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Federal Court Decision Could Affect Pennsylvania Senate Primary

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OPINION: This article may contain commentary which reflects the author's opinion.


A federal court case that has not gotten much attention could change the entirety of the Republican Senate primary in Pennsylvania between Dr. Mehmet Oz and David McCormick.

A three judge panel on the 3rd Circuit Court of Appeals issued a ruling that said election officials should count several hundred mail ballots that were received without a date on the envelopes in an election for county judge that were received on time, Politico reported.

It was not immediately clear how sweeping the reach of the circuit court’s ruling will be because a formal opinion from the panel is still forthcoming. But it could have a serious impact on the Senate race. Oz and McCormick were separated by about 1,100 votes as of Friday afternoon, and the ruling could introduce into the pool an as-yet-unknown number of similarly-situated ballots that would not have initially been counted.

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A spokesperson for the Department of State told POLITICO that it was not immediately clear how many ballots that were otherwise received in a timely fashion by county election officials were rejected because of a missing date. Ellen Lyon, a spokesperson for the agency, said that it would be “surveying counties to get that figure and issuing guidance to support them,” and anticipated having that information early next week.

But as an example, Nick Custodio, a deputy Philadelphia city commissioner, said there were 2,100 mail and absentee ballots that had been received without dates in Philadelphia as of Friday afternoon. Of those, about 100 were Republican ballots.

“Look, you have a federal Court of Appeals ruling in unmistakable terms that the date requirement is immaterial,” Adam Bonin, a Democratic election lawyer involved in the case, said.

“This is what the Department of State said: It just has to have a date on it,” he said. “And all the ballots, when they’re received by the counties, they get time-stamped, they get clocked in. So we know that they arrived on time. … So whether or not a voter handwrites in the date, it doesn’t matter at all. And I’m glad that this court recognized it.”

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Philadelphia City Commissioner Lisa Deeley said that the decision is a “major victory” for voters.

“The numbers of undated ballots are scary,” she said. “And even if the number were five, it’s still five too many. A voter’s done everything. They filled out the application. They got the ballot. We know we got the ballot back in time. … So it just always seemed like an unnecessary step and I’m glad that the federal court agreed.”

Federal law says that no person can be denied the right to vote “because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election.”

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In response to the case, a McCormick campaign official said “We’re glad votes are continuing to be counted.”

The Republican primary race for Pennsylvania’s open U.S. Senate seat is still too close to call as of Thursday.

An election tracker from The New York Times reports that 98% of the expected vote has been counted.

Television host Dr. Mehmet Oz, who was endorsed by Donald Trump, has a slight edge over former hedge fund CEO David McCormick.

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As of Thursday afternoon, Oz has 31.2% of the vote and McCormick has 31.1%. Conservative commentator Kathy Barnette is sitting at 24.7%.

The most likely outcome is that this race is headed for a recount.

Both Oz and McCormick acknowledged that a winner wouldn’t be determined on Tuesday night.

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“We’re not going to have a result tonight,” Oz told supporters, predicting that “after the votes are tallied, I am confident that we will win. We are making a ferocious charge.”

Oz made a point to thank Trump first during his speech.

“Let’s start with 45 – President Trump,” Oz said to cheers. “President Trump, after he endorsed me, continued to lean into this race in Pennsylvania…. God bless you sir for putting so much effort into this race. I will make you proud.”

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