PHILADELPHIA — The national and state Republican parties vowed Tuesday to oppose GOP Senate candidate David McCormick in his lawsuit seeking to have potentially hundreds of contested mail ballots counted in his neck-and-neck primary race against Mehmet Oz.
But with a state-mandated recount looming, an undeterred McCormick pushed the state’s highest court to take up his case — even if that meant standing at odds with his party.
At issue are several thousand mail ballots which arrived on time but were missing the required handwritten date on the outer envelope. Previously, they would have been rejected under state law.
But a federal appellate court ruling last week that the state’s requirement of a date is irrelevant to whether a vote was legitimately cast has thrown that certainty into doubt and posed a last-minute issue for elections officials about whether to include such undated ballots in their official tallies.
In the Senate primary, McCormick hopes those votes can make up the difference in a race in which he currently trails Oz by fewer than 1,000 votes. That slim margin will trigger an automatic recount, which state officials are expected to announce in Harrisburg on Wednesday, a process that could take up to two weeks.
Yet the questions McCormick is raising in court extend beyond his race with Oz and threaten to divide a party that has made strict control over mail voting central to its identity.
“Pennsylvania law is clear: Undated absentee ballots may not be counted,” said Ronna McDaniel, chairwoman for the Republican National Committee in a tweet announcing her party’s intent to oppose McCormick in court. “Changing the rules while votes are being counted undermines the integrity of our elections and sets a terrible precedent for future elections.”
An RNC lawyer insisted the party’s decision to fight McCormick in court was not an endorsement of either candidate but a stand for respecting state election laws.
Jim Shultz — a top GOP operative in the state, former Trump administration official and adviser to McCormick’s campaign — shot back in an unusual public rebuke, questioning the decision by Pennsylvania GOP Chairman Lawrence Tabas to join in the fight as well.
“This is quite surprising since it is his job to grow GOP voters and bring the party together, not to cast them aside and drive wedges,” said Schultz, who has long helped run Republican campaigns in the state.
In his court filings, McCormick has adopted a position that Democrats have advanced since Pennsylvania approved no-excuse mail voting in 2019.
He asked the Pennsylvania Commonwealth Court on Tuesday to issue an emergency order requiring all counties to include the undated ballots in their counts. When it did not respond by late afternoon, he turned to the state Supreme Court, filing an emergency petition urging it to take over the case.
“The right to vote is sacrosanct,” McCormick’s attorneys wrote in filings Tuesday. “The handwritten date on an exterior mailing envelope that contains a receipt-stamp ... is anything but.”
Traditionally, the Commonwealth Court has issued more conservative rulings when it comes to questions of which votes should be counted, while the Democratic majority on the state Supreme Court has often ruled more liberally in favor of counting ballots where the voters’ intentions were clear, even if they didn’t adhere to every technicality required under the law.
The state’s high court has weighed in on the question of undated ballots before. In a complex 2020 ruling, the justices ruled that they could be counted for that election only. Three justices interpreted the law to allow for their counting, three others concluded the law didn’t allow it. The seventh, Justice David Wecht, a Democrat, split the difference saying counties should allow them that year only but reject them in the future once voters had better instructions about dating ballots and the consequences of failing to do so.
The exact number of ballots at issue remains unclear and state officials have not released an official number. Whatever the figure, it is bound to be fraction of the more than 1.3 million votes cast in the May 17 GOP primary.
For example, in Allegheny County — the second largest by population in the state — officials there said Tuesday that they received 218 undated mail ballots, only 36 of which came from registered GOP voters. In Bucks County, the fourth largest, only 45 of 168 undated ballots received came from Republican voters.
And with the state’s ongoing vote tally showing Oz’s lead at just 985 votes Tuesday evening and McCormick doing better with mail ballots than his opponent, those votes could make a significant difference in determining who will oppose Democratic Senate nominee John Fetterman in November.
For now, state officials have advised counties to tally the undated ballots but keep those figures separate from their official counts, pending further guidance from the courts.
But because elections in Pennsylvania are run by counties, not the state, each county can make their own decision, setting up the prospect of a patchwork of conflicting policies.
“These are legitimate votes where the voter didn’t hand write the date on them, but they were time-stamped,” McCormick said Tuesday in an interview on "The Hugh Hewitt Show." “If they were time-stamped, why would anyone want to throw those votes out?”
