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McCormick sues to get more Pa. mail votes counted in GOP Senate primary

David McCormick, a Republican candidate in Pennsylvania for U.S. Senate, talks to supporters in Pittsburgh as returns for the primary election show a close race during his watch party on May 17. (Keith Srakocic/AP)
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With a slim margin separating the top contestants in Pennsylvania’s Senate Republican primary, the race is almost certainly heading to a recount — and also to court, following candidate David McCormick’s latest push to ensure that mail-in ballots lacking handwritten dates aren’t discarded.

In a lawsuit filed Monday, McCormick alleged Pennsylvania’s county boards of elections are “keeping voters in limbo” because of their refusal to count those absentee and mail-in ballots — something he deemed a violation of “the protections of the right to vote under the federal Civil Rights Act and the Pennsylvania Constitution.”

McCormick is locked in a too-close-to-call race, trailing celebrity doctor Mehmet Oz by a less than 0.1 percent margin — or some 987 votes, according to The Washington Post’s primary elections tracker. Under the state’s law, a difference of 0.5 percent or less would trigger an automatic recount.

“These ballots were indisputably submitted on time — they were date-stamped upon receipt — and no fraud or irregularity has been alleged,” the lawsuit states.

Pennsylvania GOP Senate race is likely headed to a recount

Pennsylvania law requires absentee or mail-in voters to return their ballots by 8 p.m. on Election Day inside a sealed envelope that is placed into a second envelope they must “fill out, date and sign.” The outer envelope then carries a postmark from the post office and a timestamp delineating when counties received it.

The constitutionality of the date provision came into question last year during a county election. A three-judge panel ruled Friday that such a requirement was “immaterial” — and thus, if used to reject a vote, in violation of the Civil Rights Act. It also directed county election officials to count hundreds of ballots without handwritten dates as long as they were received on time and “no fraud or irregularity has been alleged.”

The ruling became the basis for the complaint filed by McCormick.

“Every Republican primary vote should be counted, including the votes of Pennsylvania’s active-duty military members who risk their lives to defend our constitutional right to vote,” Jess Szymanski, a campaign spokeswoman, said in a statement to The Washington Post.

It’s unclear how many ballots lack handwritten dates in the seven-candidate race to replace Sen. Patrick J. Toomey (R), who’s stepping down this year. Counties are still tallying votes — such as military and overseas ballots — that could continue arriving through this week and are valid as long as they were postmarked by the May 17 Election Day deadline.

McCormick, a former hedge fund chief executive and Army veteran, ran neck and neck against Oz, who’s backed by former president Donald Trump.

But McCormick might edge closer to Oz if the ballots without handwritten dates are counted. While Oz has fared better with in-person voting, mail-in ballots slightly favor McCormick, who has captured 32 percent of the state’s mail votes versus Oz’s 23 percent, according to Pennsylvania Department of State data.

Oz’s campaign, meanwhile, staunchly rejected McCormick’s bid to count what Oz has deemed “legally rejected ballots” in a statement that underscored Republicans’ increasingly negative attitudes toward mail-in voting.

“Unfortunately, the McCormick legal team is following the Democrats’ playbook, a tactic that could have long-term harmful consequences for elections in the Commonwealth of Pennsylvania,” Oz’s campaign manager, Casey Contres, wrote Saturday. “It is a clear contrast between Dr. Mehmet Oz’s efforts to secure America’s democratic process.”

As Trump falsely assails another election, Pa. officials gird for November

Approval of voting by mail has become deeply partisan — especially after Trump’s repeated false attacks on the voting method. According to a 2021 Pew Research Center study, 38 percent of Republicans said they were in favor of allowing all voters to vote early or via absentee ballot; 84 percent of Democrats indicated the same.

In a statement posted on Twitter, the Republican Party of Pennsylvania said it would “absolutely object” to counting mail-in ballots without handwritten dates in the hotly contested race — a message echoed by Trump as he urged Oz to proclaim himself the winner.

It would make it “much harder for them to cheat with the ballots that they ‘just happened to find,’ ” Trump wrote on Truth Social in a post mimicking his attempts in 2020 to stop the mail-in ballot count in Pennsylvania.