As of Monday evening, Mehmet Oz was leading David McCormick by fewer than 1,000 votes — well within the margin for an automatic recount in the state.
McCormick’s lawsuit, filed in state court, sues the state’s chief election official and county election boards in order to compel them to count the undated ballots that were returned on time.
The 3rd Circuit Court of Appeals ruled on Friday that the state’s laws requiring ballots be dated by the voter was “immaterial” under a federal statute that originated with the Civil Rights Act of 1964 — meaning it should have no bearing over whether ballots are accepted or rejected.
Since Oz is ahead, he likely stands to benefit if fewer additional mail-in and absentee ballots are tallied. McCormick, meanwhile, has been outperforming Oz in those ballots, meaning he could gain if more of those votes are counted.
Grace Griffaton, a spokesperson for the Department of State, said Monday afternoon that there were approximately 5,400 Republican mail-in and absentee ballots left to count, but it is “likely that the estimates include rejected ballots that have not yet been recorded.” It is unclear how many undated ballots have been processed.
Absent any guidance from the Department of State, some counties have already decided to count undated ballots in light of the circuit court ruling. Northampton County plans on tallying 380 undated ballots across both parties, according to The Morning Call.
Others counties are more hesitant to do so. In an email attached to McCormick’s lawsuit, an attorney for Blair County emailed lawyers representing both McCormick and Oz about the uncertainty around these ballots.