Undated ballot counting halted
U.S. Supreme Court ruling could change outcome of Oz, McCormick race
HARRISBURG — The U. S. Supreme Court temporarily paused the counting of some counties’ undated mail ballots, which could potentially change the outcome of the U.S. Senate race between celebrity cardiothoracic surgeon Mehmet Oz and former hedge fund CEO Dave McCormick.
Tuesday evening’s Supreme Court action could dash the hopes of Mr. McCormick, whose campaign is trying to litigate its way to closing a 922-vote gap between him and Mr. Oz. It’s one of the first times the nation’s high court has waded into Pennsylvania’s election law since it created no-excuse mail-in voting as part of a 2019 law.
A two- sentence order from Justice Samuel Alito temporarily blocked a federal court ruling in a lawsuit over a disputed 2021 local court election that would have allowed the counting of mail-in ballots without a handwritten date. Justice Alito oversees matters for the court arising from Pennsylvania.
The 3rd U.S. Circuit Court of Appeals ruled in a case surrounding 2021 votes in Lehigh County that requiring a handwritten date on a mail ballot’s outer envelope was “immaterial.” Mail ballots are required to have a handwritten date on the outer envelope, per the Pennsylvania elections code.
Mr. Oz has opposed, and filed a brief before the Supreme Court over the weekend calling the 3rd Circuit’s decision “thinly reasoned” and “erroneous.”
His attorneys argued failure to issue a stay and potentially allowing the rules of the election to change mid-count risked undermining the public’s confidence in the results.
Once the federal appeals court issued its ruling, the Pennsylvania Department of State told counties to separate and count those ballots in anticipation that they could help to decide the outcome of the U.S. Senate primary between Mr. Oz and Mr. McCormick.
Justice Alito’s order could freeze a separate lawsuit in Pennsylvania in which Mr. McCormick’s attorneys argued Tuesday in Commonwealth Court that counties should count the undated ballots.
The Supreme Court’s action, called an administrative stay, freezes the case until it can give it further consideration.
Attorneys for Mr. McCormick’s campaign hinged almost its entire argument in Commonwealth Court earlier Tuesday on this federal appeals court ruling.
Rejecting these votes — ballots that were received before 8 p.m. on Election Day but lack a handwritten date — would be “disenfranchising otherwise qualified voters,” said Charles Cooper, an attorney for Mr. McCormick, during Tuesday’s three-hour proceedings.
The race is also undergoing a statewide recount, which was automatically triggered last week because of the slim margin — just 0.08% — that separates the two candidates.
Mr. McCormick petitioned the Commonwealth Court and state Supreme Court in the weeks since the May 17 election, asking the courts to count mail-in votes that lacked a handwritten date, but were otherwise confirmed to have been cast on time. The state Supreme Court ruled Tuesday that it would not take over the case.
Mr. McCormick’s case hinges on the 2021 Lehigh County case and the federal court ruling that was stayed by Justice Alito’s decision Tuesday.
Mr. Oz’s attorneys, as well as the Republican National Committee, said they disagreed with this federal appeals court ruling. Their hopes were lifted by Justice Alito’s ruling.
“For the courts to change the rule of the game, especially in this case, after the election … is the very reason we are here today,” said Thomas King, an attorney for the RNC and Pennsylvania GOP earlier in the day. “The law in Pennsylvania is quite clear that these undated ballots should not be counted.”
In their rebuttal in Commonwealth Court, attorneys for Mr. McCormick said that technically, using a felt-tip pen or a Sharpie to fill out an individual’s ballot would violate the state’s elections code, which requires voters to use a blueor black-ink pen. It’s the process — not the literal construction — that should be followed in the state code.
Mr. King, however, argued that legislative leaders in the General Assembly have shown in past actions — such as their efforts to impeach the Philadelphia county commissioners if they went forward with their efforts to count undated ballots in a past election — that they believe undated ballots should not be counted.
“This is a policy decision the Legislature has taken,” Mr. King said. “Taking away the power of the Legislature to decide policy issues is … wrong.”
One core concern remains for Mr. McCormick’s campaign: It’s unclear how many undated ballots exist across the state. The campaign estimates there are about 819 undated Republican ballots across the state, but it is expected to be higher because some GOP- controlled counties refuse to separate or count these ballots.
Lehigh County counted its undated ballots as part of its official vote total, while some counties like Allegheny and Berks plan to follow portions of the guidance — separate and count the ballots, but will not release the results. Approximately 13 counties haven’t said whether they’d follow the Department of State guidance, attorneys for Mr. Oz and Mr. McCormick said Tuesday.
Mr. Oz’s campaign and the RNC argued this still is not enough ballots to make up the 922-vote difference. Mr. Oz’s campaign pitched that the Commonwealth Court should reject the McCormick campaign’s request for injunctive relief, and revisit these votes if necessary after the recount is complete to see if there are enough undated ballots to change the outcome of the race.
Allegheny County will start its recount on Wednesday at 8 a.m. All counties need to report their results by June 7.