A whirlwind day in the courts upended the Pennsylvania Senate Republican primary on Tuesday, when the U.S. Supreme Court stepped in to stay a critical federal ruling just hours after attorneys for both former hedge fund CEO David McCormick and celebrity doctor Mehmet Oz met in state court to fight over whether so-called “undated” ballots should be tallied in a closely divided contest.
The closely watched race between Oz and McCormick is already in a recount, which state election officials officially ordered last week. Before the recount began, Oz led McCormick by fewer than 1,000 votes. Separately on Tuesday, McCormick’s campaign said it plans on filing litigation in the state seeking to force a hand recount of ballots in a dozen counties.
The issue during Tuesday’s arguments was a narrow one: ballots where voters did not write a date on their ballots’ outer envelope. Those ballots were thrust into the spotlight for the Senate race after a federal court ruled earlier this month that similarly situated ballots should be counted for a 2021 county judicial election.
Following that federal court’s lead, McCormick sued to require election officials to count undated ballots from the Senate primary earlier this month. Oz intervened in the case to object to such an order, arguing that state law precludes them from being tallied.
But late Thursday afternoon, Supreme Court Justice Samuel Alito stayed the lower court’s ruling that was central to McCormick’s arguments, pending “further order of the undersigned or of the Court.” Alito’s order came just hours after a deadline he set asking parties in the case to file briefs about the stay, which was requested by one of the judicial candidates involved in the suit.
Almost concurrently with Alito’s stay, the Pennsylvania state Supreme Court dealt another blow to McCormick. There, the court declined to exercise its “King’s Bench Powers” to hear the case directly, instead of having it wind its way through the lower court system.
It was a rapid change of direction from just earlier in the afternoon, where a lower state court heard arguments from the campaigns about counting the undated ballots. In questioning attorneys for both candidates and the Department of State, Commonwealth Court Judge Renee Cohn Jubelirer seemed at times receptive to the argument that the undated ballots should be counted.
She asked if there was any alleged fraud related to the ballots — there was none — and noted that the lack of a date on the ballots seemed more inadvertent rather than an intentional omission.
“Have you ever made a mistake when you put a date on something?” she asked Oz’s attorneys. “I know I have. … Should that defeat a person’s ability to vote?”
The court arguments came a week after the Department of State — which also supports McCormick’s position in the suit — told counties that it believed the undated ballots should be counted. However, the guidance issued by the state election officials early last week noted the significant legal uncertainty surrounding the issue, and suggested that the undated ballots should remain segregated from the rest of the ballot pool in case a court decides otherwise.
At the end of the hearing, Cohn Jubelirer said she would not be issuing an order immediately from the bench, promising to review Tuesday’s arguments and issue something “as quickly as possible.”
The legal fight has led to the unusual circumstance of pitting a potential general election candidate against their own party. The Republican National Committee and state Republican Party intervened in McCormick’s case to oppose it. Both state and national Republicans stressed that their opposition was on procedural grounds, and that they will support McCormick in the event he wins the nomination.
The number of ballots at the center of this litigation is small. Last week, Pennsylvania’s Department of State said that 65 of the state’s counties collectively reported 860 undated Republican mail ballots. (There are 67 counties in total.)
John Gore, an attorney for Oz, argued that the court should not consider a decision on those undated ballots if there was not enough to close the gap between the two candidates. That was an argument that Ron Hicks, who represented McCormick, rejected, saying that the ballots could impact the current gap “significantly.”
Oz is not waiting for the completion of the lawsuits or the recount. On Friday, he declared himself the “presumptive” party nominee, despite the recount. (Media outlets — including POLITICO — do not typically declare a winner while a recount is in progress.)
Recounts usually do not change the results of an election, even in incredibly close contests. But election officials have said that they are an important measure to both ensure the accuracy of the original count and catch any mistakes, and to increase public trust in elections.
Counties must begin the recount process by Wednesday, and it must be wrapped up by June 7.
The McCormick campaign also said it is seeking a hand recount in specific voting precincts in Allegheny, York, Centre, Chester, Cumberland, Erie, Lancaster, Monroe, Schuylkill, Delaware, Bucks and Westmoreland counties. Jess Szymanski, a McCormick spokesperson, said the campaign is “reserving the right” to request countywide hand recounts within those counties as well.
Casey Contres, Oz’s campaign manager, said “the Dr. Oz campaign continues to be highly confident that they received the most votes and the recount will demonstrate that just like the initial count did.”
The undated ballot case in Pennsylvania from McCormick is trailing behind the federal court case that kicked off the skirmish of the undated ballots. Earlier this month, the Third Circuit ordered that “undated” ballots should be counted for a county judgeship election, ruling that the dating requirements in state law were “immaterial” and should not play a role in determining if a ballot is valid.
Undated ballots are ballots that do not have a handwritten date from a voter on their outer envelope, but were otherwise received by election officials by the ballot return deadline. The date on the ballot is not used to determine when ballots were received by election officials — officials in the state typically stamp ballots at the time they were received. McCormick’s campaign, echoing the Third Circuit ruling, argued that the date on the ballot — or lackthereof — is immaterial to determining the validity of the ballots. Oz and the state and national party argued that it served other valid purposes.
On Friday, the Third Circuit released its formal opinion in that case, which set off a ticking clock for those looking to challenge the court’s decision.
Federal law ensures “qualified voters were not disenfranchised by meaningless requirements that prevented eligible voters from casting their ballots but had nothing to do with determining one’s qualifications to vote,” the opinion read. “Ignoring ballots because the outer envelope was undated, even though the ballot was indisputably received before the deadline for voting serves no purpose other than disenfranchising otherwise qualified voters. This is exactly the type of disenfranchisement that Congress sought to prevent.”
The court’s opinion then wrote that the dating requirements in Pennsylvania state law was “immaterial,” and that undated ballots should be counted for the county election.
Shortly after the formal opinion, one of the county judicial candidates asked the U.S. Supreme Court to stay the lower court’s decision.
The application cited, in part, the effect the Third Circuit ruling was having on the Senate and other close primary contests as a reason it should be set aside.
“The Third Circuit’s decision has already reverberated throughout the State,” the application reads. “The judgment also came down just days after Pennsylvania’s 2022 primary elections. Several of those races were decided by slim margins, and the Third Circuit’s order to count undated ballots could change the outcomes.”
Oz weighed in on that stay request in front of the U.S. Supreme Court, as well.
“Given Mr. McCormick’s and the Acting Secretary’s reliance on the Third Circuit’s decision, a stay in this case would serve the public interest by preventing the rules of not just one, but two, elections from being changed after the fact,” attorneys for Oz wrote in a friend of the court briefing filed on Monday.
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