With a two-paragraph order Tuesday, Supreme Court Justice Samuel Alito effectively butted into Pennsylvania’s messy GOP primary, potentially affecting the ongoing Senate race there.
The question in Pennsylvania is whether mail-in ballots without dates on their outside envelopes — ones that nonetheless were cast on time — must still be discarded as invalid.
In the Republican race to become Pennsylvania’s next senator, TV doctor Mehmet Oz has sought to exclude those ballots, while former hedge fund manager David McCormick has sought to have those ballots counted. That dispute is ongoing in state court as the race is being recounted.
The federal Third Circuit Court of Appeals ruled on May 22, in the case of a November 2021 county judicial race, that the missing date was “immaterial” and that “there is no basis on this record to refuse to count undated ballots” that had been set aside in that election.
Responding to an emergency application from a judicial candidate in that race, David Ritter, Alito paused the order Tuesday.
The question in the judicial race, which has now reached the Supreme Court, may well affect the U.S. Senate race, and has played a key role in the ongoing recount. Pennsylvania’s acting Secretary of State Leigh Chapman has said her office would require counties to tabulate the ballots in question separately.
“Our position is that undated and incorrectly dated ballots should count,” she said last week. “Our guidance will allow counties to arrive at an accurate count no matter what the courts decide.”
McCormick appears to have the edge on Oz among mail-in voters, potentially making those undated ballots even more important in the election’s razor-thin margins.
After the Third Circuit’s ruling that missing dates were “immaterial” — the same ruling that Alito paused Tuesday — McCormick’s campaign lawyers sent a letter to every county in the state informing them of the news.
“We trust that in light of the Third Circuit’s judgment you will advise your respective Boards to count any and all absentee or mail-in ballots that were timely received but were set aside/not counted simply because those ballots lacked a voter-provided date on the outside of the envelope,” the May 22 letter read.
Oz’s campaign sent its own letter, NBC News reported. Among other things, it noted, “that judgment is not final and is subject to further review.”