Commonwealth Court hears arguments over counting undated Pa. mail ballots

The legal challenge brought by Dave McCormick aims to close the narrow gap by ensuring that counties count ballots received on time but were missing a date or were incorrectly dated

By: - May 31, 2022 3:05 pm

The Pennsylvania Judicial Center in Harrisburg (Capital-Star file)

In Commonwealth Court on Tuesday, attorneys for the two leading Republican U.S. Senate candidates and Pennsylvania election officials grappled with questions about whether ballots received by 8 p.m. on Election Day — but without the proper date — should count toward final results.

Less than 1,000 votes separate Mehmet Oz and Dave McCormick in the GOP primary race — a margin that prompted an automatic statewide recount in Pennsylvania. The legal challenge brought by McCormick aims to close the narrow gap by ensuring that counties count ballots received on time but were missing a date or were incorrectly dated.

“The date that matters is the date that it was received, not the date that is provided by the voter on the envelope,” Ron Hicks, an attorney for McCormick, argued before Commonwealth Court President Judge Renée Cohn Jubelirer.

Hicks argued that the gap between the candidates could change “significantly” if counties tabulate the ballots, urging the court to “embrace” the 3rd U.S. Circuit Court of Appeals decision that ruled mail ballots that were returned on time without a date should be counted in a 2021 judicial race in Lehigh County.

“There are several hundreds of these votes,” Charles Cooper, another attorney for McCormick, said. “The idea that this is some kind of gigantic fraudulent conspiracy not to date ballots is not plausible, I would think.”

The federal appeals court decision had nothing to do with the most recent election. But the Department of State, some Pennsylvania counties, and McCormick think it should still apply to the 2022 primary. Last week, the Department of State issued guidance to local election officials, advising counties to count undated ballots but keep them separate from results and tabulated votes.

During a press conference last week, acting Secretary of State Leigh Chapman said the guidance will “enable counties to arrive at an accurate count no matter what the courts decide.”

Lawyers for McCormick and the Department of State argued in Commonwealth Court that the handwritten date from voters casting their ballot by mail or absentee is a technicality. They’ve said that the timestamp from counties to indicate when a voter returned their mail-in ballot is what matters most.

“The more you look at what function the date serves, you see, it just doesn’t serve any purpose,” Michael Fischer, chief deputy attorney general, said, adding that the date most important for determining eligibility is Election Day. “There’s nothing in the Election Code that says a ballot without a handwritten date on it shall not, will not be counted.”

Fischer added that the General Assembly could have been more specific when drafting election laws; however, it was not.

As a backup position, Hicks asked the court to ensure that all 67 counties comply with the Department of State’s guidance and report mail ballots with missing or incorrect dates to the state agency.

John Gore, who represents Oz in the case, said the Department of State has not provided a clear number of how many undated ballots were returned in the 2022 primary election. He urged the court to wait until the recount is complete before issuing a decision. He added that additional time could allow the Department of State to ensure an accurate number and whether they would affect the outcome.

“Our point is that there are rules that govern how voting is done,” he said, adding that undated or incorrectly dated ballots should not count toward final votes.

Gore also urged the court to caution against changing the rules after an election is held.

The Republican National Committee and Pennsylvania Republican Party have taken Oz’s side in the case. Thomas King III, an attorney for the RNC and state Republican Party, said the Legislature should decide whether to write policy specific to counting undated mail-in ballots.

After the three-hour-long hearing, Jubelirer said she would issue a decision as quickly as possible.

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