In a win for lawfully conducted elections, the Pennsylvania Supreme Court stepped in on Monday to stop election officials from counting deficient mail-in and absentee ballots. The emergency order came after Bucks County decided to go rogue and count illegal ballots in the race for U.S. Senate between Republican Dave McCormick and incumbent Democrat Senator Bob Casey. The Associated Press had already declared McCormick the winner of the race. Notably, Centre, Montgomery, and Philadelphia counties allegedly also “overlooked the deficiencies.” State law requires a handwritten date on the outer return envelope containing a ballot.

The 4-3 decision on Nov. 18 from the Pennsylvania Supreme Court in the Middle District ordered all 67 county boards of elections to “comply with prior rulings of this Court in which we have clarified that mail-in and absentee ballots that fail to comply with the requirements of Pennsylvania Election Code, SHALL NOT BE COUNTED for purposes of the election held on November 5, 2024.” The Republican National Committee and the Republican Party of Pennsylvania were Petitioners in the case.

Justice Kevin Brobson, joined by Justices David Wecht and Sally Updyke Mundy, emphasized that election officials must follow the Election Code,

“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 wrote. “Only the courts under our charter may declare a statute, or provision thereof, unconstitutional.”

The decision ordering all 67 counties in Pennsylvania to follow the law was likely in response to a widely distributed Nov. 14 statement from a Bucks County Board Commission Chair named Diane Ellis-Marseglia, who indicated in a recent Board of Commissioners meeting she would ignore Election Code provisions. In a somewhat puerile statement, Ellis-Marseglia seemed to imply that because some people break the law, she too could also ignore laws that exclude deficient ballots in election counts. Ellis-Marseglia is currently in her fifth term on the Bucks County Board of Commissioners.

During the meeting, Ellis-Marseglia seconded another member’s motion to reject certain categories of ballots, including deficient mail-in ballots. The Nov. 14 commission debate to include the ballots concerned approximately 400 deficient ballots. Ellis-Marseglia seconded the motion with the following statement:

“Yeah, I’m  going to second that, mostly because I think we all know that precedent by a court doesn't matter anymore in this country and people violate laws anytime they want. So for me, if I violate this law, it's because I want a court to pay attention to it.”

Ellis-Marseglia later apologized but also said her comment was “inartfully worded” and taken out of context.

Perhaps some of the confusion over whether to count deficient ballots came from a state appeals court that in October ruled undated ballots should be counted. Notably, however, the October 30, 2024  order was narrowly directed for a special election.

The October 30 decision ordered the Philadelphia County Board of Elections to “count the undated mail-in ballots cast” by two Appellees, Brian T. Baxter and Susan T. Kinniry “and the absentee and mail-in ballots cast by the other 67 qualified electors whose ballots were rejected due to outer envelope dating errors in the September 17, 2024 Special Election.” The fuzzy language the court used may have left the door open for the November election. The court wrote that it was “not being asked to make changes with respect to the impending 2024 General Election.”

Image: Thomas Nast