PA election: Now for the arcane stuff

As of Friday, May 21, 2022, Dr. Oz leads McCormick by 1,070 votes in the GOP Senate primary. It’s a fragile, razor-thin lead.

This election probably will go to an automatic recount, as provided by Pennsylvania law. Recounts are always more accurate, because they pick up ballots that were miscounted or simply missed. And when an election is this close, both sides start maneuvering for every vote they can get.

There are several fronts on which down-to-the-wire election battles are waged. In Pennsylvania, the opening shots are being fired over mail-in ballots.

CNN says McCormick has “outperformed” Oz “when it comes to mail-in ballots,” so McCormick’s campaign wants undated ballots counted, and Oz’s campaign doesn’t (read story here).

In a letter to county canvassing boards, the McCormick campaign specifically referred to “mail-in ballots that were timely received but were set aside/not counted simply because those ballots lacked a voter-provided date on the outside of the envelope.”

Counting ballots received by election offices before the deadline seems a no-brainer. But wait, not so fast! Does Pennsylvania law require the voter to put a date on her/her ballot in order for it to be counted? I don’t know.

This problem is similar to ballots that are either unsigned (because voters forgot to sign them) or have illegible or non-matching signatures. Some states, including Washington where I live, allow voters to correct a deficient signature and there’s a procedure for that. It seems to me a missing signature is more material than a missing date, but whether an undated ballot is countable is determined by applicable law.

Here’s where things in the Pennsylvania contest get really arcane. A federal appeals court ruled on Friday, May 21, that undated ballots in a different Pennsylvania election, for a county judge, should be counted.

The McCormick campaign jumped on this and immediately sent the aforementioned letter to all 67 county canvassing boards, saying in so many words: “Hey, you have to count those ballots, there’s a court decision saying so!” Not so fast. This court ruling isn’t binding, because it involves a different election. It suggests how courts would decide the same issue if this election goes to court, but at this point canvassing boards don’t have to follow it.

The Oz campaign responded, “Dr. Mehmet Oz continues to respectfully allow Pennsylvania’s vote counting process to take place and puts his faith in the Republican voters who we believe have chosen him as their nominee. That is why our campaign will oppose the McCormick legal team’s request that election boards ignore both Pennsylvania Supreme Court and state election law and accept legally rejected ballots.”

This is stretching things. Voters haven’t chosen Oz as the GOP nominee. That remains TBD (“to be determined”) until all the legal votes are counted, and disputes over which votes are legal get resolved. And the courts, not the Oz campaign, have final say on the legality of disputed ballots.

But right out of the gate, Pennsylvania’s top election office disagrees with the Oz assertions. A spokesman said, “We are pleased that the 3rd Circuit agreed with the Commonwealth’s interpretation of the statute, which will help ensure that voters who inadvertently fail to date their ballot are not disenfranchised by that error.” If the Pennsylvania Supreme Court has previously gone with Oz’s position on undated ballots (I don’t know if it did), but got overruled by a federal court, they seem to be saying let’s ignore the federal court ruling. That might rally their supporters around a flagpole, but it ain’t gonna fly in the legal arena.

It does, however, buck up their supporters’ morale during the nail-biting time and maybe also bolsters efforts to raise money for the court battles to come, which will cost millions.

My point in writing and posting this article is this: Elections may look simple on the surface, but when an election is close, things get complicated fast. When just a few votes separate candidates, and every vote matters, tiny details become very important. An arcane rule or strategy can make the difference between winning or losing. In this case, battle lines are being drawn over mail-in ballots that voters forgot or neglected to date. Those votes weren’t late; the fight is over whether the absence of a date is disqualifying as a matter of legal technicality. This is the stuff of which post-election battles are made.

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