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Pennsylvania court hears arguments over contested mail-in ballots in GOP U.S. Senate primary

Dauphin County election office employees demonstrate how they sort ballots as the Dauphin County Commissioners hosted a preview on May 4, 2022 of how the elections office will handle ballots on primary day.
Jeremy Long
Dauphin County election office employees demonstrate how they sort ballots as the Dauphin County Commissioners hosted a preview on May 4, 2022 of how the elections office will handle ballots on primary day.

Republican U.S. Senate candidates David McCormick and Mehmet Oz are arguing over whether a group of mail-in ballots from May’s primary election should be counted. McCormick sued over the issue earlier this month – and on Tuesday, lawyers for both men made their case before Commonwealth Court Judge Reneé Cohn Jubelirer.

The hours-long hearing took place as counties across Pennsylvania were re-counting hundreds of thousands of GOP ballots cast in the May 17 primary. The Department of State ordered a recount last week, because the race is legally too close to call: a mere 925 votesseparated the candidates at press time.

At issue are the mail-in ballots of around 800 Republicans, who either forgot to write the date they submitted their vote on an outside envelope or made a mistake when they wrote it. Both instances are not allowed under state election law – but it’s not clear whether that alone is enough to stop those votes from being counted.

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A decision could complicate the already razor-thin contest. It’s not clear how many have already been counted or what counties would have to do if the judge rules them invalid.

McCormick’s legal team on Tuesday said it polled all 67 counties on how each is handling the issue, and reported some election boards have already added them to their final tabs. Others, the lawyers said, are ignoring Department of State guidancethat says counties have to separately count ballots with missing or incorrect dates.

McCormick’s case

The former hedge fund CEO’S campaign legal team is focusing on what’s already been said about mail-in ballots with handwritten date issues.

“The timeliness of a ballot has nothing to do with the date the voter puts on his ballot,” lawyer Charles Cooper said.

Along with guidance from the state, Cooper and others also pointed to a federal appeals court decision. Earlier this month, the U.S. Court of Appeals for the 3rd Circuit ruled in a case involving Lehigh County ballots that a handwritten date is “immaterial” and they should be counted.

On Tuesday evening, the U.S. Supreme Court temporarily froze that decision, signaling it may examine the issue itself. The ruling may affect the Oz-McCormick case, but does not involve either campaign directly.

McCormick’s lawyers said counties rely on things like postmarks to figure out if a ballot is on time. Plus, they said, federal civil rights law doesn’t let states reject ballots on small technicalities.

“It [federa law] prohibits the denial of the right to vote of any individual in any election because of immaterial errors,” Cooper said.

A lawyer for the Department of State argued handwritten dates are only a formality, and disqualifying a vote over a date harms voters more than it helps county election boards.

“[It] doesn’t prevent fraud, or double voting, or [speak] to the eligibility of the voter,” state Deputy Attorney General Michael Fischer said.

Oz’s case

Oz’s legal team is arguing the date rule is just as important as other requirements — like those for secrecy envelopes.

“There are all kinds of laws that disqualify someone from voting, which do not disenfranchise someone, but just enforce the rules for voting,” lawyer John Gore said. Gore’s law firm, Jones DAY, filed at least one lawsuit contesting the results of the 2020 election.

Gore pointed out even if McCormick captured all of the 800 or so ballots in question, they wouldn’t be enough to give him a win. So, he noted, counties shouldn’t be made to count them. At best, Gore argued, McCormick would still be a few dozen votes short of making up his deficit of more than 900 votes.

The hearing was punctuated by Gore telling Judge Cohn Jubelirer the May primary was “free and fair.” The statement comes as Republicans have been consistently balking at the state’s no-excuse mail-in voting law, known as Act 77. Counties followed the law during the primary despite a Commonwealth Court ruling declaring it unconstitutional.

“We’re not aware of any allegation or evidence of fraud or irregularity or impropriety in this election,” Gore said. “This was a free and fair election. The May 17, 2022 Republican primary election was a free and fair election…conducted under the rules of the General Assembly.”

Oz himself has not directly condemned Pennsylvania’s election rules, but said during a debate that the GOP should not “move on” from contesting the 2020 election. No evidence has surfaced calling the results of the presidential contest into question.

Pennsylvania Republicans, including most of the party’s candidates for governor, have made dismantling or overturning Act 77 a cornerstone policy goal. Former President Donald Trump, who endorsed Oz earlier this year, has also seethed over the law.

Deciding “definitively”

It’s not clear when the Commonwealth Court will rule in the Oz-McCormick dispute, given the Pennsylvania Supreme Court’s stay in another case involving mail-in ballots with date issues. But a lawyer for Luzerne County asked the Court to be as clear as possible in its decision because of the ongoing recount.

“It’s in the interest of our county that the decision be definitive,” that lawyer said. “The [recount] burden on the institutions of our county is significant.”

According to the Department of State, the recount must be finished by June 8th.