(WHTM) – Dave McCormick’s U.S. Senate campaign filed an application for extraordinary relief with the State Supreme Court in the fight over undated mail-in ballots. The filing comes hours after an emergency relief filing in Commonwealth Court.
Paperwork was filed Tuesday morning naming Secretary of State Lehigh Chapman and several county boards of elections as McCormick trails Mehmet Oz by about 1,000 votes in the Pennsylvania Senate race.
In the State Supreme Court filing the McCormick campaign argues the date on the envelope “serves no purpose” and violates the federal Civil Rights Act and the Pennsylvania Constitution.
“The Commonwealth concedes that any handwritten date will do; and the measure serves no logistical, confidentiality, or anti-fraud purpose.”
McCormick’s lawsuit claims that “many” boards of election are reusing to count the timely received undated ballots.
“They are doing so in violation of established federal and Commonwealth law,” stated the McCormick lawsuit. “They are doing so in a manner that disenfranchises qualified voters throughout the Commonwealth. And those who persist in doing so will be acting in open disregard of clear guidance from the Department of State, issued May 24, 2022, to count these ballots.”
The full State Supreme Court filing can be read below:
In the emergency relief filing Tuesday morning in Commonwealth Court, McCormick’s campaign said “qualified voters will be disenfranchised” if the ballots that did not have a handwritten date on the inside ballot are not accepted and counted.
The Secretary of State ordered the county board of elections to count the undated ballots in new guidance released after the application for emergency relief was filed.
The above-listed County Boards of Elections (“Boards”), on information and belief, refuse to count (or to commit to counting) absentee and mail-in ballots simply because the voters failed to handwrite a date on the exterior mailing envelope, which is separated by yet another envelope from the ballot itself. These are valid ballots: they were indisputably received on time, having been date-stamped upon receipt, and the absence of a handwritten date on the exterior envelope is immaterial under both state and federal law. Yet as things stand, the ballots will not be included in the tally when the Boards report the unofficial returns of the canvass to the Department of State on Tuesday, May 24, 2022. See 25 P.S. § 3154(f). Without immediate relief from this Court, these qualified voters will be disenfranchised today.Application for emergency relief, McCormick v. Chapman
The full filing with the Commonwealth Court can be read below:
“I’m willing to accept whatever the results will be as long as every vote is counted and that’s what I’ll be fighting for,” McCormick said to abc27’s Dennis Owens on Monday. “I’m confident if we count every Republican vote that’s gonna be beneficial to me and I will prevail.”
It’s not clear how many mail-in ballots that lack a handwritten date have been received by counties. Although he trails the vote count, McCormick has been doing better than Oz among mail-in ballots.
Oz denied repeated interview requests by abc27, but his campaign tweeted in part, “Our campaign will oppose the McCormick team’s request that election boards ignore both the Pennsylvania Supreme Court and state election law and accept legally rejected ballots.”
Jonathan Marks, the commonwealth’s Deputy Secretary for Elections and Commissions, says he feels “very passionately that every voter’s vote should count.”
“Nobody’s questioning the validity of these ballots,” said Marks. “When a voter makes a minor error it results in disenfranchisement and that’s a serious issue.”
A statewide recount will be ordered if the vote comes within 0.5%, which it has remained within since late on election night. The latest a winner could be declared would be June 8.
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Ruling in a separate case late Friday, the 3rd U.S. Circuit Court of Appeals said the state election law’s requirement of a date next to the voter’s signature on the outside of return envelopes was “immaterial.” The lawsuit emerged from a county judicial election last year, and the three-judge panel said it found no reason to refuse counting the ballots in that race.
The ruling went against the position that Republicans in Pennsylvania have taken in courts repeatedly in the past to try to disqualify legal ballots cast on time by eligible voters for technicalities, such as lacking a handwritten date.
The law requires someone to write a date on the envelope in which they mail in their ballots. However, the envelope is postmarked by the post office and timestamped by counties when they receive it.
Meanwhile, the state law gives no reason that a voter should date the envelope and does not explicitly require a county to throw it out should it lack a date.
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The Associated Press contributed to this report