You might have thought that the lingering stain of the January 6 Capitol Hill riot would have persuaded every seemingly responsible grownup in politics to accept the verdict of the voters and not refuse to concede a clearly resolved race, lest the corrosive habit of election denialism become a persistent obstacle to governance. But no, not only is Pennsylvania senator Bob Casey refusing to concede his race, Democratic county commissioners in four Pennsylvania counties have decided that the explicit, clear rulings of the state supreme court mean nothing, and they’ll count ballots that are invalid under state law. The Washington Post‘s slogan warned, “Democracy dies in darkness.” And then sometimes some folks choose to stab it to death in broad daylight.
Back on November 1, the Pennsylvania supreme court reaffirmed that a state law requiring mail ballots to have handwritten dates on the return envelopes is constitutional. The court, collectively, did not stutter. They did not include any ifs, ands, or buts. They did not say there was an exception if the election was particularly close, or if a Democratic incumbent senator really wanted to stay in office.
In fact, the Pennsylvania supreme court made a similar ruling in September. Justice Kevin Dougherty offered a rather scathing rebuke to litigants who were attempting to change the rules of what counts as a legally cast ballot before the election:
“This Court will neither impose nor countenance substantial alterations to existing laws and procedures during the pendency of an ongoing election.” We said those carefully chosen words only weeks ago. Yet they apparently were not heard in the Commonwealth Court, the very court where the bulk of election litigation unfolds. Today’s order, which I join, rights the ship. And it sends a loud message to all courts in this Commonwealth: in declaring we would not countenance substantial alterations to existing laws and procedures during the pendency of an ongoing election, we said what we meant and meant what we said.
Now, four counties in Pennsylvania have given a middle finger to the state supreme court and declared they’re going to count those ballots anyway, in open defiance of the law.
As of this writing, according to the results on the state website, Republican Dave McCormick has 3,394,674 votes and incumbent Democratic senator Bob Casey has 3,376,900. That is a margin of 17,774 votes. The election was eleven days ago.
The New York Times headline declares that “the election litigation continues, with a twist.” The “twist” is that Democratic election officials are defying state law in broad daylight and daring anyone to stop them:
In at least four counties — Bucks, Philadelphia, Centre and Montgomery — local election officials are acting in open defiance of a ruling from the Pennsylvania Supreme Court that arrived weeks before the election. The court found that mail ballots that are missing the date on the outer envelope, or have the wrong date, cannot be counted for this election.The Bucks County election commission felt differently.“It is a pretty stupid thing to not count someone’s vote simply because they didn’t date an envelope for a ballot,” said Robert Harvie Jr., the chairman of the board and a Democrat, during a meeting on Tuesday where the board voted 2-1 to count 405 ballots with date errors on the envelope. He added that election officials know when ballots were printed for voters, making the outer envelope date requirement meaningless.“The law needs to be changed,” Mr. Harvie said.
Philadelphia, Centre, and Montgomery just happen to be Democratic-leaning counties, and Bucks is a swing county. The Democratic chair of the Montgomery County election board, Neil Makhija, told the New York Times that the date requirement “is immaterial and serves no purpose.”
At this moment, what counts as a legitimate cast ballot in those four counties does not count in the other 63 counties in Pennsylvania. This was the issue at the heart of the Bush v. Gore Supreme Court case in 2000: Could the state of Florida have a different standard for what counted as a legitimately cast ballot in different counties? Everyone remembers the 5–4 decision concluding there was not enough time for a new recount, but few remember the 7–2 majority acknowledging that the state of Florida could not hold a hand recount in Miami-Dade, Broward, Palm Beach, and Volusia Counties — all heavily Democratic — but only use a machine recount in the state’s other counties.
The U.S. Constitution’s equal-protection clause requires that the rules for what counts as a vote be the same statewide; you can’t have a ballot be legal on one side of the county line and illegitimate on the other side of the county border.
And yet, that’s what Pennsylvania Democrats insist should be the case. Nor do they care that both the state supreme court and U.S. Supreme Court have explicitly stated they can’t do what they’re currently doing. Bucks County commissioner Diane Ellis-Marseglia infamously contended, “I think we all know that precedent by a court doesn’t matter anymore in this country, and people violate laws any time they want.”
As a reminder, the woman who declared “people violate laws any time they want” serves on the Pennsylvania Commission on Crime and Delinquency. I guess she was brought on for her expertise in how criminals justify their lawbreaking.
Her complaint that “precedent by a court doesn’t matter anymore in this country” is, I suspect, a howl of rage about the overturning of Roe v. Wade. Once again, Donald Trump is either blessed by his enemies, or he simply brings out the very worst in them.
That’s the way we’re going to play it from here on out, huh, Democrats? If you think a law is “is immaterial and serves no purpose,” you can just ignore it?
Defying court rulings is cool now, huh?
Hey, Democrats, are you absolutely sure you want to set that precedent right before Trump takes office?
The Washington Post editorial board is certainly not right-of-center, but it is center-left, and it’s willing to tear into Democrats at times — and this is one of those times:
These Democrats’ decisions will almost certainly be overturned on appeal, but the mere attempt to defy judicial rulings is corrosive to democracy and invites similar behavior in future elections. . . .Democrats would surely protest if a Republican commissioner made the same statement to justify tipping the scales for their party’s Senate nominee — and they would be right. Elections need rules, established in advance of the voting, and those rules must be applied equally and consistently. Pennsylvania’s Supreme Court, by the way, includes five justices elected in partisan elections as Democrats and just two elected as Republicans. Even if that partisan balance were reversed, however, the court’s authority would be equally legitimate. . . .Mr. Makhija and other county officials do not get to decide whether a legal requirement is “material” and must be followed. Courts do. And they have spoken clearly.
But not every mainstream publication is willing to call out Pennsylvania Democrats for their “I don’t care what the law is. I’m going to do what I want to ensure my guy wins” philosophy.
The Philadelphia Inquirer argues that what Casey is doing this cycle is better than what Trump did last cycle, because, “Though he has not conceded, Casey has not denied the legitimacy of the election’s results as they stand.”
But Democrats arguing on Casey’s behalf are contending that those currently invalid ballots should be counted, saying that the current election results are not legitimate because they didn’t count the ballots that didn’t have handwritten dates on the return envelopes, state law be damned. And keep in mind, Casey endorsed the Democratic election commissioners who are currently defying state law. When faced with a choice between following the law and helping the candidate they prefer, these election officials spurned their duties and followed their partisan passions.
A core argument from Republicans in circumstances like this is that, at some point — preferably when the polls close on Election Day — the number of legally cast ballots to count must be set and finalized. In most states, it is necessary to count mail ballots that were mailed by Election Day, but this is why a legible postmark is needed. For provisional ballots, election officials must determine if those individuals were eligible to cast ballots in that jurisdiction or not. Sometime — preferably as close to when the polls close as possible — county and local election officials should know how many ballots there are to count.
But in the minds of Democrats, the total number of legitimate votes cast in the election is this nebulous figure that can keep rising and rising, long after Election Day. Election officials in Philadelphia, Bucks, Centre, and Montgomery counties decided that the rules for what counts as a legitimate ballot can change after Election Day, that a ballot that was not legally cast on November 5 can become legal and countable by November 18.
