A whirlwind day in court rocked Pennsylvania’s Republican Senate primary on Tuesday, when the US Supreme Court moved to stay a critical federal ruling just hours after lawyers for former hedge fund CEO David McCormick and famed doctor Mehmet Oz met in state court to fight over whether so-called “undated” ballots should be counted in a tightly divided contest.
The closely watched race between Oz and McCormick is already undergoing a recount, which state election officials officially ordered last week. Before the recount began, Oz led McCormick by less than 1,000 votes. Separately on Tuesday, McCormick’s campaign said it plans to file a lawsuit in the state seeking to force a manual recount of ballots in a dozen counties.
The issue during Tuesday’s arguments was narrow: ballots where voters did not write a date on the outer envelope of their ballot. Those ballots have come into the limelight for the Senate race after a federal court ruled earlier this month that ballots in the same situation should be counted for a county judicial election in 2021. At the initiative of that federal court, McCormick filed a lawsuit to compel election officials to count undated ballots from the Senate primary earlier this month. Oz intervened in the case to oppose such an order, arguing that state law prevents them from being counted.
But late Thursday afternoon, Supreme Court Justice Samuel Alito suspended the lower court decision that was at the heart of McCormick’s case, pending “further order from the undersigned or the Court.” Alito’s order came just hours after a TSWT he set for parties to the case to file suspension briefs, which was requested by one of the court contenders involved. in pursuit.
Almost simultaneously with Alito’s stay, the Pennsylvania State Supreme Court dealt McCormick another blow. There, the court declined to exercise its “King’s Bench powers” to hear the case directly, instead letting it work its way through the lower court system.
It was a quick change of direction from earlier that afternoon, when a lower state court heard the campaigns’ arguments about counting undated ballots. In questioning lawyers for the candidates and the State Department, Commonwealth Court Judge Renee Cohn Jubelirer sometimes seemed receptive to the argument that undated ballots should be counted.
She asked if there had been any alleged fraud related to the ballots – there was none – and noted that the absence of a date on the ballots seemed more unintentional than an intentional omission.
“Have you ever made a mistake when you put a date on something?” she asked the lawyers of Oz. “I know I have. … Should that stop a person from voting?
The closing arguments came a week after the State Department — which also supports McCormick’s position in the lawsuit — told counties it believed undated ballots should be counted. However, guidelines issued by state election officials early last week noted significant legal uncertainty surrounding the issue and suggested that undated ballots should remain separate from the rest of the ballot in case a court would decide otherwise.
At the end of the hearing, Cohn Jubelirer said she would not immediately issue a bench order, promising to review Tuesday’s arguments and release something “as soon as possible.”
The legal battle led to the unusual circumstance of pitting a potential general election candidate against his own party. Both the Republican National Committee and the state Republican Party have intervened in McCormick’s case to oppose it. Republicans in the state and nation stressed that their opposition was based on procedural reasons and that they would support McCormick if he won the nomination.
The number of ballots at the center of this dispute is small. Last week, the Pennsylvania State Department said 65 of the state’s counties collectively reported 860 undated Republican ballots. (There are 67 counties in total.)
John Gore, an Oz lawyer, argued that the court should not make a decision on those undated ballots if there weren’t enough to close the gap between the two candidates. It was an argument that Ron Hicks, who represented McCormick, dismissed, saying the ballots could have a “significant” impact on the current gap.
Oz does not wait for the completion of the prosecutions or the recount. On Friday, he declared himself the party’s “presumptive” candidate, despite the recount. (The media – including POLITICO – generally does not declare a winner while a recount is in progress.)
Recounts don’t usually change the results of an election, even in incredibly tight contests. But election officials said it was an important step to both ensure the accuracy of the initial count and catch any errors, and to boost public confidence in the election.
Counties must begin the recount process by Wednesday, and it must be concluded by June 7.
The McCormick campaign also said it was seeking a manual recount in specific electoral districts in Allegheny, York, Center, Chester, Cumberland, Erie, Lancaster, Monroe, Schuylkill, Delaware, Bucks and Westmoreland counties. Jess Szymanski, a spokesperson for McCormick, said the campaign “reserves the right” to request countywide manual recounts in those counties as well.
Casey Contres, Oz’s campaign manager, said “The Dr. Oz campaign continues to be very confident of having received the most votes and the recount will demonstrate this, as will the initial tally.”
McCormick’s Pennsylvania undated ballot case lags behind the federal court case that sparked the undated ballot skirmish. Earlier this month, the Third Circuit ordered that ‘undated’ ballots be counted for a county judge election, ruling that dating requirements in state law were ‘meaningless’ and not should not play a role in determining whether a ballot is valid.
Undated ballots are ballots that do not have a voter’s handwritten date on their outer envelope, but were otherwise received by election officials before the ballot return TSWT. The date on the ballot is not used to determine when ballots were received by election officials—state officials typically stamp ballots at the time they were received. McCormick’s campaign, echoing the Third Circuit’s ruling, argued that the date on the ballot — or lack thereof — is immaterial in determining the validity of ballots. Oz and the State and National Party argued that it served other valid purposes.
On Friday, the Third Circuit issued its official opinion in the case, which set off a countdown for those seeking to challenge the court’s decision.
Federal law ensures that “qualified voters were not disenfranchised by meaningless requirements that prevented eligible voters from voting but had nothing to do with determining their qualifications to vote,” reads- one in opinion. “Ignoring the ballots because the outer envelope was undated, even though the ballot was unquestionably received before the voting TSWT serves no purpose other than to deprive otherwise qualified voters. This is exactly the type of disenfranchisement that Congress has sought to prevent.
The court notice went on to write that the dating requirements of Pennsylvania state law were “immaterial” and that undated ballots should be counted for the county election.
Shortly after the official notice, one of the county’s judicial nominees asked the United States Supreme Court to stay the lower court’s decision.
The application cited, in part, the effect the Third Circuit decision was having on the Senate and other nearby primary competitions as the reason it should be overturned.
“The Third Circuit’s decision has already reverberated across the state,” the app read. “Judgment also fell just days after the 2022 primary election in Pennsylvania. Many of those races were decided by narrow margins, and the Third Circuit’s order to count undated ballots could change the results.
Oz also weighed in on that stay request in the United States Supreme Court.
“Given that Mr. McCormick and the Acting Secretary are relying on the Third Circuit’s decision, a stay in this matter would serve the public interest by preventing the rules of not just one, but two elections from being changed after hit,” Oz’s attorneys said. wrote in a friend of the court briefing filed Monday.
The post Pa. GOP Senate race upended by court cases appeared first on Politico.