Court fight complicates Pennsylvania GOP Senate race recount
As county officials in Pennsylvania prepare to begin a recount of the bitterly contested Republican Senate primary between celebrity heart surgeon Dr. Mehmet Oz and former hedge fund executive David McCormick, they will also have to contend with a court dispute over which ballots can even be tallied.
Acting Secretary of State Leigh Chapman announced the recount on Wednesday with a little more than 900 votes separating Oz, who is backed by former President Donald Trump, and McCormick, who has the backing of ex-Trump aides Hope Hicks and Kellyanne Conway.
An automatic recount is triggered in the Keystone State if the top two candidates are within 0.5 percentage points of each other.
According to the secretary of state’s office, the unofficial returns from all 67 Pennsylvania counties show Oz with 419,444 votes and McCormick with 418,534 votes – a difference of 0.07%.
But a legal battle has emerged over undated mail-in ballots that McCormick hopes will allow him to make up the difference.
Under Pennsylvania law, mail-in and absentee ballots must be submitted in an envelope with a written date on it. However, the Philadelphia-based 3rd US Court of Appeals — in a ruling dealing with a county judge election from November 2021 — decided last week that the requirement was “immaterial” and found all such votes should be counted.
Thus inspired, McCormick‘s campaign asked the Commonwealth Court of Pennsylvania to ensure that all counties tabulate mail-in and absentee ballots that do not have a correct date (or any date at all) on their envelopes — so long as they were received by 8 p.m. on primary day.
“The premise we should have, I believe, as Republicans is that all Republican votes count, and that’s something we’ve all, I think, held as a principle,” McCormick said earlier this week. “And so that’s the principle we’re holding here. We held that principle before this court ruling. This court ruling just illuminated it more.”
The Oz campaign is contesting McCormick’s suit in an effort to preserve their razor-thin edge — with backing by the Republican National Committee and the state Republican Party.
“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,” RNC Chief Counsel Matt Raymer said in a statement.
But the question is whether there are enough mail-in ballots for McCormick to make up the difference.
At the recount news conference on Wednesday, the secretary of state said 65 of 67 counties have undated ballots to count.
Of those, 860 are Republican ballots and 4,190 are Democratic.
Because of the lawsuits, Chapman said her office has advised the election boards to count them but to keep them separate from other ballots.
Her office also said that there are about 10,000 provisional and absentee ballots — including military and overseas ballots — that remain to be counted. Those votes are legitimate as long as they arrived up to seven days after the primary.
Chapman added it’s not know how many of those were cast by Republicans, but she expected the counties would finish tabulating them before the recount begins.
All 67 counties must begin their recounts no later than June 1 and complete them by noon on June 7 and report the results by noon on June 8.
The winner will face Lt. Gov. John Fetterman, who easily won the Democratic primary, in November. Some Keystone State Republicans fear whoever emerges from the recount will be too weakened to keep the Senate seat currently held by retiring Republican Pat Toomey in GOP hands.
