PHILADELPHIA — A state appellate court on Thursday agreed with Pennsylvania GOP Senate candidate David McCormick and ordered Pennsylvania counties to tally more than 800 undated mail ballots and include them in the vote totals they report for the neck-and-neck Republican primary race between McCormick and Mehmet Oz.
In a 40-page opinion, Renee Cohn Jubelirer, president judge of the Pennsylvania Commonwealth Court, described the state's practice of rejecting ballots that arrived without a required handwritten date from the voter on the outer envelope as a potentially unfair restriction of the right to vote.
"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," she wrote.
Her ruling came as a result of a lawsuit filed by McCormick as he sought to have those ballots counted. His race against Oz is undergoing a mandatory recount in which he trails by fewer than 1,000 votes.
It also landed just days after U.S. Supreme Court Justice Samuel A. Alito Jr. injected a new layer of uncertainty into the question of whether those ballots should be counted by temporarily staying a lower-court ruling ordering their inclusion in a separate case that shared many of the same facts as McCormick's case.
In the McCormick suit, Cohn Jubelirer issued a temporary injunction, noting that she believed McCormick's campaign stood a good chance of winning the case once it could be fully heard on its merits. But in a nod to the temporary status of her order, she instructed counties to submit two sets of election results to the state: one with the undated ballots included and one without.
Some counties had already done exactly what Cohn Jubelirer prescribed. That's what the state had requested last week. But counties run elections, and some disagreed with the state and had refused to open the undated ballots and include them in the results.
Before the order was released, one county elections official said Thursday she was waiting for some clarity from the courts before touching the ballots, which were sitting in a safe, unopened. Another said he didn't want to reject the undated ballots — he just didn't think the law allowed him to count them unless a court told him to do so.
In arguing undated ballots should be counted, lawyers for McCormick's campaign maintained at a hearing Tuesday that the state's requirement that envelopes be dated by the voter for them to count was arbitrary and served no purpose — both in theory and in practice.
For instance, McCormick lawyer Ronald L. Hicks Jr. noted, some counties were counting ballots with the wrong date — such as the voter's date of birth — and only rejecting those that had no date at all.
His argument tracked similar logic laid out earlier this month by the U.S. Court of Appeals for the Third Circuit in a case centered on a contested 2021 judicial race in Lehigh County. In that case, the three-judge panel that heard the case also found the state's dating requirements "immaterial" to determining whether the voter was eligible to cast a ballot and ordered they be included in the final tally.
That was the order Alito stayed on Tuesday, pending a decision from the U.S. Supreme Court on whether it will hear a full appeal.
Oz's campaign, however, had urged Cohn Jubelirer not to upset the status quo. Noting that the state legislature had set the requirement and state courts — including the Commonwealth Court — had previously ruled to uphold it in prior election years.
But Cohn Jubelirer described those arguments as unpersuasive. She noted, for instance, that when the Pennsylvania Supreme Court upheld the ballot dating requirement in 2020, the justices were not apprised at how inconsistently counties were applying it.
"This case presents an interesting situation where the status quo is that every county board is making its own determination on what to do with these ballots," she wrote. "This raises the specter of the unequal treatment of qualified voters in Pennsylvania in that some qualified voters who happened to not date their exterior envelopes are having their vote counted and others are not."
She also acknowledged Alito's order in the Lehigh County case but noted that in issuing it, the Supreme Court justice had not weighed in on the merits of the Third Circuit's decision in the Lehigh County case and, thus, his move did not shift her opinion on the persuasiveness of the arguments the panel laid out.
Elections officials have estimated there are slightly more than 800 undated Republican mail ballots statewide.
While McCormick has done better than Oz with votes cast by mail, the mail ballots counted to date suggest he could receive just a few dozen additional votes if all undated ballots are counted.
