane Ellis-Marseglia?
Ellis-Marseglia is a Bucks County commissioner who was first elected to the board in 2007. She began her fifth term earlier this year. During a reorganization meeting on Jan. 2, 2024, she was named commissioner chairwoman for 2024. She recently made headlines when she admitted to breaking the law knowingly by counting ballots the state Supreme Court said were invalid.
“I think we all know that precedent by a court doesn’t matter anymore in this country,” she said. “People violate laws anytime they want. So, for me, if I violate this law, it’s because I want a court to pay attention. There’s nothing more important than counting votes.”
She said she ran for office to continue her work addressing mental health problems across the county.
Who is Robert Harvie Jr.?
Harvie was elected to the Board of Bucks County Commissioners in November 2019 and was sworn into office on Jan. 6, 2020. He was named chairman of the board on Jan. 5, 2022.
He and Ellis-Marseglia spearheaded Bucks County’s blue wave.
Harvie, a high school history teacher for more than 25 years, said his main goal is to make local government more responsive to the people’s needs.
He called it “a pretty stupid thing” not to count someone’s vote because the date on the envelope and ballot did not match.
Marc Elias
Democratic lawyer Marc Elias, who made headlines for criticizing President-elect Donald Trump’s refusal to accept the 2020 election results, is involved with the Democratic efforts in the recount.
“The Pennsylvania Senate race is not over,” Elias warned in a recent X post. He also pointed to a statement from the Pennsylvania Secretary of State’s Office saying there were “at least 100,000 ballots remaining to be adjudicated.”
Michael Whatley
Whatley, co-chairman of the RNC, told reporters on Monday that McCormick had the full backing of the party and that the GOP was going on the offense, filing dozens of cases to ensure only “legal votes” are counted.
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Whatley said the party was dispatching hundreds of attorneys and observers to every county in the Keystone State to watch the recount proceedings.
Whatley said the RNC would have advocates in place for “an aggressive, comprehensive, and strategic legal posture for as long as it takes to make sure this election is going to be certified and Dave McCormick is going to be seated in the United States Senate.”