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Pennsylvania Court Orders Undated Ballots to Be Counted, Siding With McCormick For Now


Update: David McCormick conceded the exceedingly close race for the Republican nomination for Senate in Pennsylvania on Friday to Dr. Mehmet Oz. Read the news story.

A Pennsylvania court ordered election officials on Thursday to count undated mail-in ballots for now in a nationally watched Republican Senate primary, granting a short lived injunction to David McCormick as he trailed Dr. Mehmet Oz amid a statewide recount.

Fewer than 1,000 votes separate Mr. McCormick, a former hedge fund executive, from Dr. Oz, the celebrity physician backed by former President Donald J. Trump, in a race that would ultimately determine control of the divided Senate.

The Commonwealth Court of Pennsylvania concluded that a May 23 lawsuit by Mr. McCormick had raised sufficient claims that a state law requiring voters to hand-write the date on return envelopes for mail-in ballots may lead to their disenfranchisement.

Republicans have fought to implement the rule, siding with Dr. Oz within the lawsuit.

Within the 42-page opinion, Renée Cohn Jubelirer, the court’s president judge, directed county election boards to report two sets of tallies to the acting secretary of the commonwealth, one that features the undated ballots and one that doesn’t. That way, when a final decision is made on whether to simply accept the ballots, the judge wrote, the vote count will probably be available.

Within the opinion, Judge Cohn Jubelirer said there was absolute confidence that the contested ballots had been returned by the May 17 deadline.

“The court notes that no party has asserted, and even hinted, that the difficulty before the court involves allegations of fraud,” she wrote. “The parties have agreed that this election was free and fair.”

A campaign spokeswoman for Mr. McCormick lauded the court order in an announcement on Friday.

“We’re pleased the court agrees on ensuring valid Republican votes that were signed and returned on time, as shown by their time-stamp, are counted so the party can get behind a powerful nominee in the autumn,” the campaign spokeswoman, Jess Szymanski, said.

Casey Contres, the campaign manager for Dr. Oz, declined to comment concerning the decision on Friday.

Judge Cohn Jubelirer wrote that the court’s guidance needs to be uniform, noting that some counties had decided to simply accept the undated ballots and others had not.

“Without court motion, there exists the very real possibility that voters inside this commonwealth won’t be treated equally depending on the county during which they vote,” she wrote. “The court begins with the overarching principle that the Election Code needs to be liberally construed in order to not deprive electors of their right to elect a candidate of their selection.”

The treatment of undated mail-in ballots is at the guts of one other legal dispute in Pennsylvania. That one is before the U.S. Supreme Court, which on Tuesday paused the counting of those ballots in a judicial race in Lehigh County, Pa., a case that would reverberate within the G.O.P. Senate primary.

Understand the Battle Over U.S. Voting Rights

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Why are voting rights a problem now? In 2020, consequently of the pandemic, thousands and thousands embraced voting early in person or by mail, especially amongst Democrats. Spurred on by Donald Trump’s false claims about mail ballots in hopes of overturning the election, the G.O.P. has pursued a number of latest voting restrictions.

Why are these legislative efforts essential? The Republican push to tighten voting rules has fueled doubts concerning the integrity of the democratic process within the U.S. Lots of the restrictions are prone to affect voters of color disproportionately.

Which states have modified their voting laws? Nineteen states passed 34 laws restricting voting in 2021. Among the most important laws was enacted in battleground states like Texas, Georgia and Florida. Republican lawmakers are planning a recent wave of election laws in 2022.

Will these recent laws swing elections? Perhaps. Perhaps not. Some laws will make voting harder for certain groups, cause confusion or create longer wait times at polling places. But the brand new restrictions could backfire on Republicans, especially in rural areas that when preferred to vote by mail.

The Republican primary winner will face Lt. Gov. John Fetterman, the Democratic nominee, within the November election for the seat, from which Senator Patrick J. Toomey, a Republican, is retiring.

The Commonwealth Court’s motion late on Thursday got here two days after Judge Cohn Jubelirer heard several hours of oral arguments in Mr. McCormick’s lawsuit, during which the state and national Republican parties intervened in opposition.

They claimed that making voters write the date on the return envelopes for mail-in ballots was geared toward stopping fraud. Thomas W. King III, a lawyer for the Republican National Committee and Pennsylvania Republican Party, didn’t immediately reply to a request for comment on Friday.

Pennsylvania’s top election official — Leigh M. Chapman, the acting secretary of the commonwealth, who was named as defendant in Mr. McCormick’s lawsuit — supports the counting of undated mail-in ballots.

A lawyer for Dr. Oz had argued on Tuesday that there have been not enough outstanding votes to vary the consequence of the race. He said that the court should hold off on ruling on the ballots’ status until after the statewide recount concludes; counties have to finish the method by Tuesday and report their results to the state by Wednesday. The ballots needs to be put aside, the lawyer said, with counties reporting the full number but not counting the votes.

But Judge Cohn Jubelirer was not persuaded by the Oz campaign’s argument that such an approach wouldn’t cause harm, writing that “the flexibility to find out which votes will make a difference is an ever-changing number” throughout the recount stage and that waiting could further delay the election process.

Adam Liptak contributed reporting.

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