The war over every last vote in Pennsylvania’s too-close-to-call Senate GOP primary is now officially headed to the courts.
David McCormick’s campaign filed a lawsuit Monday afternoon arguing that election officials must count mail-in and absentee ballots that lack a date on their envelope, citing a federal court order released on Friday.
McCormick and his primary opponent, Dr. Mehmet Oz, have been squabbling over whether undated ballots should be counted. The fight began late last week, after a three-judge panel on the federal 3rd Circuit Court of Appeals issued a judgment that undated ballots in a 2021 county judgeship election should be counted.
McCormick’s lawsuit, filed in state court, sues the state’s chief election official and county election boards in order to compel them to count the undated ballots that were returned on time.
As of 6 p.m. Monday, Oz was leading McCormick by fewer than 1,000 votes — well within the margin for an automatic recount in the state. In the days after the May 17 primary, both Oz and McCormick unleashed an army of lawyers in Pennsylvania and tapped alumni of former President Donald Trump’s 2020 campaign to help them with behind-the-scenes combat over every vote.
The 3rd Circuit Court of Appeals ruled on Friday that the state’s laws requiring ballots be dated by the voter was “immaterial” under a federal statute that originated with the Civil Rights Act of 1964 — meaning it should have no bearing over whether ballots are accepted or rejected.
But the court did not release its full formal opinion, so there has been uncertainty on how — or whether — to apply its finding to other elections aside from that 2021 judgeship contest. In the days following the judgment, the Department of State has also not yet issued guidance to election officials on how to deal with undated ballots in Tuesday’s primary
The circuit court may not be the final say on the order. One of the parties in the case — David Ritter, a candidate in that judicial race — asked the court on Monday to stay its judgment, signaling that there would likely be an appeal to the U.S. Supreme Court.
Hours after the judgment was issued Friday, McCormick’s campaign sent a letter to Pennsylvania’s 67 counties arguing that undated ballots should be tallied and requesting a hearing if election boards declined to count them. Oz’s team followed suit with its own letter to counties, making the case that they should be rejected….