Recount Ordered in PA Senate Race, Courts Asked to Decide Which Ballots Will Be Counted

Undated Mail-in Ballots at Issue, Monroe County has 69 of Them, 17 Republican

Hearing Set for Tuesday Will Be Livestreamed

May 27 2022, 8pm

HARRISBURG — 1.3 million votes were cast in the Pennsylvania primary race for the Republican nomination for US Senate. Uncertified totals found barely 900 votes separated the two leaders, Mehmet Oz and David McCormick. With the result within the one-half of one-percent margin for an automatic recount, yesterday Acting Secretary of State Leigh M. Chapman ordered the state’s 67 counties to recount their votes.  The recount must be completed by noon on June 7, and counties must submit vote tallies by noon on June 8. (In Monroe County, Mr. McCormick trailed by over 975 votes.)

The automatic recount rule has been in place since 2004. According to the Secretary of State, it was triggered nine times, but with six losing candidates waiving the recount, there have been only three statewide recounts. None have changed the outcome.

But there’s a twist this year.

There are 860 Republican mail-in or absentee ballots that were not included in the uncertified totals.  According to the Monroe County elections chief, 17 of those 860 are in this county.

These ballots were all mail-in or absentee votes that were actually received by their county election boards before the 8 pm deadline on primary election day, and they all contained appropriate voter signatures. According to court papers, there is no dispute that every one of these voters is qualified to vote and not dispute that the ballot was received before the 8pm deadline on May 17.

However, they did not contain a date. Under the stricter rules in place this year, those votes were not counted and were segregated from all other ballots. Pennsylvania rules allow ballots with the wrong dates to be counted, as long as they are received by the deadline, but not undated ones.

Two days after the May 17 primary election, a federal court ruling on a November 2021 Lehigh County election threw a wrench into the 2022 primary election works. 

On May 19, 2022, the U.S. Court of Appeals for the Third Circuit ordered undated ballots cast in Lehigh County in the November 2021 election must be counted. It held that there is no basis to refuse to count the undated ballots because federal law prohibits states from rejecting ballots due to an “immaterial” defect or error.

That same day, the Pennsylvania Department of State (DOS) asked counties to segregate undated dated ballot return envelopes while the DOS decidied how to handle the issue.

On May 24, the DOS issued new guidance to the 67 voter election boards in Pennsylvania, directing that ballots with an undated return envelope must also be counted for the May 17, 2022 primary.  The DOS also told the counties that those ballots should be segregated from all other voted ballots during the vote counts, just in case.

Some counties counted the undated ballots, but most did not. It remains unclear what Monroe County did.

On May 23 and 24, Mr. McCormick filed petitions in the state Commonwealth and Supreme Courts, respectively, asking them to order that the undated ballots be counted.

The lawsuit is directed at only those “ballots were indisputably submitted on time”, were date-stamped upon receipt by the election boards, and where “no fraud or irregularity has been alleged.”  Mr. McCormick argues that the “only basis for disenfranchising these voters is a technical error that is immaterial under both state and federal law.”

Typically, a case is heard first by the Commonwealth Court and only appealed to the state high court after a ruling. However, in cases of unusual public interest requiring expedition, the Supreme Court can intercede, using what is called a “King’s Bench” procedure. The Supreme Court has not yet decided if it will pull the case from the Commonwealth Court.

Counties had until today at Noon to submit a response to the petition in the Commonwealth Court case. The court order said that any county not answering by that time will be presumed not to object to the petition. 

According to the Commonwealth Court docket sheet, Monroe County did not make any filing today. In the Supreme Court matter, Monroe County filed a statement yesterday that it would not be answering the petition in that court, either.

Monroe County also did not respond to a court-ordered data-collection survey asking if it had counted any of the questioned ballots. 

If McCormick is successful, the ruling on undated ballots is expected to be applied to all mail-in ballots, not just the Oz and McCormick vote tallies.

The Commonwealth Court has set a hearing on the petition for Tuesday, May 31, 2022, at 10:00 a.m. It will be live-streamed AT THIS LINK for the public to watch.


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