Commonwealth Court President Judge Renee Cohn Jubelirer listened to hours of arguments Tuesday on a petition brought by the David McCormick Senate campaign to permit mail-in and absentee ballots without a voter-written date on the envelope to count.
Jubelirer did not issue a ruling but promised that she would rule soon, although it’s likely the Supreme Court will have the last word.
McCormick, a hedge fund CEO, and Dr. Mehmet Oz, the celebrity heart surgeon, are in a razor-thin Republican primary election contest with fewer than 1,000 votes separating them. However, Oz has already declared himself the presumptive nominee who will face Democrat John Fetterman in the fall.
The close race automatically triggered a statewide recount that is underway and must be completed by June 8.
Meanwhile, a senior McCormick campaign staffer said the campaign would request a hand recount for 12 counties: Allegheny, York, Centre, Chester, Cumberland, Erie, Lancaster, Monroe, Schuylkill, Delaware, Bucks, and Westmoreland.
Those counties are “outliers” with undervotes and overvotes that “fall outside the norm.” Ballotpedia defines undervotes as “when the number of choices selected by a voter in an election is less than the maximum number allowed for that election.” Overvotes are when voters cast more votes in a contest than is allowed.
“We’re going to understand with a hand-recount where any abnormalities exist,” he said. “And actually have a receipt that we can trust and verify, that I can take to my client and say, ‘These are the results.’”
They want to run hand-recount to run concurrently with the state-required recount.
“We want Republican primary voters to know they have a winner, whether it’s by one vote or a 1,000 votes, so we can all get behind the nominee and beat Fetterman in the fall,” McCormick said. “It’s just transparency. There’s an enormous lack of it.”
“We dropped from 33,000 absentee ballots outstanding to 17,000 overnight,” he said. “And there were only 1,100 votes added to the Department of State website. We’ve gone day after day after day with no reconciliation between the vote count and the vote tally.”
“And obviously, we’re winning absentees by a very big margin,” he added.
In the courtroom, McCormick’s lawyers Ron Hicks and Charles Cooper argued a federal court ruling permitting undated ballots to be counted trumps state law that requires it. However, U.S. Supreme Court Justice Samuel Alito issued a stay late Tuesday afternoon on that 3rd Circuit opinion, likely throwing a wrench into McCormick’s arguments.
Hicks noted Lehigh and Sullivan Counties had already included those ballots in their totals. As of Tuesday morning, 819 undated ballots were discovered, but he believes there will be more.
“These ballots matter,” Hicks said. “Clearly, this is sufficient basis for equitable relief.”
“All citizens should be allowed to vote in all elections,” said Cooper. The lack of dates on the ballots is “immaterial,” he said.
Pennsylvania Chief Deputy Attorney General Michael Fisher agreed with the McCormick camp.
However, John Gore, a lawyer representing Oz, said McCormick’s lawyers had not made their case. And even if more ballots were found, it was “not possible to overtake Dr. Oz” since some of those ballots would be for Oz and he starts with a lead of more than 900 votes.
The Republican Party is siding with Oz.
Dr. Mehmet Oz
“The law in Pennsylvania is quite clear. These undated ballots should not be counted,” said attorney Thomas King III, arguing on behalf of the Republican National Committee and the state GOP. He said the state legislature had set the undated ballot policy and it should be upheld. To rule otherwise, the court would be taking power from the legislature, which would be “not only wrong but foolhardy.”
In his rebuttal, Cooper called his adversary’s arguments “meritless.”
As for harm to his client, “we don’t know what the gap is” since not all the votes were counted yet. He asked the court “at a minimum” to order the counties to comply with the order from the secretary of state to sequester the undated ballots. “We think it’s clear right now. It may well make a difference. These votes should be counted as a matter of law.”
Cooper asked the judge “to not disenfranchise voters.”
“The object of the election code is to allow good Pennsylvanians to vote in elections,” he said.
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