PHILADELPHIA (KYW Newsradio) — As Pennsylvania Commonwealth Court is weighing whether undated mail-in ballots should be counted in the state’s U.S. Senate Republican primary between Mehmet Oz and David McCormick, a Temple University Beasley School of Law professor said their argument reflects election issues far beyond this race that could even affect the fabric of our democracy.
As of Thursday afternoon, Oz led McCormick by a little more than 900 votes in a race with more than 1.2 million votes cast by the May 17 primary election, but a state-mandated recount has begun.
In a lawsuit filed in Commonwealth Court, McCormick argues that a mail-in ballot where the voter did not specifically put a date on the ballot should be counted. His opponent argues that state law says they should not.
Oz appears to have enough votes to win, regardless if those ballots are counted or not. The winner will face Democratic Lt. Gov. John Fetterman in the general election this November.
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Why do so many election results end up in litigation?
Temple Law professor Craig Green says there are three main ingredients to the increased role of the courts in elections.
The first involves how the country is pretty evenly divided politically, so many races are tight. The second is how elections themselves have become an even more political process.
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“Basic ideas about election integrity are threatened and challenged in ways they haven't been for 50 years,” said Green.
The third, he said, has to do with the current 6-3 conservative majority on the U.S. Supreme Court.
“If you're a litigant, you might take your chances on some kind of aggressive argument that you might have just let lie in the past, because nobody's quite sure exactly what are the courts going to do,” Green explains.
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The arguments of the McCormick-Oz case, and the long-term effects of such litigation
Attorney Wade Albert, who is not directly involved in the McCormick suit, said part of the argument in favor of counting undated ballots in the McCormick-Oz race comes from a recent ruling in another case by the U.S. Court of Appeals for the Third Circuit in Philadelphia.
That ruling said the federal Voting Rights Act prohibits throwing out a ballot for an error that doesn’t affect the process, something they judge as immaterial like a missing date.
“I'm just paraphrasing, but basically in this case, the act of voting should not prevent a voter from having their ballot cast,” Albert said.
But Supreme Court Justice Samuel Alito put the brakes on that Third Circuit Court ruling, leaving it in limbo without any indication of a next step.
Green said that such a ruling only adds to the confusion in an already visceral time in the political realm.
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“I think the combination of change in the courts, a change in the way Americans think about the election system,” said Green. “Then what everybody knows is a really hot moment in American politics. It's a perfect storm, and it's pretty bad.”
Green said the argument over which ballots to count isn’t as much about the current Oz-McCormick race as it is about the current politics around elections.
“The scripts are pretty well-formed to sort of have people really make it into a spectacle, and really make it into a circus,” said Green.
He calls that a potentially dangerous path, as American democracy relies on trust in elections and the peaceful transition of power.
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