U.S. Senate candidate David McCormick has filed a lawsuit in a Pennsylvania court to compel the counting of Republican mail-in ballots submitted without a handwritten date on the outside envelope in a bid to close the gap with primary opponent Dr. Mehmet Oz.
The lawsuit, filed late Monday in the Commonwealth Court of Pennsylvania, asks the state to force all 67 counties' boards of elections to count Republican mail-in ballots received on time but without a handwritten date on the outside envelope, as mandated by the statute. McCormick campaign lawyers are basing their case on a fresh decision by a federal appellate court that ruled such ballots should be counted in a dispute over a Pennsylvania election in 2021.
"Both the Pennsylvania Supreme Court and the United States Court of Appeals for the Third Circuit have held that mail-in ballots should not be disqualified simply because the voters failed to hand write a date on the exterior mailing envelope of their ballots,” McCormick campaign Chief Legal Counsel Chuck Cooper said in a statement provided to the Washington Examiner.
“Because all ballots are time-stamped by the County Boards of Elections on receipt, a voter's handwritten date is meaningless,” he added. “All timely ballots of qualified Republican voters should be counted."
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Oz led McCormick by .08 percentage points with most precincts reporting as ballots continued to be counted six days after the primary election. But McCormick says that he believes he won the nomination and insists he will overtake Oz once remaining Republican mail-in ballots are tallied. With some Election Day votes and a sizable number of mail-in ballots and overseas military ballots left to count, McCormick’s claims are viable.
Going to court, however, presents a political risk for McCormick, at least in the court of Republican public opinion.
Former President Donald Trump, who endorsed Oz, is critical of mail-in ballots generally, as well as lawsuits filed to force states and municipalities to count votes in ways not expressly permitted by state law. Grassroots conservatives have historically opposed court-ordered rules changes but not necessarily mail-in balloting. But haranguing by Trump has made Republican voters suspicious of the latter and even more troubled by the former.
The McCormick campaign believes its lawsuit presents minimal risk because the goal here, unlike legal wrangling in the 2020 presidential contest, is simply to ensure that all Republican voters have their ballots counted.
“Every Republican primary vote should be counted, including the votes of Pennsylvania’s active-duty military members who risk their lives to defend our constitutional right to vote. When every Republican vote is counted, Dave looks forward to uniting the party and defeating socialist John Fetterman in the fall,” said McCormick campaign spokeswoman Jess Szymanski.
The Oz campaign has dismissed McCormick’s optimism and said mail-in ballots would not change the outcome of this contest, which is likely headed for a recount. Perhaps anticipating Monday’s legal action by McCormick, the Oz campaign issued a preemptive statement criticizing lawsuits that might seek to include the counting of excluded mail-in ballots.
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“David McCormick has been a formidable opponent, but it is becoming obvious that he is likely going to come up short to Dr. Mehmet Oz. Unfortunately, the McCormick legal team is following the Democrats’ playbook, a tactic that could have long-term harmful consequences for elections in the Commonwealth of Pennsylvania,” Oz campaign manager Casey Contres said.