After Pennsylvania’s primary election on Tuesday, May 17, the race between Republican Senate candidates David McCormick and Dr. Mehmet Oz was still too close to call, triggering an automatic recount by state law. McCormick filed a lawsuit against Pennsylvania election officials arguing that undated mail-in ballots should be counted. Oz, the Republican National Committee (RNC) and the Pennsylvania Republican Party intervened on behalf of the defendants. On Thursday, June 2, the Commonwealth Court of Pennsylvania, one of the state’s two appellate courts, granted McCormick’s request and ordered counties to count the undated mail-in ballots, but maintain separate results — one with the undated ballots included and one without — until a final decision on the merits is reached. On Friday, June 3, McCormick conceded to Oz, and on Wednesday, June 8, the recount results were released: Oz won the primary election by 951 votes (a count that supposedly does not include the contested undated mail-in ballots). You can find the live play-by-play below.
Wednesday, June 8, 2022
Last updated: 3:20 p.m.
- The recount results reveal Oz won the primary election by 951 votes (a count that supposedly does not include the contested undated mail-in ballots).
Friday, June 3, 2022
- McCormick concedes to Oz in the race for the Republican nomination for U.S. Senate in Pennsylvania, five days before the full results of an ongoing recount were set to be released. “We spent the last 17 days making sure every Republican vote was counted,” McCormick tells supporters, a day after a court granted his request to count otherwise valid mail-in ballots that had undated return envelopes. Oz leads by less than 1,000 votes, but it appears that McCormick decided he could not make up that lead with the around 850 outstanding undated mail-in ballots. “But it’s now clear to me that with the recount largely complete, that we have a nominee,” McCormick concludes.
Thursday, June 2, 2022
- The Commonwealth Court of Pennsylvania, one of the state’s two appellate courts, grants McCormick’s request and orders counties to count the undated mail-in ballots, but maintain separate results — one with the undated ballots included and one without — until a final decision on the merits is reached. In support of this conclusion, the court notes “the overarching principle that the Election Code should be liberally construed so as not to deprive electors of their right to elect a candidate of their choice.” Rejecting undated mail-in ballots that were received by 8 p.m. on Election Day and are otherwise valid might unnecessarily disenfranchise voters in violation of federal and state law, the court finds. The court also points out that no parties presented evidence of fraud regarding the undated ballots or that the ballots weren’t timely received, and it’s undisputed that counties aren’t applying uniform standards in counting these ballots. For these reasons, the court grants preliminary relief that allows the counting of undated ballots as long as they are kept separate from other ballots.
Tuesday, May 31, 2022
- The U.S. Supreme Court grants an emergency application for an administrative stay pausing the 3rd Circuit’s ruling in Migliori v. Lehigh County Board of Elections, meaning that the undated ballots from the Lehigh County, PA judicial election are not counted at this time. While this isn’t a final decision on the issue, it may impact the GOP Senate primary recount.
- The hearing has concluded. Jubelirer says she will get a ruling out as quickly as possible.
- “We are talking about legal voters who cast legal ballots…they have the right to have their votes counted,” argues Fischer in his rebuttal. “If their ballot is not counted, then they’re being disenfranchised.”
- Hicks, in his rebuttal, concludes by telling Jubelirer that she “should be in favor of enfranchisement rather than disenfranchisement in this matter.”
- In his rebuttal, Cooper argues that undated ballots should be counted now and that once the recount concludes, it will be known whether the ballots make a difference or not in the final election outcome.
- King argues that ballot harvesting, also known as ballot collection, could allow for undated ballots to be fraudulently back dated.
- Thomas W. King III, an attorney for the RNC and Pennsylvania Republican Party, begins his opening argument by alleging that, according to Pennsylvania state law, all ballots must be dated.
- After Gore argues that the Purcell principle also applies to post-election challenges, Judge Renée Cohn Jubelirer asks, “If you can’t challenge before an election or after an election, when can you challenge it?”
- Gore argues that undated mail-in ballots should only be counted for candidates if the number of undated ballots is greater than the margin between candidates after the recount has concluded. Right now, Oz leads McCormick by over 900 votes. It’s estimated that there are about 860 undated ballots.
- John Gore, an attorney for Oz, begins his oral argument by arguing that McCormick’s only interest is to overtake Oz in the vote total, but adds that it’s “not possible” based on the current unofficial total of undated ballots.
- Chief Deputy Attorney General Michael Fischer, attorney for Acting Secretary of State Leigh Chapman, begins his oral argument by highlighting that undated ballots are valid and eligible; the only issue is that the ballot is undated.
- Ron Hicks, another attorney for McCormick, points out that some counties — Sullivan and Lehigh — have already counted and included undated mail-in ballots in their vote totals for the Senate primary, but other counties have not done the same.
- Cooper requests all ballots, including undated mail-in ballots, be counted as part of the final tally because “there’s no basis under state or federal law for those ballots to be not counted.”
- Charles Cooper, an attorney for McCormick, begins his oral argument by claiming that “the petitioner’s position that every ballot cast matters” and cites the 3rd Circuit’s opinion in Migliori v. Lehigh County Board of Elections.
Friday, May 27, 2022
- The 3rd U.S. Circuit Court of Appeals releases its full opinion outlining why undated ballots for judicial elections in Lehigh County, PA should not be rejected for an “immaterial technical defect” and must be counted.
Thursday, May 26, 2022
- The Commonwealth Court of Pennsylvania, one of the state’s two appellate courts, will hold a hearing on McCormick’s request for immediate relief on Tuesday, May 31 at 10 a.m. ET. The hearing will be live streamed here.
Wednesday, May 25, 2022
- Pennsylvania Acting Secretary of State Leigh Chapman (D) orders a recount in the Republican Senate primary election, declaring that the vote totals for McCormick and Oz fall within a 0.5% margin, which triggers an automatic recount by state law. Counties can begin the recount process on Friday, May 27 and must complete the process by 12 p.m. on Tuesday, June 7. All results must be submitted by 12 p.m. on Wednesday, June 8.
- U.S. Senate candidate Dr. Mehmet Oz, the RNC and the Pennsylvania Republican Party move to intervene.
Tuesday, May 24, 2022
- The Pennsylvania Department of State issues guidance telling counties that mail-in ballots with undated and incorrectly dated return envelopes should be counted, but the results and the ballots should be kept separate from the rest of the votes in anticipation of litigation.
Monday, May 23, 2022
- U.S. Senate candidate David McCormick files a lawsuit against Pennsylvania election officials arguing that undated mail-in ballots should be counted in the Senate primary election.
Friday, May 20, 2022
- A federal court rules that undated ballots for judicial elections in Lehigh County, PA must be counted. Ballots were previously rejected for missing handwritten dates on the outer envelopes — a minor omission unrelated to eligibility.
Wednesday, May 18, 2022
- With 96% of the vote — or 1.3 million votes — counted in Tuesday’s Pennsylvania Republican Senate primary, the election remains too close to call.