By Melanie Zanona, CNN
Pennsylvania Senate candidate Dave McCormick is pushing for undated mail-in ballots to be counted in his neck-and-neck Republican primary against Mehmet Oz following a court ruling on a different election.
The 3rd US Circuit Court of Appeals in Philadelphia ruled Friday that undated ballots should be counted in a November 2021 election for a county judgeship. The three-judge panel has not yet issued a formal opinion, and the secretary of state has not yet issued guidance about whether this ruling should apply to other elections, including Tuesday’s primary race. It’s also unclear how many ballots were submitted without a date in the Senate GOP contest in Pennsylvania.
But McCormick, a former hedge fund manager who has outperformed the Donald Trump-endorsed Oz when it comes to mail-in ballots, is seeking to use the ruling to his potential advantage.
A law firm representing McCormick’s campaign wrote to all 67 counties in the commonwealth and advised them to count any undated ballots in light of the ruling from the 3rd US Circuit Court of Appeals, and said it would request a formal hearing on the matter if that doesn’t happen.
“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,” McCormick’s lawyer said in an email, which was obtained by CNN. “To the extent you are not willing to provide this advice, we ask for a formal hearing before your Boards on this issue.”
Oz currently holds a narrow lead over McCormick; a recount would be automatically triggered if the race is within half a percentage point.
A McCormick campaign aide told CNN: “We’re glad votes continue to be counted.”
Oz’s campaign plans to oppose McCormick’s request, according to Oz campaign manager Casey Contres, who accused McCormick’s legal team of using a Democratic playbook, warning it could have “long term harmful consequences for our elections in the Commonwealth of Pennsylvania.”
“Dr. Mehmet Oz continues to respectfully allow Pennsylvania’s vote counting process to take place and puts his faith in the Republican voters who we believe have chosen him as their nominee,” Contres said in a statement. “That is why our campaign will oppose the McCormick legal team’s request that election boards ignore both Pennsylvania Supreme Court and state election law and accept legally rejected ballots.”
A spokesman for Pennsylvania’s Department of State said officials there “do not have an estimate of the number of impacted ballots” and “will be surveying counties to get that figure and issuing guidance to support them.”
But the spokesman also praised the appeals court ruling, saying, “We are pleased that the 3rd Circuit agreed with the Commonwealth’s interpretation of the statute, which will help ensure that voters who inadvertently fail to date their ballot are not disenfranchised by that error.”
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