Casey's behavior is reminiscent of Hooper versus Hornsby case in Alabama history

November 21, 2024 – MONTGOMERY, AL – U.S. Senator Bob Casey (D-Pennsylvania) lost re-election to Republican Dave McCormick on November 5. Casey lost by over 29,000 votes so most people expected that Casey would have conceded the election on Nov. 6; but the margin of victory was small enough that it triggered Pennsylvania's automatic recount provision.

The Associated Press, and almost every other credible news outlet, has called the race for McCormick in the days that followed.

Now it is November 21 and the Casey machine is still making 67 individual Pennsylvania counties hand recount all of the ballots from the November 5 election. Today's machines that count ballots are so accurate that the likelihood of their being a 29,000 vote counting "error" is technologically and mathematically impossible. Casey and his allies are overcoming this obstacle by counting ballots that were not counted previously.

"We're counting votes and there's a recount underway," Casey said. "So we'll see what it shows."

If the ballots that were counted on the night of Nov. 5 are the ballots counted there is no way that Casey can possibly win a recount. To get around that obvious conundrum Democratic Party election officials in blue counties have been encouraged to include provisional, undated or misdated mail in ballots.

Under Pennsylvania law a ballot must be dated, so that election officials know that it occurred before the electrion rather than after. The Pennsylvania Supreme Court has reaffirmed on Monday that illegal votes should not be counted in a 4-3 vote, which was requested by the Republican Party and opposed by Bob Casey's campaign.

Some Democratic election officials have openly said that they will disregard the Supreme Court and count the illegal votes in the recount anyway.

If Casey is the winner of the recount there will be a long court battle over who is the actual Senator from Pennsylvania – the entrenched Casey who has been in the Senate for 18 years or the pro-Trump Republican Dave McCormick.

For Alabama's own Perry O. Hooper Jr. all of this has happened before – here in Alabama and settled by the U.S. Supreme Court.

In 1996 the late Judge Perry O Hooper Sr. (R), Perry Jr.'s father, challenged entrenched incumbent Chief Justice of the Alabama Supreme Court E.C. "Sonny" Hornsby and won the legal votes. Democratic Party (at that time still a viable party in Alabama politics) probate judges and election officials at the urging of the Hornsby campaign counted a number of provisional absentee ballots that under Alabama law should not have been counted. By Democratic Party member local officials counting ballots in their jurisdictions that never should have counted the "illegal" votes gave Hornsby the win over the senior Hooper. Hornsby refused to concede or step down as Chief Justice.

Judge Hooper was forced to go to federal court where the Supreme Court ultimately upheld the lower court decision that Hooper was the elected Chief Justice of the Alabama Supreme Court – the first Republican in that office since the 1870s – and that election officials cannot change election laws after the election and have those changes apply to the election that has already happened.

https://law.justia.com/cases/alabama/supreme-court/1997/1950376-1.html

"This is exactly what happened to my dad," Hooper Jr. told the Alabama Gazette.

Hooper shared a video interview with the Gazette that he has done for another outlet about his father's case and the binding legal precedent that it set for the entire country.

"I can remember like yesterday," said Hooper.

Hooper said that he and his dad went to bed on election night with the senior Hooper up by 14,000 to 15,000 votes with 97% of the results in. The next morning Hooper received a phone call from his dad's campaign manager the late Jack Campbell who said that they were down by 25 votes in the official count.

"There is no question they stole thousands of votes between 3 o'clock in the morning to 9 o'clock in the morning," Hooper said.

Back then Alabama was still under the now unconstitutional onerous Voting Rights Act preclearance provision. The Clinton Justice Department ruled that Judge Gene Reese's decision to allow the illegal absentee ballots be counted – even though the decision had not been precleared by the DOJ allowing Hornsby to be declared the winner.

The Senior Hooper sued. Hornsby fought the lawsuit and the case went to a federal judge, then a three judge panel, and finally the U.S. Supreme Court. Ten months later Perry Hooper Sr. was declared the Resse decision was illegal and that Hooper was the winner of the race. Today Republicans hold all the state appellate court seats – Alabama Supreme Court, Alabama Court of Civil Appeals, and Alabama Court of Criminal Appeals. Ten months of legal machinations and appeals finally led to the Supreme Court decision that is still the law of the land.

"You can not change the rules of the law after the election, and that is what they wanted to do," said Hooper.

That is the conundrum that Pennsylvania Democrats face. They can either accept the election results and the law as it was on November 5 or they can break, ignore, and/or defy the law to try to find 29,000 votes that probably should not be counted in order to elect Casey to a fourth term - even though many Pennsylvanians would never accept those results - which would be challenged in court as legitimate.

Even the New York Times editorial board has written for Casey to drop this challenge to the election results as a Casey victory at this point would only further erode the public's faith in our democracy. To this point he has continued to refuse to see reason.

Casey's father was the governor of Pennsylvania. He is a career politician who has spent the bulk of his adult life in government - first as auditor general and then as treasurer before his election to the Senate, where he has been for the last 18 years - this week in the Senate may be his last in elected office.

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