(WHTM) — The Commonwealth Court of Pennsylvania has instructed counties to segregate ballots in the Pennsylvania GOP Primary that are missing a dated exterior envelope and report two vote tallies (one count that includes the ballots with missing dates, one that does not) to Leigh M. Chapman, Acting Secretary of the Commonwealth.
“The absence of a handwritten date on the exterior envelope could be considered a ‘minor irregularity’ without a compelling reason that justifies the disenfranchisement of otherwise eligible voters,” said Judge Cohn Jubelirer in her opinion.
Election officials have estimated that there are approximately 880 undated ballots in question. The difference between Mehmet Oz and Dave McCormick is less than 1,000 votes.
Oz’s campaign, the Republican National Committee, and the state Republican Party have opposed McCormick in court. Last week Oz declared victory in the race, calling himself the presumptive nominee set to face Democrat John Fetterman in November.
Wednesday’s move comes one day after the U.S. Supreme Court temporarily blocked the counting of some mail-in ballots in Pennsylvania.
An order from 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.
The 3rd U.S. Circuit Court of Appeals in Philadelphia had ruled that the state election law’s requirement of a date next to the voter’s signature on the outside of return envelopes was “immaterial” and no reason to throw out such ballots.
As McCormick scrounges for ballots to make up the gap with Oz, Alito’s order could freeze McCormick’s lawsuit in Pennsylvania state courts.
Pennsylvania’s Department of State — which oversees elections — did not immediately say Tuesday whether it will change its guidance to counties on how to handle the ballots.
The U.S. Supreme Court’s action, called an administrative stay, freezes the matter until it can give the case further consideration. There is no timeline on the high court’s undertaking and the clock for McCormick is ticking down to June 8.
McCormick’s campaign insisted that Alito’s order does not affect its case in the state’s Commonwealth Court and that the federal appeals court opinion “remains the persuasive authority” on the federal Civil Rights Act provision on which it based its decision.
McCormick has been doing better than Oz among mail-in ballots, and his campaign has said it counted about 860 undated Republican mail-in ballots received by 65 of the state’s 67 counties. Counting the undated ballots will not put McCormick over the top against Oz, but it could help narrow the race.
Some counties have already agreed to count the undated mail-in ballots, while others have not, saying they are waiting for legal clarity.
The state law requires voters to write a date on the envelope in which they mail in their ballots. However, the handwritten date is not used to determine whether the ballot was cast on time, since the envelope is postmarked by the post office and timestamped by counties when they receive it.
In any case, counties have acknowledged accepting ballots with wrong dates.
McCormick’s campaign said it was targeting precincts where there was an unusually large proportion of machine-read ballots that recorded no vote in the Senate GOP primary. That could point to errors in the electronic scanners, McCormick’s campaign said.