Pennsylvania GOP Senate Candidate Fails in Attempts to Target Provisional Ballots
A Pennsylvania judge rejected a request Friday morning from David McCormick, the Republican candidate in the Pennsylvania Senate race, to increase the number of Republican observers in the provisional ballot counting process in Philadelphia County, a predominantly Democratic county.
McCormick also filed a second lawsuit Thursday evening but withdrew it during a hearing this afternoon.
AP News declared McCormick the winner on Thursday, but as of this morning, NBC News is still saying the race is too close to call. Incumbent Sen. Bob Casey (D) has not conceded.
In Pennsylvania, election officials may ask a voter to cast provisional ballots if they can’t verify a voter’s eligibility. This can occur for multiple reasons, including when a voter reports to the wrong precinct, doesn’t report a recent address change or was issued an absentee ballot but it was rejected or not received.
In one lawsuit, McCormick sued the Philadelphia County Board of Elections and three Philadelphia City commissioners on Thursday, seeking to increase the number of Republican observers authorized to examine the counting of provisional ballots cast in the 2024 election.
On Friday, Nov. 8, Philadelphia County had started to examine and count around 15,000 to 20,000 provisional ballots cast in the general election. Pennsylvania law specifically allows each political party to have one observer of the process and each candidate running for office to have one.
McCormick argued that the county is planning to examine the provisional ballots with so many of their own personnel that the Republican observers present may not be able to fully examine every single ballot.
He asked a state court to rule that the examination and counting of provisional ballots can only occur in the county if there are the proper number of GOP representatives present, and if they can fully monitor the process, which includes keeping a list of provisional voters and challenging the county’s decision to count or partially count any ballot.
While litigation was ongoing, he asked the court to prohibit the county from examining or counting any provisional ballots without adequate Republican observation.
On Friday, a judge rejected his emergency motion, and as a result, Philadelphia County will continue its examination and counting of provisional ballots with the current number of Republican-authorized representatives.
McCormick brought a second lawsuit on Friday against the county, seeking the ability to challenge large categories of provisional ballots together, known as “global challenges.” He also asked the court to segregate provisional ballots from voters who originally requested mail-in or absentee ballots. In a hearing this afternoon, McCormick orally withdrew the lawsuit.
Last month, the Pennsylvania Supreme Court ruled that under state law, voters whose mail-in ballots were rejected due to minor errors like a missing inner secrecy envelope must be allowed to vote provisionally.
The Republican National Committee and Pennsylvania Republican Party strongly opposed the ruling and appealed that case to the U.S. Supreme Court. The nation’s highest court declined to block the ruling ahead of the 2024 general election, but several justices indicated the case presents an important legal question that the courts should resolve.
McCormick argued that in this election, these votes violate state law and should not be counted.
He asked the court to block the county board of elections from counting provisional ballots until the Supreme Court steps in or allow Republican poll observers to bring a challenge to all provisional votes cast by voters who made minor mistakes on their mail-in ballots.
This isn’t the first time that McCormick has filed a lawsuit around the counting of ballots in an election.
He also ran for a U.S. Senate seat in Pennsylvania in 2022 but ultimately lost in the Republican primary to Dr. Mehmet Oz. When it was announced there would be a recount to the tight race, McCormick filed a lawsuit arguing that undated and mail-in ballots should be counted. Pennsylvania law states that ballots with incorrect or missing dates on the outer envelopes cannot be counted.
The court ordered the counties to count the undated mail-in ballots, but maintain separate results — one with the undated ballots included and one without — until a final decision on the merits was reached. McCormick conceded to Oz the next day before the recount results were released.
The state’s handwritten date requirement has been extensively litigated over the past few years. The Pennsylvania Supreme Court has still not issued a ruling on the merits of the case.
In August, the Pennsylvania Commonwealth Court blocked the strict enforcement of the date requirement for violating the fundamental right to vote, but the State Supreme Court later vacated that decision on jurisdictional grounds.
In October, the justices denied a petition from voting and civil rights organizations arguing that these ballots should be counted because they said it was too close to the upcoming election to change procedures.
In 2022 and 2024, McCormick filed lawsuits arguing both positions on the issue of undated and misdated ballots. It’s unclear if his view on the issue changed or if in each election he argued the position that would help him win his race.
In this current election, both of his attempts to interfere with the counting of provisional ballots failed.