PA court says missing dates don't spoil mail ballots in GOP Senate primary and should be counted

Mail ballots missing handwritten dates on their return envelopes should be counted in the GOP Senate race, according to Pennsylvania's Commonwealth Court.

In an opinion released late Thursday night, President Judge Renee Cohn Jubelirer agreed with Republican candidate Dave McCormick's campaign's argument that excluding mail ballots when voters didn't include a handwritten date next to their signature would illegally disenfranchise those voters.

"Because these ballots were all timely received by 8:00 p.m. on Primary Election Day, and could not have been cast prior to the ballot having been received by them, there is no question that the ballots have been timely completedregardless of whether there is a date on the exterior envelope," Jubelirer wrote Thursday.

State law requires a voter to write a date next to their signature on the outside of their mail-in ballot return envelopes. McCormick's campaign argued that a missing date was "not material" to a voter's eligibility to cast a ballot, and not including counting those ballots would illegally disenfranchise voters.

McCormick trails celebrity heart surgeon Dr. Mehmet Oz by about 900 votes in the Senate race to replace retiring Republican Sen. Pat Toomey, a seat which could tip the balance of a near evenly divided chamber of Congress. Lt. Gov. John Fetterman won the nomination for the Democrats, and the winner of the GOP race will face him in November.

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A recount is already underway in the tight GOP race, with the margin between the two top candidates automatically triggering a review of the ballots under a 2004 state election law.

There are an estimated 880 mail ballots that are believed to be at issue in the race, a total that attorneys for Oz's campaign pointed out at a Tuesday court hearing would not sway the election in McCormick's favor.

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As of Tuesday, almost half of Pennsylvania's 67 counties either indicated they did not plan to include ballots missing a date or didn't respond to McCormick's initial lawsuit filed a week earlier.

While Jubelirer's opinion orders those counties to include the previously segregated ballots in its totals, another federal case could reverse her order if the U.S. Supreme Court rules .

A similar issue involving handwritten dates on mail ballots during a Lehigh County judge race in 2021, where 257 ballots were not being counted, saw a federal appeal sway in favor of counting the ballots on May 20.

McCormick's current lawsuit referenced that case specifically as part of its argument on why those ballots should be counted.

An emergency order earlier this week stays any decision by the lower courts until the Supreme Court has had a chance to rule on the Lehigh County case.

The court is not under any deadline to issue a ruling in the Leigh County case. The state's recount, however, must be completed by June 8.