With GOP U.S. Senate results still unknown, Pa. election officials issue guidance amid litigation

State election officials have instructed counties to process — but not count — ballots returned without a postmark

By: - May 24, 2022 2:48 pm

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Pennsylvania voters still don’t know who won last week’s Republican U.S. Senate primary. And as the contest likely heads toward a recount, state election officials have instructed counties to process — but not count — ballots returned without a postmark in anticipation of litigation in the tight race.

The Department of State, which has election oversight, issued guidance to counties Tuesday morning, informing them what to do with undated ballots, meaning those returned by 8 p.m. on Election Day but without the date written out by the voter on the outer envelope.

The update comes after a U.S. 3rd Circuit Court of Appeals decision last week in a Lehigh County judicial race that said ballots validly cast and timestamped by election officials were not received late and can count toward result totals. The state election agency instructed county election boards to process — or canvass — segregated absentee and mail-in ballots previously set aside due to a missing or incorrect date.

“The county board of elections shall examine the voter declaration on each envelope to ensure that it is signed and verify that the voter’s name appears on the approved list of mail-in and absentee voters,” the Department of State told counties.

State officials also reminded counties to set aside and not open or count ballots cast by voters who died before the May 17 primary election. Local officials should not count ballots received after 8 p.m. on Election Day or ones missing a declaration signature, the inner secrecy envelope, or secrecy envelopes with identifying information.

As of Tuesday afternoon, roughly 1,000 votes separated Trump-endorsed celebrity heart surgeon Mehmet Oz and former hedge fund executive Dave McCormick in the race to replace retiring GOP U.S. Sen. Pat Toomey. That still puts the candidates well within the margin needed to trigger an automatic recount in Pennsylvania, where election law requires a recount if the difference between the final two candidates for a statewide office is 0.5 percent of the vote or less.

According to a timeline outlined by acting Secretary of State Leigh Chapman last week, the latest date a recount can begin is June 1, and it could last until June 7.

Earlier this week, McCormick’s campaign filed a lawsuit in Commonwealth Court and asked the court to uphold the federal court’s decision that counties should count mail ballots received by 8 p.m. on Election Day but were missing the handwritten date on the outer return envelope.

On Tuesday morning, McCormick’s campaign filed an application for emergency relief in the case, asking Commonwealth Court to immediately order county election boards to count mail ballots without a handwritten date.

“These are valid ballots: They were indisputably received on time, having been date-stamped upon receipt, and the absence of a handwritten date on the exterior envelope is immaterial under both state and federal law,” lawyers for McCormick wrote. “Yet as things stand, the ballots will not be included in the tally when the boards report the unofficial returns of the canvas to the Department of State on [Tuesday].”

Lawyers added: “Without immediate relief from this court, these qualified voters will be disenfranchised today.”

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