PHILADELPHIA — The U.S. Supreme Court has pressed pause on the ongoing debate over whether to count undated mail ballots, issuing an emergency stay Tuesday while it decides whether to hear an appeal on the issue.
The two-sentence order — issued by Justice Samuel A. Alito Jr., who oversees matters for the court arising from Pennsylvania — injected a new level of uncertainty in a dispute that has roiled the razor’s-edge Senate primary campaign between David McCormick and Mehmet Oz.
The order was filed without explanation for the justice’s decision just hours after a lengthy hearing before the Pennsylvania Commonwealth Court on the McCormick campaign’s bid to have such ballots — which arrived on time but are missing the required handwritten date on the outer envelope — counted in his race.
The full impact of Alito’s order remains uncertain, but it is certain to re-stoke debate on both sides.
Technically, the Supreme Court order only stays a ruling from the U.S. Court of Appeals for the 3rd Circuit, which ruled earlier this month that such ballots should be counted in a contested 2021 judicial race in Lehigh County.
The panel found that the state’s dating requirement to be immaterial to whether the voter was eligible to cast the ballot.
That original ruling set off a scramble among state and county election officials to determine whether the logic of the court’s decision in the Lehigh case should apply more broadly in other elections, including this year’s May 17 primary.
McCormick has sued in Commonwealth Court, arguing that the only logical conclusion is that the same reasoning should apply to his race and that undated mail ballots should be included in the final tallies.
Oz has opposed, and filed a brief before the Supreme Court over the weekend arguing calling the 3rd Circuit’s decision “thinly reasoned” and “erroneous.”
His attorneys argued failure to issue a stay and potentially allowing the rules of the election to change mid-count risked undermining the public’s confidence in the results.
But just like the original 3rd Circuit ruling injected uncertainty into the discussion, argument over the scope of Alito’s stay — and what impact it should have on this year’s races — is likely to fester in the coming days.
Still, the stay will likely bolster Oz’s case before the Commonwealth Court — at least in the short term — as he’s asked the court to avoid making any sweeping rulings that could impact future elections.
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(Staff writer Andrew Seidman contributed reporting.)
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