An under-the-radar election in Pennsylvania next week could have a major impact on the rules for the 2024 election.

Democratic Superior Court Judge Daniel McCaffery and Republican Montgomery County Court of Common Pleas Judge Carolyn Carluccio are facing off next week for an opening on the state Supreme Court after the death of Democratic Justice Max Baer. The election won’t change who controls the court: Democrats currently have a 4-2 majority. But a win for the GOP would put Republicans one step closer to flipping the court in the coming years.

In the more immediate term, the victor of the race will serve as the tiebreaker for the court, which has deadlocked on high-profile election cases since Baer died last fall.

In one case regarding ballot curing, one Democratic justice sided with the Republicans who wanted to reverse a lower court’s decision that allowed counties to help voters fix errors — like their signature — on mail ballots. Because the state’s high court ruled 3-3 in a case originally brought by the Republican National Committee and others, the lower court’s decision remained in place — meaning counties could continue to allow voters to cure their ballots.

Similarly, in another case brought by Republicans last year on if mail ballots that were dated incorrectly, or not at all, should be thrown out, a Democratic justice joined Republicans, causing a deadlock. That led to those ballots being set aside and not counted. Republicans, who are less likely to vote by mail compared to Democrats (although some in the GOP are looking to change that), considered the ruling a win.

An extra vote in either of these cases could have influenced the outcome, potentially changing how votes are counted in the swing state. Both candidates said that they could not prejudge potential cases when Score asked about how they would rule on those issues. But Carluccio said in a statement that she does “have concerns about the conflicting, and sometimes unclear, undated ballot decisions made by the court in 2023, 2022, and 2020 [about the state’s mail ballots]. I believe our laws must be applied as written, and certainly, our election laws must be applied consistently across all counties, regardless of the election year.”

McCaffery said in a statement that the state’s mail ballot law was “passed with broad bipartisan support” and “any challenge to voting rights must be viewed in the context of promoting a fair and robust election process, free from fraud or voter manipulation.”

It’s likely that even more election litigation will make its way before the court in 2024. Pennsylvania was one of the many states home to court challenges following the 2020 election, spurred by former President Donald Trump’s false claims that the contest was rigged against him. And with Trump currently leading the GOP presidential field, a similar scenario could play out next year — and McCaffery or Carluccio could be the deciding vote.

Earlier this year, Carluccio didn’t directly address a question asking if she thought the 2020 and 2022 elections were free and fair. And in a recent interview with the editorial board of The Philadelphia Inquirer, Carluccio said she has “no idea” if President Joe Biden won the 2020 election.

“Yeah, I think he’s the president,” she quickly added after a “surprised reaction” from an editorial board member. “Obviously, he’s our president. I believe he won the election. There are people in my party who don’t believe that. I do believe that I’ll be very clear about it. And I should have just been more direct in the beginning.”

“Unfortunately, the Philadelphia Inquirer chopped up my comment and did not include my full statement,” Carluccio told Score. “I continued to say ‘I’ve seen no evidence to say that he didn’t win it’ when answering the question. Joe Biden obviously won the 2020 election and is our President.”

The Pennsylvania Supreme Court race has drawn millions of dollars from national groups, as state Supreme Court races continue to garner more attention. There’s scarce public polling on the race, but McCaffery had the lead in a poll from the conservative Commonwealth Foundation from last month. He also has a fundraising advantage, and Democrats are narrowly outspending Republicans on the airwaves.

Happy Monday. We’re fast approaching Election Day. Have any burning questions about the races in Kentucky, Mississippi, Virginia, Ohio and Pennsylvania? Some of my POLITICO colleagues and I will answer them next week. Send them over to [email protected] and @madfernandez616.

Days until the 2023 election: 8

Days until the Iowa Republican presidential caucuses: 77

Days until the Republican National Convention: 259

Days until the Democratic National Convention: 294

Days until the 2024 election: 372


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