DV Journal

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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With fewer than 1,000 votes separating them, the close primary election between Dr. Mehmet Oz and Dave McCormick for the open U.S. Senate seat is going into a recount.

Acting Secretary of State Leigh Chapman announced the recount Wednesday afternoon. It was triggered by the 0.5 percent margin between the two candidates’ vote totals and must be completed by June 7.

Unofficial returns showed Oz with 419,365 votes or 31.21 percent and McCormick at 418,463 or 31.14 percent.

McCormick also filed a lawsuit asking the state Supreme Court to permit mail-in ballots without a date written on them by the voter to be counted. Chapman told county election offices to set those ballots aside to await the court’s decision.

But McCormick’s move garnered swift pushback from state and national Republican Party officials.

Republican National Committee Chair Ronna McDaniel, said via Twitter: “Both Republican candidates in Pennsylvania would be fantastic senators. The RNC is committed to election integrity and election laws must be followed. We’re intervening in a Pennsylvania legal battle alongside the @PAGOP to ensure just that.”

RNC Chief Counsel Matt Raymer said, “The RNC is intervening in this lawsuit alongside the Pennsylvania GOP because election laws are meant to be followed, and changing the rules when ballots are already being counted harms the integrity of our elections. Either of Pennsylvania’s leading Republican Senate candidates would represent the Keystone State better than a Democrat, but Pennsylvania law is clear that undated absentee ballots may not be counted. This is another example of the RNC’s ironclad commitment to ensuring that the highest standards of transparency and security are upheld throughout the election process.”

And conservative radio talk host Dom Giordano told the Delaware Valley Journal podcast he thinks McCormick’s decision to go to court is a mistake. He believes McCormick should “take one for the team” and emerge as the GOP’s nominee to take on state Sen. Bob Casey (D) in 2024.

“I like McCormick, and to spend all that money and lose by so few votes — I get it. If your attorney says there’s another avenue, you do it,” Giordano said. “Once it becomes apparent where we are, he [McCormick] should be aware that Casey is viewed as very vulnerable, and he’d have the entire GOP behind him.”

As of Wednesday night, however, the McCormick campaign was pressing ahead. Spokesperson Jess Szymanski said the litigation the campaign filed was to require counties to adhere to a recent ruling by the “Republican-leaning Third Circuit Court to count Republican ballots signed by a voter, received and timestamped by 8 p.m. on Election Day. These ‘undated’ ballots are in fact dated because they’re timestamped and proven to have arrived on time,” she said.

“Once we have counted all Republican votes received on time, we will unite behind a strong GOP nominee to defeat socialist John Fetterman in the fall. All Republicans should be focused on that goal.”

The McCormick campaign believes the state Supreme Court will decide whether to hear its appeal by the close of business Thursday, Szymanski said.

Dave McCormick said via Twitter, “We are proud our campaign received nearly 418,000 votes, won 37 of 67 counties, and contributed to a historic turnout with a razor-thin difference between myself and Mehmet Oz. This narrow difference triggers an automatic recount and we look forward to a swift resolution so our party can unite to defeat socialist John Fetterman in the fall.”

Lawrence Tabas, chair of the Pennsylvania Republican Party says he believes either Republican will defeat Fetterman in the general election.

“We look forward to working with whoever is the nominee, once the primary results are certified,” Tabas said.

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A red wave has seemingly washed over Pennsylvania, although ballots were still being counted two days after Election Day 2021.

In Bucks County – which drew a 40 percent voter turnout, higher than Chester, Delaware, and Montgomery Counties – GOP members will now head the row offices of sheriff, district attorney, recorder of deeds, prothonotary, and county controller. Patricia Popkik, chairwoman of the Republican Party of Bucks County, isn’t surprised by the GOP’s dominance.

“So many people are awakened, stirred up, and enthused,” Popkik says, adding that her organization trained 150 new poll workers this election. “They’re unhappy with what’s going on in Washington. Voters have made it clear that they want changes.”

Republicans also swept statewide judicial elections, fueling the party’s hope for 2022, in which voters will decide a new governor and a new U.S. senator. After all, the party of the president usually loses seats in Congress in midterm elections, and a Republican has replaced an outgoing Democratic governor in Pennsylvania for the past 60 years.

“The gubernatorial race is very much in play and something Republicans can take as long as Democrat leadership keeps making these ridiculous rules and building these enormous debts,” Popkik says.

In nearby Virginia and New Jersey, Republicans continued to make gains. Glenn Youngkin flipped the governor’s office in Virginia, defeating former Democratic governor Terry McAuliffe, and Democratic incumbent Phil Murphy eked out a victory over GOP challenger Jack Cittarelli in a surprisingly close race. Education, specifically a parent’s say in what their child is taught, was a main issue in the Virginia race. Meanwhile, the New Jersey race focused on issues surrounding the COVID-19 pandemic, such as Murphy’s lockdowns, mask mandates, and vaccine requirements for teachers.

Considering that President Joe Biden won Virginia by 10 points and New Jersey by 16 points in 2020, those races indicate many voters aren’t satisfied with his first year in office.

“It’s a big win for the rule of law and family values in Pennsylvania, nearby Virginia and beyond, as residents voted for judicial restraint and repudiation of the dangerous and divisive Biden/Harris agenda,” says Gordon Eck, chairman of the Republican Committee of Chester County. “Locally, while the votes are still being counted, our gains appear to be more modest, yet significant at the municipal and school board level in supporting accountability in government and ensuring parents are given their rightful place in their children’s education and health.”

As of 10:30 p.m. on Nov. 3, Montgomery County recorded 35.2 percent voter turnout. Considering the effort the county’s Democratic Party put forth in encouraging residents to participate, from mailing campaigns to knocking on doors, chairman Joe Foster was disappointed by the low turnout.

“We went the extra yard to grind out the vote, but these races never generate the kind of expense that more high-profile races do, and with that expense comes more coverage,” Foster says. “The politics of the country today are so hard, unforgiving and accusatory that even when you make the extra expense and knock on more doors, maybe people are just tired of politics. Maybe there’s voter fatigue out there. I wonder if you can only rev up the base so many times.”

In contrast to the rest of the region, Democrats performed well in Delaware County thanks to hundreds of local candidates and grassroots activists knocking on doors, making phone calls, sending text messages and dropping literature on doorsteps to communicate the importance of this election to voters.

The party is celebrating wins for Delaware County Council candidates Kevin Madden and Richard Womack, Sheriff Jerry Sanders, Controller Joanne Phillips, and Rachel Ezzell Berry for register of wills.

“We have prevailed at the ballot box despite the national trend of voter dissatisfaction,” says Delaware County Democratic Chair Colleen Guiney. “In 2017, Democrats established a strong foothold in county government. In 2019, they won control. But this year, voters have made it clear that Democratic representation is here to stay.”

However, two Republican county chairpersons claim controversy with the election, particularly due to mail-in ballots (primarily used by Democrat voters).

On Wednesday, the Montgomery County Election Results Dashboard indicated 65,968 mail-in ballots had been received by 8 p.m. on Election Day. However, the correct number was approximately 71,000, according to Montgomery County Republican Chair Liz Havey. Additionally, she said the party learned approximately 9,000 of the 20,000 outstanding mail-in ballots were unable to be read by the scanners due to a printing error. As a result, those ballots have to be manually recreated by teams of Republican and Democrat volunteers.

This process is expected to continue through Saturday, Havey says, stressing that official results won’t be ready until the process is complete.

“What’s clear is the mail-in ballot process has led to great confusion and distrust in the system,” she says. “The Montgomery County Election Board and the Department of State must do better and be held accountable.”

Thomas McGarrigle, chair of the Delaware County Republican Party, has gone one step further.  He’s calling on Delaware County to do a voluntary recount of the entire election.

“I’m not a lawyer and don’t know the many intricacies of election law, but I do know that all of the errors the county has admitted that its third-party vendor has caused have imperiled the integrity of the election,” McGarrigle says.

On Nov. 30, there was an emergency hearing to address why more than 600 ballots were mailed to the wrong residents in Delco by ElectionIQ, a third-party vendor hired by the county.

“Let candidates be able to see if they won or lost without having to rely on technology that has repeatedly failed the county and all voters in this election cycle,” McGarrigle says.

“I am calling on the Democratic Party to stand with us as we request the Democrat-controlled government to voluntarily recount these ballots. This is a perfect opportunity to restore trust in government and restore trust and integrity to the electoral process.”

Bucks County Democratic Party Chair John Cordisco and Chester County Democratic Party Chair Charlotte Valyo didn’t return requests for comment.

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