Pennsylvania judge rules undated mail-in ballots should be counted in GOP Senate primary legal fight

The Republican primary race for an open U.S. Senate seat in Pennsylvania has been locked in an automatic recount plus a legal battle over whether undated mail-in ballots received before the end of Election Day should be counted.

At least part of that fight ended Thursday when a Pennsylvania judge ruled that hundreds of undated mail-in ballots must be counted by local and state election officials, Breitbart reported.

That decision was a victory for Republican candidate David McCormick, who trailed fellow GOP candidate Dr. Mehmet Oz by fewer than 1,000 votes — out of more than 1.3 million cast — but had been leading Oz in terms of mail-in ballots.

Undated ballots received on time should be counted, the judge rules

At issue in the legal fight were approximately 800 Republican mail-in ballots that had arrived prior to polls closing but had lacked a written date on the outer envelope as is required by state law.

According to The Philadelphia Inquirer, however, Pennsylvania Commonwealth Court Judge Renée Cohn Jubelirer ruled that the requirement risked unjustly excluding otherwise valid ballots and that the lack of a written date shouldn’t by itself warrant the rejection of said ballots.

“The absence of a handwritten date on the exterior envelope could be considered a ‘minor irregularity’ without a compelling reason that justifies the disenfranchisement of otherwise eligible voters,” the judge wrote in a 40-page opinion.

Her ruling was provisional, though, and while the judge ordered all county election officials to count the undated ballots in question, she also instructed the counties to keep them separate and prepare separate final tallies that both included and excluded those ballots, just in case her ruling was overturned by a higher court.

A federal appeals court recently ruled similarly

The Inquirer noted that Judge Jubelirer’s ruling mirrored that of one issued by a panel of federal judges for the Third Circuit Court of Appeals involving undated mail-in ballots from a disputed Pennsylvania judicial election in 2021, though that federal ruling was recently put on hold temporarily by Supreme Court Justice Sam Alito pending future hearings by the entire Third Circuit Court.

Interestingly enough, while McCormick had filed suit to have the undated ballots in his race counted, Oz had argued against the counting of those ballots and was joined by the state GOP as well as the Republican National Committee, which led to accusations that the RNC had violated its usual neutrality and “intervened” in the primary on behalf of Oz.

“Undated ballots should not be counted in Pennsylvania according to their state law. That is what this is about. This is about November, not this primary,” RNC chair Ronna McDaniel told Breitbart. “We absolutely did not intervene in this primary. The amount of undated ballots that are out there, we don’t know what that is. It certainly should not lead to a slippery slope that Democrats can use to upend election integrity in November.”

Short-lived victory as McCormick conceded the next day

All of that said, McCormick’s legal victory Thursday was short-lived, as Fox News reported Friday that McCormick went ahead and conceded the Senate primary race to Oz and encouraged his own supporters to back Oz as the nominee in November against the Democratic nominee, Pennsylvania Lt. Gov. John Fetterman.

Fox further noted that McCormick’s concession doesn’t fully end things, however, as state officials said the recount will continue until it is finished, not to mention the likelihood that Oz and the RNC may well appeal Judge Jubelirer’s ruling in an effort to prevent Democrats from trying to fraudulently exploit the inclusion of undated mail-in ballots in future elections.

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