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A sparsely watched case in federal court could upend Pennsylvania’s neck and neck Republican primary between Dr. Mehmet Oz and David McCormick.
On Friday afternoon, a three-judge panel of the 3rd Circuit Court of Appeals issued a judgment saying election officials should count several hundred mail-in ballots that were submitted with no date written on their mailing envelopes during of a county judge election in November 2021, so long as they are otherwise received in time.
It was not immediately clear how far-reaching the circuit court ruling would be, as a formal notice from the panel is still pending. But it could have a serious impact on the Senate race. Oz and McCormick were separated by about 1,100 votes Friday afternoon, and the decision could introduce an as-yet-unknown number of similarly-situated ballots into the pool that were not initially counted.
A State Department spokesperson told POLITICO it was not immediately clear how many ballots otherwise timely received by county election officials were discarded due to a missing date. Ellen Lyon, spokeswoman for the agency, said it would be “surveying counties to get that figure and releasing guidance to support them,” and planned to have that information early in the year. next week.
But as an example, Nick Custodio, assistant commissioner for the city of Philadelphia, said 2,100 mail-in and mail-in ballots were received undated in Philadelphia on Friday afternoon. Of those, about 100 were Republican ballots.
He said that number would increase slightly, however, as officials had yet to finish processing mail-in ballots.
Lyons said the department was “satisfied” with the Federal Court’s interpretation of the law, a likely sign that the upcoming guidelines would require counties to count undated ballots. But absent that advice or the court’s full opinion, it’s not immediately clear how local election officials in the state will handle similar ballots for Tuesday’s primary.
The decision does not affect ballots that arrived after the deadline, which was when polls closed on Tuesday. They will remain uncounted.
But Adam Bonin, a Democratic election lawyer involved in the case, said he personally thinks the order should impact how counties tally votes in Tuesday’s primary.
“Look, you have a Federal Court of Appeals ruling in no uncertain terms that the date requirement is irrelevant,” he said, adding that counties counted ballots when a voter put their date of birth or a date in the future as the date.
“That’s what the State Department said: there just has to be a date,” he continued. “And all the ballots, when they are received by the counties, they are time-stamped, they are clocked. So we know they arrived on time. … So whether or not a voter writes the date by hand is irrelevant. And I’m glad this court recognized that.”
Custodio said Philadelphia city commissioners will vote next week on whether to count undated ballots.
Philadelphia City Commissioner Lisa Deeley called the order a “major victory” for voters.
“The number of undated ballots is scary,” she said. “And even if the number was five, it’s still five too many. A voter has done it all. They filled out the application form. They got the ballot. We know we got the ballot back in time. … So it always seemed like an unnecessary step and I’m glad the federal court agreed.
Federal court ruling says Pennsylvania law requiring ballots to be dated is ‘immaterial’ under federal law, meaning it should have no bearing on acceptance or rejection ballot papers.
Federal law states that no one should be denied the right to vote in an election “by reason of any error or omission in any record or document relating to an application, registration, or other required act. to vote, if such error or omission is not material to determining whether such person is qualified under state law to vote in this election.”
The issue of undated ballots in Pennsylvania has been ping pong in the courts in recent years. Shortly after the 2020 general election, the state Supreme Court ruled that ballots that did not include a date but were otherwise received on time should be counted — but crucially, the deciding fourth vote for this way wrote that in future elections, the “date and signature requirement” should be mandatory, and “with the omission of either element sufficient without more to invalidate the ballot in question “.
“We are pleased that the votes are continuing to be counted,” a McCormick campaign official said.
The Oz Campaign did not provide comment for this story.
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