HARRISBURG, Pa. (AP/KYW Newsradio) — The national and state Republican parties are taking the same side as celebrity heart surgeon Dr. Mehmet Oz in Pennsylvania's neck-and-neck GOP primary contest for U.S. Senate and opposing a lawsuit that could help former hedge fund CEO David McCormick close the gap in votes.
The McCormick campaign's lawsuit was filed in Commonwealth Court late Monday, less than 24 hours before Tuesday's deadline for counties to report their unofficial results to the state.
In it, McCormick argues that all mail-in ballots that were received before the deadline — and have the proper post mark and timestamp to show it — should be counted, even if they do not have a handwritten date on the return envelope as required by state law.
The McCormick campaign went further on Tuesday and petitioned the Supreme Court of Pennsylvania to step in — even without a lower court ruling to consider — and order all county boards of election to count the undated ballots.
Oz, who is endorsed by former President Donald Trump, has pressed counties not to count those ballots, and the Republican National Committee and state GOP said they would go to court to oppose McCormick.
McCormick's team cites the 3rd U.S. Circuit Court of Appeals' decision, from Friday, on a separate case involving undated ballots in Lehigh County in last year’s election. The three-person panel said the state election law’s requirement of a date next to the voter’s signature on the outside of return envelopes was “immaterial,” and votes missing that handwritten date should not be tossed. A postmark, for example, was sufficient.
The ruling went against the position that Republicans in Pennsylvania have taken in courts repeatedly in the past to try to disqualify legal ballots cast on time by eligible voters for technicalities, such as lacking a handwritten date.
On Tuesday, Gov. Tom Wolf’s administration issued guidance to counties saying that any ballots without dates must be counted, but because of the pending litigation they should be separated as a precaution — an acknowledgment that lawyers for defendants in the federal appeals court case said they will appeal to the U.S. Supreme Court.
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In an appearance Monday on a conservative Philadelphia radio talk show, McCormick insisted “every Republican vote should count” and said his campaign believes the federal court decision is binding on counties.
In a statement, the RNC's chief counsel, Matt Raymer, said “election laws are meant to be followed, and changing the rules when ballots are already being counted harms the integrity of our elections.”
But Democratic elections lawyer Adam Bonin says, despite calls for the state Legislature to clarify the law so all 67 counties are operating under the same playbook, the law isn’t that specific. "We have a federal court which has said that a voter's failure to ... handwrite a date on a ballot is not something which should disqualify that ballot, as long as the ballot has been received on time," he said.
And the Pennsylvania Supreme Court weighed in, in 2020, saying county officials don’t have to throw out these undated ballots.
Delaware County Director of Elections Jim Allen says they are following guidance handed down from the Department of State, but he adds, the issue of what ballots should or should not be counted is not exactly clear cut.
"In 2020, the court ruled that, whether the person put a date or put the wrong date in, it didn't matter. But then in 2021, would receive guidance that it did matter. And now there has been a federal court ruling that seems to overturn that thinking," Allen said.
The exact number of affected Republican ballots statewide isn’t known, but in the five-county Southeastern Pennsylvania region, there are 104 in Philadelphia, 49 in Bucks County, 46 in Montgomery County, and 12 in Delaware County.
The race is close enough to trigger Pennsylvania’s automatic recount law. Oz led McCormick by 992 votes, or 0.07 percentage points, out of 1,341,037 ballots reported by the state as of Tuesday morning.
Although he trails the vote count, McCormick has been doing better than Oz among mail-in ballots. The Associated Press will not declare a winner in the race until the likely recount is complete. That could take until June 8.
McCormick’s lawsuit is the first — but likely not the last — in the contest between the two candidates. Any decision in Commonwealth Court would likely end up being appealed to the state Supreme Court.
Oz and McCormick are vying for the nomination to take on Democratic nominee John Fetterman in a presidential battleground contest that is expected to be among the nation's most competitive races this fall. The seat is open because two-term Republican Sen. Pat Toomey is retiring, creating the Democrats' best opportunity to pick up a seat in the closely divided Senate.