HARRISBURG, Pa. — The U.S. Supreme Court on Tuesday temporarily blocked the counting of some mail-in ballots in Pennsylvania, an order that could affect the tight Republican Senate primary between former hedge fund CEO David McCormick and celebrity heart surgeon Dr. Mehmet Oz.
An order from Justice Samuel Alito paused a lower-court ruling in a lawsuit over a disputed 2021 local court election that would have allowed the counting of mail-in ballots that lacked a handwritten date.
The 3rd U.S. Circuit Court of Appeals in Philadelphia had ruled that the state election law’s requirement of a date next to the voter’s signature on the outside of return envelopes was “immaterial” and no reason to throw out such ballots.
Based on that ruling, the state had advised counties to count those ballots in the race between McCormick and Oz, and McCormick promptly went to court to force counties to follow through.
The race is currently in the midst of a statewide recount until June 8, with Oz ahead of McCormick in the initial tally by 922 votes out of more than 1.3 million cast — even though some counties are still not done counting every ballot cast in the May 17 primary election.
As McCormick scrounges for ballots to make up the gap with Oz, Alito’s order could freeze McCormick’s lawsuit in Pennsylvania state courts.
Pennsylvania’s Department of State — which oversees elections — did not immediately say Tuesday whether it will change its guidance to counties on how to handle the ballots.
The U.S. Supreme Court’s action, called an administrative stay, freezes the matter until it can give the case further consideration. There is no timeline on the high court’s undertaking and the clock for McCormick is ticking down to June 8.
McCormick’s campaign insisted that Alito’s order does not affect its case in the state’s Commonwealth Court and that the federal appeals court opinion “remains the persuasive authority” on the federal Civil Rights Act provision on which it based its decision.
McCormick has been doing better than Oz among mail-in ballots, and his campaign has said it counted about 860 undated Republican mail-in ballots received by 65 of the state’s 67 counties. Counting the undated ballots will not put McCormick over the top against Oz, but it could help narrow the race.
Some counties have already agreed to count the undated mail-in ballots, while others have not, saying they are waiting for legal clarity.
The state law requires voters to write a date on the envelope in which they mail in their ballots. However, the handwritten date is not used to determine whether the ballot was cast on time, since the envelope is postmarked by the post office and timestamped by counties when they receive it.
In any case, counties have acknowledged accepting ballots with wrong dates.
Pennsylvania’s state Supreme Court declined McCormick’s request to intervene Tuesday, just after a judge in the lower statewide Commonwealth Court heard three hours of arguments in the case.
In the meantime, McCormick’s campaign on Tuesday asked the Commonwealth Court for a hand recount in 150 precincts across 12 counties.
McCormick’s campaign said it was targeting precincts where there was an unusually large proportion of machine-read ballots that recorded no vote in the Senate GOP primary. That could point to errors in the electronic scanners, McCormick’s campaign said.