PHILADELPHIA — In a move that could help Mehmet Oz in his fight to become the GOP Senatorial nominee in Pennsylvania, a Philadelphia lawyer is preparing to ask the U.S. Supreme Court to block a lower court decision over undated mail ballots — injecting further uncertainty after a ruling that had already jolted a tight and unresolved Republican primary.
That ruling, released Friday afternoon by a three-judge panel of the U.S. Court of Appeals for the Third Circuit, had sent county elections boards, candidates, and lawyers scrambling as it appeared to suddenly allow them to count undated mail ballots that would have previously been rejected under state law.
Allowing that decision to go into effect before the Supreme Court can weigh in risks inviting chaos, attorney Joshua J. Voss, of the Kleinbard LLC, wrote in a motion Monday asking the circuit court to stay its order.
The request came as county elections officials are trying to figure out whether to count undated ballots in this election, with guidance from state officials pending and pressure from both the Mehmet Oz and David McCormick campaigns urging them in opposite directions.
Friday’s decision arose from a case centered on 257 mail ballots in Lehigh County from last November’s general election. Republican David Ritter appeared to win a county judicial seat by 74 votes, but counting the undated mail ballots could give Democratic candidate Zachary Cohen the win.
While state courts had ruled that state election law requires voters to handwrite a date on the outer envelope of their mail ballots — or else they must be rejected — the Third Circuit judges found that the date isn’t used in determining the legitimacy of a vote. After all, they noted, the county had accepted ballots with the wrong dates on them, as long as they were dated at all. These ballots were indisputably submitted on time -– they were date-stamped upon receipt.
The judges did not immediately release an opinion fleshing out the scope of their ruling, which they said would come later.
In his motion Monday, Voss asked them to delay implementation of their order until the Supreme Court could weigh in.
“Absent a stay, Ritter’s opponent could wrongly assume office, and Pennsylvanians will be subject to the power of an official who was seated in error,” Voss wrote. “Ritter asks the Court not to preemptively cut off his right to further review.”
Voss added that should the Third Circuit deny Ritter a stay, they would seek one from the Supreme Court directly.
A request for a stay would further complicate the current Republican Senate primary, in which Oz and McCormick were separated by less than 1,000 votes Monday afternoon — well within recount territory under state law.
McCormick, who has been trailing in the vote count, has pushed to count as many votes as possible — every additional vote is an opportunity to help close the gap — and he’s also done better with mail ballots than Oz has.
Less than 90 minutes after the appeals court ruling Friday, a lawyer for McCormick sent an email to all 67 counties, attaching the order and asking them to count the undated mail ballots.
“We trust that in light of the Third Circuit’s judgment you will advise your respective boards to count any and all absentee or mail-in ballots that were timely received but were set aside/not counted simply because those ballots lacked a voter-provided date on the outside of the envelope,” wrote attorney Ron Hicks. “To the extent you are not willing to provide this advice, we ask for a formal hearing before your boards on this issue.”
The Oz campaign fired back Saturday night, with a lawyer sending a similar email to the counties — but in the opposite direction.
“The order … does not authorize election officials to ignore Pennsylvania law or to count mail-in or absentee ballots lacking a voter completed date in the May 2022 primary election,” wrote lawyer Britain R. Henry. “In the first place, that judgment is not final and is subject to further review.”
Voss, the attorney representing Ritter, works at a law firm that also represents Oz. A successful appeal in Ritter’s case would benefit Oz’s position for undated ballots to be thrown out in his race.
The Pennsylvania Department of State was poised to issue guidance to counties Monday on how the Third Circuit’s ruling in Ritter’s case should apply to this year’s vote count.
But a stay in the Ritter case could further muddle the question — as it did in the 2020 presidential election, when Supreme Court intervention left about 10,000 challenged mail ballots in limbo for weeks after the vote was certified.
In that case, Samuel A. Alito Jr. — the Supreme Court justice who oversees matters for the court in Pennsylvania, New Jersey and Delaware — ordered Pennsylvania counties not to include mail ballots that arrived during a three-day grace period after Election Day in their official tallies until the court could decide whether it would take up a challenge to their legitimacy.
The court ultimately declined to hear the case but made that decision well after state election officials were forced to certify the state’s results without them, because of the stay. The votes at issue wouldn’t have changed the outcome of President Joe Biden’s victory in the state but also were never included in the certified vote.
In the current election, the margins between Oz and McCormick are so narrow that the fate of the undated ballots could play a role in determining the winner as they fight over every possible vote.
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