U.S. Senate candidate sues Philadelphia elections over provisional ballots

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Republican Senate candidate David McCormick filed lawsuits this week requesting an injunction against the Philadelphia Board of Elections in an attempt to “sequester” some provisional ballots currently being counted in Pennsylvania’s U.S. Senate race.

Through the lawsuit, the McCormick campaign was looking to “globally challenge” provisional ballots that were submitted by voters who originally voted by mail but whose mail-in ballots were deemed invalid.

The lawsuit demands that the elections board “sequester” those ballots “until further action is taken by the United States Supreme Court.” The complaint also says the issue involves “significant legal implications” and could have an “impact on the outcome of the election.”

The McCormick campaign also sought an additional Republican observer for the ballot counting process.

At a hearing before the Philadelphia County Court of Common Pleas Friday, Judge Jessica Brown rejected that request for an additional observer, after which the McCormick campaign withdrew its other lawsuit. The campaign can appeal the rejection and refile the withdrawn complaint. We should make that “McCormick’s lawyer told the court that the campaign would wait to see how the count went and decide later if they felt there continued to be “issues” before refiling, according to a person present at the hearing.

The McCormick campaign’s attorneys did not immediately respond to calls for comment Friday.

In the complaints, they wrote that the suit was brought to “ensure that any ballots not meeting statutory requirements can be contested collectively for judicial and administrative efficiency” and that there is concern “that the sheer number of provisional ballots will overwhelm the capacity for individual challenges, creating an impractical burden that risks errors or inconsistencies in the adjudication process.”

Adam Bonin, the lawyer for Democratic incumbent U.S. Sen. Bob Casey’s campaign, told WHYY News the lawsuits are an attempt to “gum up the process.”

“There are very clear procedures under the election code as to how provisional ballots could be reviewed and challenged,” he said. “And it’s an individual review when a staffer of the Board of Elections looks at a ballot envelope, looks up the voter, it’s at that point that an observer for Mr. McCormick in the room can decide to challenge the rule against that ballot. There’s nothing in the election code that says anything about mass challenges of the sort that they’re seeking here.”

Bonin added that the issue regarding potentially problematic mail-in ballots “is fully resolved by the state Supreme Court.”

With up to 20,000 provisional ballots scheduled to be counted starting this morning, the results will determine whether the race goes into recount. McCormick is currently leading by fewer than 35,000 votes, right around .05%, the threshold for an automatic recount.

Casey won Democrat-heavy Philadelphia with nearly 85% of the vote, suggesting that a large majority of the provisional ballots will also break his way.

Like mail-in ballots, provisional ballots are typically considered invalid when the envelope they are submitted in is not signed by the voter, in which the signature is “not genuine or not executed by the same individual,” or in which the ballot was submitted without a secrecy envelope.

The provisional ballots in question were issued for voters whose mail-in ballots were rejected and that same voter then appeared to vote in person. Provisional ballots must also be placed in secrecy envelopes and signed in front of an election official at the polling place.

Republicans previously challenged mail-in ballots that lacked signatures and proper dates on the outside of the envelopes. Just days before the election, the Republican National Committee and the Republican Party of Pennsylvania asked the U.S. Supreme Court to block a ruling by the Supreme Court of Pennsylvania requiring election boards to count provisional ballots submitted by voters whose mail-in ballots had been deemed invalid for those reasons.

McCormick had already claimed victory in the race, backed by the Associated Press, which declared him the winner Thursday.

“Yesterday, thanks to his insurmountable lead in vote counting, the AP called the race for Dave McCormick, officially naming him the next Senator for Pennsylvania,” McCormick spokeswoman Elizabeth Gregory said in a statement. “Dave is honored to have earned the support of Pennsylvanians all over the commonwealth, and looks forward to serving them in the United States Senate.”

Although the AP “calls” races based on their own projections, election results are officially certified by the Secretary of the Commonwealth after votes are tabulated by county election officials.

Maddy McDaniel, spokesperson for Bob Casey for Senate, issued a statement saying that “provisional ballots expected from areas that favor Sen. Casey, like Philadelphia and its suburbs, is further proof that this race is too close to be called.”

“As the McCormick campaign admitted in their own lawsuit this morning, the counting of these ballots could have an ‘impact on the outcome of the election,’” McDaniel said. “With more than 100,000 ballots still left to count, we will continue to make sure Pennsylvanians’ voices are heard.”

The McCormick campaign also demanded an additional Republican observer to watch the process. Pennsylvania law allows one observer from each political party and one observer for each candidate in an election, giving Democrats 37 and Republicans 11.

McCormick alleges that Republicans may not have enough representatives to be present at the counting of every provisional ballot to ensure that counters properly challenge the ballots.

EDITOR’S NOTE: This story was updated to include the results of the hearing, comments by the Casey campaign’s attorney, and other new information.