Pennsylvania Supreme Court Orders Election Boards to Stop Counting Illegal Ballots

The Pennsylvania Supreme Court is ordering Boards of Elections throughout the state to follow its previous rulings and not count “mail-in and absentee ballots that fail to comply” with the state election code.

The Pennsylvania Supreme Court issued its ruling on Monday, as elections board officials in Bucks County, in particular, have defied Pennsylvania Supreme Court precedent and moved to count ballots that the court has determined cannot be counted.

The ruling reads in part:

The Court hereby ASSUMES its King’s Bench authority over the instant Application, see 42 Pa.C.S. § 502, only to DIRECT that all Respondents, including the Boards of Elections in Bucks County, Montgomery County, and Philadelphia County, SHALL 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, see 25 P.S. §§ 3146.6(a), 3150.16(a), SHALL NOT BE COUNTED for purposes of the election held on November 5, 2024.

The Republican National Committee and the Republican Party of Pennsylvania brought the lawsuit against all 67 counties in Pennsylvania, as all eyes are on the U.S. Senate race where Sen. Bob Casey (D-PA) refuses to concede to Sen.-elect Dave McCormick (D-PA) despite the Associated Press calling the race for McCormick more than week ago.

The ruling comes days after Bucks County commissioners Diane Ellis-Marseglia and chair Robert Harvie Jr. moved in a 2-1 vote to count 405 misdated or undated mail-in ballots on November 12, as counsel for McCormick pointed out in a separate lawsuit against the Bucks County Board of Elections in the Bucks County Court of Common Pleas.

“The Board did so even though its legal advisers recommended rejecting the ballots ‘based on the current state of the law,'” the appeal read.

After a warning from the county legal advisers that counting the ballots would likely lead to a lawsuit, Ellis-Marseglia said, “I just can’t vote to reject [these ballots]. I just can’t,” per the filing.

Walter Zimolong, McCormick’s counsel, wrote that the “Board violated the Election Code’s mandatory date requirement and the Pennsylvania Supreme Court’s repeated orders holding that the date requirement must be enforced.”

Ellis-Marseglia and Harvie Jr, on November 14, also moved to count provisional ballots missing signatures in one of two vital critical places, despite a Pennsylvania Supreme Court ruling from months ago that said provisional ballots missing a signature cannot be counted.

Ellis-Marseglia said she did not value the court’s precedent and boasted she was indifferent as to whether or not she was breaking the law in her official capacity by ignoring the court’s ruling.

“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.”

Ellis-Marseglia and Harvie Jr. voted to count the ballots even after the county’s legal department advised that “unless it’s signed by the voter in two places… we shouldn’t count these.”

The third commissioner, Gene Digirolamo, moved to not recognize the votes.

Pennsylvania Supreme Court Justice Kevin Brobson wrote a concurring statement accompanying the court’s order Monday “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,” Brobson added.

As of Monday afternoon, McCormick had a 17,439 advantage over Casey, with more than 95 percent of the vote counted, according to the New York Times election results . Since they are separated by less than half a percentage point, the race will go to a recount.

The case is the Republican National Committee v. All 67 County Boards of Elections, No. 136 MM 2024, in the Middle District for the Supreme Court of Pennsylvania.