Commonwealth Court orders counties to count segregated undated ballots, report two tallies to Department of State

Undated ballots that arrived on time in the Pennsylvania 2022 primary election will count toward official tallies in the narrow Republican U.S. Senate race. But a Commonwealth Court judge has ordered counties to track how many there are.

In a memorandum opinion issued Thursday by President Judge Renée Cohn Jubelirer, election officials were instructed to segregate and count the ballots — which arrived by 8 p.m. on Election Day but were missing a handwritten or correct date from the voter.

Local officials will then provide two vote tallies to acting Secretary of State Leigh Chapman, one including the votes from undated ballots and one that does not.

“The absence of a handwritten date on the exterior envelope could be considered a ‘minor irregularity’ without a compelling reason that justifies the disenfranchisement of otherwise eligible voters by not counting their timely received ballot,” Cohn Jubelirer wrote in the 40-page opinion, issued two days after hearing from lawyers for Dave McCormick, Mehmet Oz, and the Department of State.

McCormick, who is trailing Oz by less than 1,000 votes, filed a lawsuit last month, urging the court to uphold a decision issued by the 3rd U.S. Circuit Court of Appeals decision that undated — but timely — mail ballots should count in a 2021 Lehigh County judicial race.

Local officials have estimated roughly 880 mail ballots were returned on time but without a handwritten date or correct date on the envelope.

Attorneys for McCormick urged Commonwealth Court to embrace the federal court’s decision, saying that “every valid vote matters” and that voters should not be penalized for incorrectly or failing to date their mail ballot.

Cohn Jubelirer even admitted to making an error when dating documents.

But lawyers for Oz argued that the date requirement on a mail ballot is there for a reason, arguing that it is a requisite for voting.

U.S. Supreme Court Justice Samuel Alito stayed the decision from the 3rd U.S. Circuit Court of Appeals decision this week, leaving room for uncertainty in the tight Pennsylvania GOP primary. 

The legal challenges also come amid an automatic statewide recount in the Republican race, which will conclude next week.

286 MD 2022 – Memorandum Opinion Filed by PennCapitalStar on Scribd