Attorneys for Senate candidate Dave McCormick on Monday found themselves in the atypical position of arguing in Commonwealth Court alongside Pennsylvania’s Democratic Secretary of State about which ballots to count.

The Republican and former hedge-fund executive is challenging the vote-counting standard that has determined the gap of 922 votes between him and his leading primary opponent, celebrity surgeon Mehmet Oz.

McCormick, who is behind in the count but leads Oz among absentee voters, contends that county election boards should consider as valid all mail-in ballots whose envelopes voters merely failed to date. Pennsylvania’s state courts have found that such ballots do not comply with state statute and should not count. The federal Third Circuit Court of Appeals recently ruled that undated ballots should be counted in a 2021 Lehigh County judicial election, though it is not yet clear whether that ruling will apply to other races. 

Outside of the GOP Senate primary, Republicans have consistently argued against counting undated absentee ballots and Democrats have consistently pushed for counting them. Those Democrats include state Attorney General Josh Shapiro and acting Secretary of State Leigh Chapman (even though the latter is technically the defendant in the Senate-election dispute since her agency must count ballots according to the state court decisions). 

“Our interest in this case is simply to ensure that all legal voters have the opportunity to have their votes counted,” attorney Michael Fischer said on behalf of the Pennsylvania Department of State. “And we agree with Mr. McCormick that, with respect to the ballots we’re talking about here which are ballots cast by legal voters that were received by 8 p.m. on Election Day — where there were no other infirmities, no other problems with the ballot, except for the fact that the voter did not handwrite the date on the outside of the ballot — our position … is that those ballots should be counted.”

Keystone State Democratic officials have argued for the past few years that invalidating ballots based on the absence of a date violates federal civil rights law barring voting rules that are “immaterial” to the legitimacy and timeliness of a citizen’s vote.

Counsel for the state and national Republican parties joined Oz’s lawyers in opposing McCormick’s lawsuit. They not only contested the trailing candidate’s litigation on the merits but suggested that no conceivable count of the undated absentee ballots could swing the race in favor of McCormick. Counties have so far only reported that 819 such ballots exist, though more might come to light.

“The voters of Pennsylvania have spoken,” John Gore, an attorney for Oz’s campaign, told the court.

Gore and other attorneys arguing for discounting undated ballots said that requiring a voter to write the date on which he or she voted helps to establish a voter’s residency and eligibility at the time he or she marked his or her ballot. They also averred that the rule does not violate anti-discrimination law insofar as it doesn’t render anyone ineligible to register to vote or to cast a vote and it doesn’t target anyone on a demographic basis.

In any case, a recount of the undisputed ballots cast on or before the May 17 primary is underway and must be completed by June 7, with results expected to come out the following day.

While Oz and McCormick differ on which vote-counting standard should be used, neither has alleged fraud or other misconduct that would impugn the integrity of this election. This is in contrast to the 2020 presidential election, in which Donald Trump contested Joe Biden’s 80,555-vote win in Pennsylvania. 

“I’m heartened to hear that there’s essentially agreement that this primary was a free and fair election – that is very heartening – and [I] recognize the diligence and hard work of all of our county boards of election that work so tirelessly in order to assure that we do have the free and fair elections,” Commonwealth Court Judge Renee Cohn Jubelirer said as the hearing concluded.

The judge declined to render an immediate decision and said she would take time to review the arguments and evidence presented by the plaintiff’s and defense’s counsel.

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Bradley Vasoli is managing editor of The Pennsylvania Daily Star. Follow Brad on Twitter at @BVasoli. Email tips to [email protected].