A little-watched federal court case could upend the neck-and-neck Republican Senate primary in Pennsylvania between Dr. Mehmet Oz and David McCormick.
On Friday afternoon, a three-judge panel for the 3rd Circuit Court of Appeals issued a judgment saying election officials should count several hundred mail ballots that were submitted without a date written on their mailing envelopes in a November 2021 county judgeship election, as long as they were otherwise received on time.
It was not immediately clear how sweeping the reach of the circuit court’s ruling will be because a formal opinion from the panel is still forthcoming. But it could have a serious impact on the Senate race. Oz and McCormick were separated by about 1,100 votes as of Friday afternoon, and the ruling could introduce into the pool an as-yet-unknown number of similarly-situated ballots that would not have initially been counted.
A spokesperson for the Department of State told POLITICO that it was not immediately clear how many ballots that were otherwise received in a timely fashion by county election officials were rejected because of a missing date. Ellen Lyon, a spokesperson for the agency, said that it would be “surveying counties to get that figure and issuing guidance to support them,” and anticipated having that information early next week.
But as an example, Nick Custodio, a deputy Philadelphia city commissioner, said there were 2,100 mail and absentee ballots that had been received without dates in Philadelphia as of Friday afternoon. Of those, about 100 were Republican ballots.
He said that number would go up slightly, however, because officials had not yet completed processing mail ballots.
Lyon said the department was “pleased” with the federal court’s interpretation of the statute, a likely sign that the forthcoming guidance would instruct counties to count un-dated ballots. But absent that guidance or the full opinion from the court, it is not immediately clear how local election officials across the state will handle similar ballots for Tuesday’s primary.
The ruling does not affect ballots that arrived after the deadline, which was close of polls on Tuesday. They will remain uncounted.
But Adam Bonin, a Democratic election lawyer involved in the case, said he personally believes the order should impact how counties tally votes in the Tuesday primary.
“Look, you have a federal Court of Appeals ruling in unmistakable terms that the date requirement is immaterial,” he said, adding that counties have counted ballots where a voter put their date of birth or a date in the future as the date.
“This is what the Department of State said: It just has to have a date on it,” he continued. “And all the ballots, when they’re received by the counties, they get time-stamped, they get clocked in. So we know that they arrived on time. … So whether or not a voter handwrites in the date, it doesn’t matter at all. And I’m glad that this court recognized it.”
Custodio said Philadelphia City Commissioners will vote next week on whether to count ballots without dates.
Philadelphia City Commissioner Lisa Deeley called the order a “major victory” for voters.
“The numbers of undated ballots are scary,” she said. “And even if the number were five, it’s still five too many. A voter’s done everything. They filled out the application. They got the ballot. We know we got the ballot back in time. … So it just always seemed like an unnecessary step and I’m glad that the federal court agreed.”
The federal court judgment said that Pennsylvania law requiring that ballots be dated is “immaterial” under the federal law, meaning they should have no bearing on whether ballots are accepted or rejected.
Federal law reads that no person should be denied the right to vote in any election “because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election.”
The issue of undated ballots in Pennsylvania has ping-ponged around courts in recent years. Shortly following the 2020 general election, the state Supreme Court ruled that ballots that did not include a date but where otherwise received on time should be counted — but crucially, the fourth and deciding vote for that path wrote that in future elections, the “date and sign requirement” should be mandatory, and “with the omission of either item sufficient without more to invalidate the ballot in question.”
“We’re glad votes are continuing to be counted,” said a McCormick campaign official.
The Oz campaign did not provide comment for this story.