PA Supreme Court — And Shapiro — to Law-Defying Dem Vote Counters: Knock It Off!

We support our Publishers and Content Creators. You can view this story on their website by CLICKING HERE.

The justices didn’t mince words about it, either. Clearly annoyed by the public declaration by Bucks County Commissioners Chair Diane Ellis-Marseglia, the Pennsylvania Supreme Court unanimously and quickly ordered all counties to abide by previous court rulings excluding undated or misdated ballots from the counting process.

And just in case Ellis-Marseglia and Bob Casey are too obtuse to read fine print, the justices bolded the point in their per curiam decision:

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 Application is DENIED in all other respects. In particular, we deny the request to exercise plenary jurisdiction over related matters that have been commenced in various courts of common pleas. This order shall be deemed authoritative and controlling in all such matters and as to all county election board members.

Gee, what does SHALL NOT BE COUNTED mean? Do you think Casey and Marc Elias can figure that out?

The ruling itself is unanimous, although three of the seven justices dissented on whether the case was properly ripe. They object to the invocation of the “King’s Bench jurisdiction” at this point rather than allowing the challenges to rise separately through the lower courts first. “I have far more confidence in our courts of common pleas,” wrote Justice Christine Donohue, “to apply the law than do some of my colleagues.” Nonetheless, none of the justices dissented from the ruling itself. 

Even the media noted the obvious hostility exhibited by the court to the notion that administrative agencies could decide what is and is not constitutional. The Associated Press picked up on one of the concurrences to emphasize the ‘stern’ nature of the rebuke to Ellis-Marseglia and Casey by extension, although they characterize the errors as “minor”:

The Associated Press declared the GOP candidate the victor of the nationally watched Pennsylvania Senate race, but the 18-year incumbent has so far refused to concede and has been fighting across the state to get mail-in and provisional ballots with minor errors included in the final count.

In issuing Monday’s order, Supreme Court judges had stern words for local officials who had voted to tally these ballots despite an earlier court ruling against it.

Justice P. Kevin Brobson wrote in a concurring opinon that he wanted “to disabuse local elections officials of the notion that they have the authority to ignore Election Code provisions that they believe are unconstitutional.”

Undated or misdated ballots are no minor issue. The state legislature set a deadline for the receipt of mail-in ballots, and for good reason. Failing to enforce deadlines would turn elections into endless exercises of counting. The proper way to address that issue is with the legislature, not by local officials who simply don’t like the law. The courts have ruled repeatedly on this, including the state supreme court that clearly has run out of patience on this question. 

Belatedly, Governor Josh Shapiro has also rebuked his party activists for undermining the rule of law in this Senate election:

Gov. Josh Shapiro, a Democrat, issued a statement on Monday both criticizing lawmakers for failing to clarify vagueness in state election law, and calling on local officials to now heed the court’s order.

“The Department of State had advised counties repeatedly of their duty to segregate challenged provisional ballots and undated ballots in anticipation of a ruling by the court,” Mr. Shapiro said. “The court has now ruled on the counting of these ballots specific to the Nov. 5, 2024, election, and I expect all county election officials to adhere to this ruling and all the applicable laws governing our elections.”

He added that “any insinuation that our laws can be ignored or do not matter is irresponsible and does damage to faith in our electoral process.”

True, although it’s unclear why Shapiro waited until the court spoke to address that point. Profiles in Courage it ain’t. 

So … now what? The counties will have to remove those added ballot counts from their totals, which will put the Senate race back to a gap of around 24,000 votes. That’s far too large a gap for recounts to impact, as I explained in 2018 and 2009. This leaves no path for Casey to overcome Dave McCormick’s margins, but of course, there was no legitimate path before this ruling anyway. 

Casey’s campaign could ask for an emergency appeal to the US Supreme Court, but one suspects that not only would it get laughed off, but that this SCOTUS might actually take it up to rule that any ballots received after Election Day should be invalidated. The Fifth Circuit ruled the practice of post-Election Day ballot receipt unconstitutional, and the Supreme Court will likely get that issue soon in any case. 

It’s long past time for Casey to pack up his campaign and go home. He doesn’t have to concede, but he does have to act as though the rule of law matters.