Republicans are going on the offense in Pennsylvania’s contentious Senate recount battle, filing dozens of cases to ensure only “legal votes” are counted and dispatching hundreds of attorneys and observers to every county in the Keystone State to watch the proceedings.
The RNC’s ground game, which includes “an aggressive, comprehensive, and strategic legal posture,” 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 Chairman Michael Whatley told reporters on Monday.
Incumbent Sen. Bob Casey (D-PA) and McCormick, his GOP challenger, are locked in a razor-thin race. The Associated Press, as well as other outlets, have called the race for McCormick. McCormick has declared victory and already traveled to Washington, D.C., for Senate orientation, though Casey, who has served in the Senate since 2007, has refused to concede. Casey could have stopped the recount and saved Pennsylvania taxpayers about $1 million, but his campaign believes that he has the votes to win.
A recount is triggered in Pennsylvania when the margin of an election is within half of a percentage point.
According to the Pennsylvania Department of State, as of Thursday, Casey, a three-term Democrat, received 48.53% of the vote with 3,359,086 votes cast while McCormick received 48.9% with 3,385,115 votes cast.
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With the race so close, Democratic operatives in at least four Pennsylvania counties, in open defiance of a recent state Supreme Court ruling, agreed to count mail-in ballots that are either missing the date on the outer envelope or have the wrong one.
Pennsylvania’s election code requires voters to sign and date the outer return envelope of their mail-in ballots in order for the votes to be counted.
Enforcement of the dating requirement has been in dispute for years, with groups such as the American Civil Liberties Union of Pennsylvania arguing that it is immaterial to a voter’s eligibility to vote and that rejecting it violates their constitutional rights.
The decision of the four Pennsylvania counties to ignore the state Supreme Court ruling is a bold, last-ditch effort to overturn the results of a lead unlikely to be reversed by a simple recount.
On Monday, the Pennsylvania Supreme Court again ruled in a 4-3 decision that undated or misdated mail-in and absentee ballots “shall not be counted” by any of the state’s boards of elections. That includes the four counties where Democratic officials have already voted to defy the court’s September ruling.
In his written opinion, Justice P. Kevin Brobson tried to “disabuse local elections officials of the notion that they have the authority to ignore Election Code provisions that they believe are unconstitutional … Indeed, this Court has held that administrative agencies, like county boards of elections, lack the authority to declare unconstitutional the very statutes from which they derive their existence and which they are charged to enforce.”
Despite the ruling, it is unclear how it will play out or if the four counties in question will add their ballots to their recount totals.
Just over 80,000 mail-in, absentee, and provisional ballots had not been counted by the time the recount was triggered — theoretically enough but unlikely to close the gap between the two candidates.
All counties must begin the recount by Wednesday and finish by noon on Nov. 26. They are required to report the results to the secretary of the commonwealth no later than noon on Nov. 27.
The decision to ignore the state Supreme Court ruling and count mail-in ballots that are missing critical data began with the Bucks County Election Commission.
“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 moot.
“The law needs to be changed,” Harvie said.
Board member Diane Marseglia 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,” Marseglia said. “So for me, if I violate this law, it’s because I want a court to pay attention to it.”
The RNC has vowed to fight back, and it has threatened to go after Bucks County officials such as Marseglia.
“The RNC and the Republican Party of Pennsylvania are aggressively fighting back to bring an end to this corrupt and despicable conduct,” Whatley said, adding that election officials should be held accountable for their “brazen betrayal” of the public’s trust.
“This is the kind of conduct that undermines faith in elections,” he said. “When officials pick and choose at the last minute which rules to follow and which to ignore, it naturally leads voters to lose trust in the process.”
Pennsylvania Republican Party Chairman Lawrence Tabas called what was taking place in Bucks County “absolute lawlessness.”
The RNC also blasted Gov. Josh Shapiro (D-PA) for not weighing in on Bucks County election officials’ questionable actions.
Adam Bonin, a lawyer representing the Casey campaign in Philadelphia, argued Republicans were aggressively and systematically challenging the provisional ballots of registered Democrats.
“What we are seeing this year is more organized, more disciplined, more directed, and more comprehensive than what we saw in 2020,” Bonin said.
Recounts that change the winner of an election are rare, a study by FairVote, a national nonprofit organization, found.
In an analysis of 7,000 races between 2000 and 2023, FairVote found 36 recounts during that time period. Of those, only three led to a different result.
“All three reversals occurred when the initial margin was less than 0.06% of all votes cast for the top two candidates,” FairVote said in its report.
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According to the Pennsylvania Department of State, the most recent recount was in the 2022 Republican primary for Senate, which also featured McCormick — that time, as the trailing candidate.
In that race, Mehmet Oz beat McCormick by 902 votes, a 0.07-point margin. McCormick conceded before the recount was completed.
