PHILADELPHIA (KYW Newsradio) — Mehmet Oz is claiming victory in the Pennsylvania Republican primary for U.S. Senate as a mandatory recount in their race gets underway. However, David McCormick’s campaign had its day in Pennsylvania Commonwealth Court Tuesday, as his lawyers argued that undated mail-in ballots should be counted.
The two sides asked Commonwealth Court to make a decision, but a ruling is not expected to come immediately.
The state Supreme Court on Tuesday denied a McCormick campaign request to step in rather than waiting for Commonwealth Court to rule.
Also on Tuesday, U.S. Supreme Court Justice Samuel Alito paused a lower-court ruling in a lawsuit over a disputed 2021 local court election that would have allowed the counting of mail-in ballots that lacked a handwritten date.
It was unclear how Alito's ruling would directly affect the Oz-McCormick recount.
The state instituted a required recount last Thursday, after Oz’s margin over McCormick was about 0.07%, about seven times less than the required 0.5% margin to put a recount into action.
But on May 23, before that mandatory recount was implemented, the McCormick campaign sued to get those undated mail-in ballots counted.
The campaign for the former hedge fund CEO said that since all ballots are date-stamped when they arrive in the office, the date written on the ballot doesn’t matter.
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His campaign pointed out that while state law says a voter shall put the date on the envelope, it does not say the ballot should be excluded if there’s no date.
They argued that there has been no good reason why the handwritten date is necessary, and the only date that matters for mail-in ballots is the deadline of 8 p.m. on Election Day.
But lawyers for Oz, a celebrity doctor who won former President Donald Trump’s endorsement, called it a “desperate attempt” by the McCormick camp to “scrounge up more votes.” They said the law is clear.
Pennsylvania counties are asking for clarification. The 3rd U.S. Circuit Court of Appeals in Philadelphia ruled on May 20 that throwing out a mail-in ballot because there is no date listed on the ballot is a violation of the federal Voting Rights Act.
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But the state Supreme Court ruled after the 2020 election that ballots with no dates should not be counted.
For now, counties are instructed to process the ballots without dates, but to keep them separate and not initially include them in the totals.
As of early Tuesday afternoon, Oz was ahead by 922 votes. The McCormick campaign said there are 817 questionable ballots, though some counties did not respond to their survey.
Oz’s lawyers also noted that his lead is larger than the number of questionable ballots. They said there is no rush to make a decision, saying those ballots could be put to the side, and then revisited only if there were enough to make a difference.
Following the hearing, Commonwealth Court Judge Renée Cohn Jubelirer said she is heartened to hear general agreement that the primary was a free and fair election.
She said she would not rule immediately, and did not elaborate on a timeline.
The Associated Press contributed to this report.
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