Dave McCormick, who trails Mehmet Oz by a razor-thin margin in the Republican primary election for U.S. Senate in Pennsylvania, has sued in a state appeals court to have all 67 counties and the secretary of state count undated mail-in ballots toward the final tally. NBC10’s Lucy Bustamante reports.
A recount is all but certain in the Republican primary for U.S. Senate in Pennsylvania, where the two leading candidates are separated by less than 0.1% of the vote a week after the May 17 election.
A lawsuit filed by Dave McCormick, who trailed Mehmet Oz by less than 1,000 votes as of Tuesday morning, has thrown the outcome into the Pennsylvania courts as well.
Here's a look at how this razor-thin election result could play out in the weeks ahead.
What Happens Now? What Are the Deadlines in the Oz-McCormick PA Primary for Senate?
Get top local stories in Philly delivered to you every morning. Sign up for NBC Philadelphia's News Headlines newsletter.
Pennsylvania's 67 counties have until 5 p.m. May 24 to submit their unofficial election results to the state. Each county is in charge of tallying the ballots during elections and submitting them to the Pennsylvania secretary of state for certification.
In the event that a recount is required -- it is mandatory in elections decided by 0.5% or less -- the secretary of state has until the second Thursday after Election Day to order one. That would mean a recount must be ordered by May 26.
How Does a Recount Work in PA?
Decision 2022
Coverage of the 2022 elections
The secretary of state gives a 24-hour notice to the two candidates. That will let the candidates and the counties know when the recount will be held. The latest the recount can be held is the third Wednesday after Election Day. That would be June 1.
Once then recount is initiated, the counties have six days to complete the recount, which means the latest it would be completed this year is June 7.
They must submit their recount results by noon the next day, which is June 8. The secretary of state then publishes the results, and a winner is declared.
Why Did McCormick File a Lawsuit to Have Undated Mail-in Ballots Counted?
McCormick's campaign sued Pennsylvania's secretary of state and all 67 counties on May 23 in Commonwealth Court to demand that undated mail-in ballots be counted toward the election results. It's an unusual demand by a Republican, considering party leaders in Pennsylvania have consistently tried suppressing mail-in ballots with defects.
Defects include the lack of a date on the ballot envelope or the lack of a signature by the voter. Those missing elements have led to lawsuits in previous elections. In fact, a federal appeals court just last week issued an order requiring that undated mail-in ballots be counted in results from last November's general election.
McCormick is hoping that he can shrink Oz's lead, or even overtake his opponent, ahead of the recount.
"These ballots were indisputably submitted on time — they were date-stamped upon receipt — and no fraud or irregularity has been alleged," the McCormick lawsuit said. "The (county election) Boards' only basis for disenfranchising these voters is a technical error that is immaterial under both state and federal law."
Commonwealth Court is expected to expedite a ruling on McCormick's lawsuit. Their order could come by the end of the week. An appeal to the state Supreme Court could follow.
Do Republicans Want to Count Undated Ballots This Election?
No, they do not. The state and national party organizations have both said in statements that they are opposed to counting those ballots, and any other defective ballots.
Meanwhile, the Republican nominee for governor in the November general election, Doug Mastriano, has said he supports doing away with universal voting by mail if elected.
In Philadelphia, the chairwoman of the election board said she supports counting the undated ballots, and noted that she has long held that the defect shouldn't eliminate a voter's ballot from the results.
The defect has actually increased in number since universal voting by mail was signed into law in Pennsylvania in 2019, according to data provided by Philadelphia City Commissioner Lisa Deeley this week.
| Election | Percentage of Mail Ballots Returned Undated |
| 2020 General Election | .6% |
| 2021 Primary Election | 2.1% |
| 2021 General Election | 2.4% |
| 2022 Primary *Incomplete Totals* | 2.7% |
Will PA Count Undated Ballots?
The secretary of state, who oversees election certification, has instructed the counties to tally the undated mail-in ballots as part of the overall results from the May 17 primary. However, counties are to "segregate" those ballots in case a court ruling determines that the ballots should not be counted.
The secretary of state added in its guidance to counties that Gov. Tom Wolf's administration believes those votes should be counted.
"However, out of an abundance of caution the Department advises, that those ballots should be segregated and remain segregated from all other voted ballots during the process of canvassing and tabulation," the guidance issued May 24 read. "In other words, those ballots with undated ballot return envelopes or with incorrectly dated ballot return envelopes that have been set aside, should continue to be maintained, preserved, and appropriately logged pending litigation, which we anticipate will be undertaken on an expedited basis."
