The Republican Party has sided against Pennsylvania Senate candidate David McCormick, who is suing to make county election boards count undated mail-in ballots in his too-close-to-call race against TV doctor Mehmet Oz.
In a lawsuit that could go all the way to the U.S. Supreme Court, McCormick's campaign is seeking to have a recent federal appeals court decision enforced that would require mail-in ballots turned in without a handwritten date on the return envelope counted. He currently trails Oz by fewer than 1,000 votes and appears to have a slight advantage over his rival in mail-in ballots.
Oz's campaign, which was endorsed by former President Donald Trump, contends that the ballots should not be counted because they were not dated, as required by state law. The national and state Republican Parties weighed in Monday, taking Oz's side and announcing they would go to court to oppose McCormick.
“The RNC is intervening in this lawsuit alongside the Pennsylvania GOP because election laws are meant to be followed, and changing the rules when ballots are already being counted harms the integrity of our elections," said RNC Chief Counsel Matt Raymer in a statement.
"Either of Pennsylvania’s leading Republican Senate candidates would represent the Keystone State better than a Democrat, but Pennsylvania law is clear that undated absentee ballots may not be counted," he added.
The McCormick campaign's lawsuit argues that Republican voters would be disenfranchised by a "technical error" if the undated ballots are not counted. It says that county election boards should be bound by a 3rd U.S. Circuit Court of Appeals decision issued Friday that said undated mail-in ballots must be counted for a 2021 Pennsylvania county judge race.
A three-judge panel had ruled that state law requiring a handwritten date next to a voter's signature on the outside of return envelopes was "immaterial." Since mail-in ballots are postmarked and stamped when they are received by county election offices, the court said there was no reason not to count undated ballots.
Democratic Gov. Tom Wolf's administration told counties Tuesday that undated ballots must be counted, citing the appeals court's decision. However, the governor's office instructed counties to keep undated ballots separate, in anticipation that the case could be appealed to the Supreme Court and possibly reversed, the Associated Press reported.
As of Tuesday, Oz held a 997 vote lead over McCormick out of more than 1.3 million votes cast. Separated by just 0.07 percentage points, the race will trigger an automatic recount under Pennsylvania law that may not be completed until June 8.
Whoever wins the Republican primary will face Democratic Lt. Gov. John Fetterman in the race for retiring Republican Sen. Pat Toomey's seat.