The Pennsylvania Supreme Court has ordered counties within the state not to count undated mail-in ballots after multiple counties said they would.
The order came on Nov. 18 as the commonwealth began a recount process in the race for U.S. Senate. Both Decision Desk HQ and The Associated Press called the race for Republican Dave McCormick, who ran against long-term incumbent Sen. Bob Casey (D-Pa.). However, because McCormick’s lead fell within a 0.5 percent margin, state law required a recount.
The decision directed all 67 counties within the state to comply “with the prior rulings of this Court in which we have clarified that mail-in and absentee ballots that fail to comply with the requirements of the Pennsylvania Election Code ... shall not be counted for purposes of the election held on November 5, 2024.”
“This order shall be deemed authoritative and controlling in all such matters and as to all county election board members,” the court stated.
The court’s order singled out three county boards of elections—Bucks, Montgomery, and Philadelphia—that had decided to count the undated ballots.
The Republican National Committee (RNC) and the Pennsylvania Republican Party had recently filed lawsuits against county officials who counted such ballots.
A similar dispute arose just before voters headed to the ballot box on Nov. 5. A state appeals court had ruled that not counting undated ballots in a special election violated the state’s constitution. The state supreme court responded on Nov. 1 with an order that halted the appeals court decision while clarifying that the appeals decision didn’t apply to the general election on Nov. 5.
“This stay is entered without prejudice to the filing and due consideration on the merits of any petition for allowance of appeal that the parties may file or the disposition of an appeal should this Court grant such petition,” the order read.
Montgomery County Commissioner Neil Makhija, a Democrat, has defended counting the undated ballots while noting McCormick’s previous support for the practice in 2022.
“Under the [Pennsylvania] constitution’s free and equal elections clause, I believe every ballot cast by an eligible voter must be counted—including undated mail-ins,” Makhija said in a post on Nov. 12.
He also pointed to the appeals court decision, stating that the state supreme court had “punted on the merits.”
Pennsylvania Supreme Court Justice Christine Donohue issued a dissenting statement in which she argued that “there is nothing extraordinary or urgent about the Petitioners’ challenges” and that the RNC had “an existing avenue of review for their challenges to the decisions of these Boards of Elections.”
Justices David Wecht and Kevin Brobson issued concurring statements.
“I write separately to disabuse local elections officials of the notion that they have the authority to ignore Election Code provisions that they believe are unconstitutional,” Brobson said in a statement joined by Wecht and Justice Sallie Mundy. “Only the courts under our charter may declare a statute, or provision thereof, unconstitutional.”
