The U.S. Supreme Court is wading into Pennsylvania’s too-close-to-call Republican primary for U.S. Senate.
In an order from Justice Samuel Alito issued late Tuesday, the court temporarily paused a lower court’s ruling that would have allowed counties to tabulate undated mail ballots.
In a race this close, that decision could be significant.
Ahead of the commencement of an automatic statewide recount in the race, TV doctor Mehmet Oz led former hedge fund executive David McCormick by less than 1,000 votes, and McCormick has been searching for additional mail votes — in which he has, on average, done better than Oz — to make up the difference.
Undated mail ballots, in which a voter sent the ballot to their county elections office on time, but didn’t hand-date the envelope, or marked the wrong date, are a big part of the McCormick campaign’s strategy.
Under Pennsylvania law, which says voters “shall” date their ballots, they technically shouldn’t be counted. But the commonwealth’s Department of State had still advised counties to tabulate those ballots in the 2022 primary, basing that advice on the now-paused decision from the 3rd U.S. Circuit Court of Appeals in Philadelphia.
The decision concerned a local court election from 2021. The court had ruled that because handwritten dates aren’t actually used to verify whether a ballot is legitimate, they can’t be used as a reason to throw out ballots under the Civil Rights Act.
The Supreme Court’s temporary freeze on that decision could affect the state’s advice, and it could also affect a separate, similar federal lawsuit that McCormick recently filed in an attempt to get counties to tabulate undated mail ballots.
Mail ballots aren’t the only place where the McCormick campaign is searching for votes. His campaign announced Tuesday that he’s also asking for a hand recount in certain precincts.
Pennsylvania automatically performs recounts if statewide elections come down to a margin of 0.5% or less. McCormick and Oz are well within that range, and the automatic recount began last week.
But McCormick is also asking for extra scrutiny in certain precincts in 12 counties: Allegheny, Bucks, Centre, Chester, Cumberland, Delaware, Erie, Lancaster, Monroe, Schuylkill, Westmoreland, and York.
A senior official on the campaign, speaking to reporters on condition of anonymity, said the campaign had seen several potential issues with the vote count, like differences between state and county vote totals, and still isn’t sure exactly how many votes were cast in the election.
The official added that the campaign selected counties for a hand count based on notable discrepancies, like big differences in the number of votes cast for governor and U.S. Senate in a given precinct.
The campaign said it would file the request with the Commonwealth Court Tuesday, and will pay for the hand recounts precinct-by-precinct.
There’s no evidence of fraud in the election, and McCormick’s campaign said it isn’t necessarily alleging any.