The ongoing dispute over whether to count undated mail-in ballots in Pennsylvania has been a partisan one — until now.
Since 2020, Republicans have campaigned to have undated ballots discarded while Democrats have argued that they should be counted. But now the Republican Senate’s neck-and-neck primary has put rival Mehmet Oz in the institutional Republican position of wanting the rejection of undated ballots, and David McCormick in the normally Democratic position of wanting those technically flawed ballots counted will.
At first glance, the current back-and-forth involves a small number of undated ballots in just one election – probably several hundred votes at most. But the fight has broader implications for November and beyond.
Questions about which votes are counted and the requirements for successfully casting a vote are fundamentally voting rights issues — and a federal appeals court ruling Friday relied on the Civil Rights Act to determine that undated ballots should continue to be counted.
But these legal issues are also political, and voting decisions have become central to both parties’ identities — with Republicans calling for changes to an electoral system that former President Donald Trump continues to attack, and Democrats who oppose restrictions in the name of protecting democracy.
Democrats now vote by mail far more often than Republicans. And that has a practical partisan implication not voiced by the GOP as it seeks to block the counting of undated ballots: Any attempt to refuse absentee ballots is far more likely to result in Democratic votes being discarded in a general election than Republican ones .
Now the fight between McCormick and Oz is sparking partisan debates within the GOP.
McCormick’s campaign adviser, Jim Schultz, lashed out at the state party leader Tuesday for wanting undated Republican mail-in ballots to be thrown away.
“That’s quite surprising since his job is to win over GOP voters and bring the party together, not push them aside and drive wedges,” said Schultz, who used to work in the Trump White House.
McCormick, who is just behind in the count, sent a letter to the county every Friday urging them to count the ballots. The campaign sued the Commonwealth Court in Pennsylvania on Monday to compel counties to do so, and on Tuesday asked the state Supreme Court to take up the case.
These are ballots that arrived in counties on time — before 8 p.m. on primary day — but voters did not date the outer envelope next to their signature, as required by state law. It’s unclear how many undated GOP ballots exist nationwide, but it’s only a few thousand, if any, at most.
Oz led by less than 1,000 votes over McCormick late Tuesday.
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Courts had previously ruled those ballots could not be counted, but a federal appeals court ruled otherwise in a case about undated mail-in ballots in Lehigh County late last week, sending both campaigns and their attorneys into a whirlwind storm.
The Republican Party has sided with Oz on the issue — both state and national parties said they would petition to intervene in McCormick’s lawsuit on Oz’s behalf. It’s not about the candidate, but about the principle of the matter: the voters should have to abide by the rules when voting.
“Our position in this current lawsuit is representative of our long-standing position on voting rights matters,” GOP Chairman Lawrence Tabas, a longtime top campaign attorney, said in a statement Tuesday. He was careful to say that the party’s position had nothing to do with backing any particular candidate.
Neither Oz nor McCormick received support from the state or national party.
Trump endorsed Oz.
“None of Pennsylvania’s leading Republican Senate candidates would represent the Keystone State better than a Democrat,” said RNC chief adviser Matt Raymer. “But Pennsylvania law is clear that undated mail-in ballots may not be counted.”
An RNC spokesman said his intervention in the case relates to this election as well as future competitions: “We just want to make sure states continue to follow the laws on the books — now, in November, and in the upcoming elections.”
A source familiar with the Oz campaign called McCormick’s move to count undated ballots a step out of a Democratic playbook that could set a dangerous precedent for Republicans in future elections.
On Monday afternoon, Oz campaign manager Casey Contres quoted a Democratic campaign attorney, Marc Elias, as supporting McCormick’s fight for the undated ballot count.
“I always knew we had to deal with Elijah’s nonsense in this cycle,” Contres wrote. “I just didn’t think it would be during a Republican Senate primary.”
While the undated ballots could help McCormick this election, who has fared better with absentee voting, Democrats would likely benefit in November if such ballots are counted.
Democrats vote by mail more often than Republicans. While 42% of Democratic votes in last week’s primary — more than two out of five — were cast by mail, only 11% of Republican votes were.
McCormick has argued that his lawsuit seeks to count all “legitimate” Republican ballots.
“They have all been time-stamped by the Borough Electoral Committee and these are legitimate votes,” he said on Tuesday’s Hugh Hewitt radio show. “Where the voters didn’t handwrite the date on it, instead they were timestamped. So if they were timestamped, why would anyone want to discard those votes?”
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Undated absentee ballots have been a recurring front in the struggle for absentee ballots in Pennsylvania. They are one in a series of questions facing county election officials, such as what if a ballot is missing a signature, date, or internal secrecy envelope? Several of these issues have also led to lawsuits, typically Republicans suing to reject ambiguous votes and Democrats suing to count them.
Prior to 2020, the divide was geographic rather than partisan, with several deep red states such as Utah using high-rate mail-in voting.
But when Trump repeatedly attacked mail-in voting with a string of lies about fraud and rigged elections, he helped create a strong partisan divide that persists to this day. This also happened when Pennsylvania dramatically expanded postal voting.
While the division is strong, tens of thousands of Republicans are still voting by mail, including more than 172,000 Republican voters Senate primaries last week.