The Election Legal Challenges in Pennsylvania, Explained
It’s been two weeks since Election Day and while races in nearly every state have been called — save for a few outstanding U.S. House races in California — there’s a legal battle in Pennsylvania as a recount is underway in the state’s U.S. Senate election.
Under Pennsylvania law, any race qualifies for an automatic recount if it’s within a 0.5% margin, unless the trailing candidate waives the option. David McCormick, the Republican candidate for U.S. Senate, is leading over incumbent Democratic Sen. Bob Casey by just 0.2% of the votes — well within the margin to trigger a recount.
The results of the recount will be released Nov. 27 and, in the meantime, there’s been a barrage of lawsuits from both Republicans and Democrats all across the Keystone State. At the heart of these lawsuits is the question of which ballots should be counted. Because of state law, federal law and a recent Pennsylvania Supreme Court ruling, certain ballots — like mail-in ballots with undated or wrongly dated outer envelopes, or provisional ballots without the proper required signatures — may not be counted.
The Pennsylvania Supreme Court affirmed an earlier order that undated or wrongly dated mail-in ballots should not be counted in the general election, but it’s not exactly clear if other provisional ballots with various errors should be counted, hence the lawsuits.
Republican lawsuits
On Nov. 14, the Republican National Committee (RNC) filed a lawsuit asking the Pennsylvania Supreme Court to affirm its order prohibiting the counting of undated or wrongly dated mail-in ballots in every county. The lawsuit alleged that boards of elections in Bucks, Centre and Philadelphia counties violated the court’s order by choosing to count mail-in ballots with an undated or wrongly dated outer envelope.
Pro-voting groups have long tried to get a court to strike down the state’s controversial handwritten date requirement — most recently through two lawsuits from September. But the Pennsylvania Supreme Court did not waver from its position that these ballots should not be counted in the November election. And the RNC then sued to ensure boards of elections across the state followed that court order.
On Monday, the Pennsylvania Supreme Court reaffirmed that ruling, in a divided ruling, effectively disenfranchising thousands of voters who mistakenly forgot to date, or wrote the wrong date, on their mail-in ballot envelope.
The GOP also filed a flurry of lawsuits to block provisional ballots with various mistakes — like missing signatures from a voter or an election official, or missing dates — which they argue violates state law. So far, there are nine active anti-voting lawsuits filed by McCormick’s campaign and the RNC in Pennsylvania to block these ballots from being counted, which could disenfranchise thousands of voters. On Wednesday, a court denied the RNC and McCormick’s attempt to get 58 provisional ballots in Chester County thrown out, because they lacked a signature from the judge of elections, minority inspector or both.
Democratic lawsuits
Meanwhile, the Democratic Senatorial Campaign Committee (DSCC) and Casey’s campaign swooped in with their own barrage of lawsuits to try and get as many ballots counted as possible. So far, the DSCC and Casey’s campaign filed ten lawsuits in ten different counties to challenge their respective boards of elections’ decisions to not count certain provisional ballots — because of various mistakes.
In these lawsuits, the plaintiffs allege that ballots were disqualified because of inaccurate poll worker instructions, which they claim violated voters’ due process rights and the federal Help America Vote Act. In at least one of these cases, in Philadelphia County, the court denied the petition — meaning 2,073 provisional ballots won’t be counted in the election results.
The DSCC and Casey’s campaign also filed motions to intervene in three of the RNC’s lawsuits — challenging the Chester, Erie and Philadelphia boards of elections’ decision to count certain provisional ballots.
Will it make a difference?
So far, every major news source has called the race for McCormick. But he’s leading Casey by just over 16,000 votes — a margin that is miniscule considering that nearly 7 million votes were cast.
Still, it’s worth noting that statewide recounts are fairly rare — between 2000 and 2023, there were only 36 statewide recounts, of nearly 7,000 statewide general elections, according to Fair Vote. In those 36 recounts, only three elections resulted in a reversal of the original election results — and even then those recounts only shifted a few hundred votes from one candidate to another.