Lawyers for McCormick and Oz Argue Over Undated Ballots in Court

Lawyers for David McCormick and Dr. Mehmet Oz wrangled for more than three hours on Tuesday in a Pennsylvania courtroom over whether to count undated mail-in ballots in the Republican primary race for the Senate, with fewer than 1,000 votes separating the rivals and a statewide recount underway.

In a pivotal contest that could ultimately determine control of the closely divided Senate, Mr. McCormick, a former hedge fund executive, was trailing the Trump-backed celebrity physician by less than 0.1 percent of the vote — well within the 0.5 percent threshold for an automatic recount.

Mr. McCormick filed a lawsuit on May 23 that asked the Commonwealth Court of Pennsylvania to allow county election officials to accept mail-in ballots from voters who turned them in by the May 17 deadline but did not write the date on the outer return envelopes.

That step is required by a state law, which Republicans have fought to preserve.

Renée Cohn Jubelirer, the court’s president judge, did not issue a ruling at the conclusion of the hearing in Harrisburg, Pa., but said that she would render one as quickly as possible.

Here is what was said:

McCormick’s lawyers characterized handwritten dates as ‘utterly irrelevant’

Ronald L. Hicks Jr., a lawyer for Mr. McCormick, said that at least 812 undated ballots had been cast by Republican primary voters but were not counted by election officials statewide, a statistically significant number.

“So these ballots matter,” Mr. Hicks said. “So the numbers are moving. The numbers are fluid. These ballots could impact that gap significantly.”

Mr. McCormick’s lawyers cited a recent federal court ruling that barred elections officials in Lehigh County, Pa., from rejecting absentee and mail-in ballots cast in the November 2021 municipal election because they were not dated.

The lawyers asserted that the handwritten dates were immaterial, with Chuck Cooper, Mr. McCormick’s chief legal counsel, saying that they served no other purpose than to disenfranchise otherwise qualified voters and “play games of gotcha with them.”

Oz’s lawyer says his lead is insurmountable

Even if the disputed ballots were to be counted, there are not enough outstanding votes to change the outcome of the race, John M. Gore, a lawyer for Dr. Oz, argued in court.

In a campaign video released on Friday, Dr. Oz proclaimed himself the presumptive Republican nominee.

Mr. Gore said the court should hold off on ruling on the ballots’ status until after the statewide recount concludes — counties have to complete the process by June 7 and report their results to the state by June 8. The ballots should be set aside, with counties reporting the total number, but not counting the votes, he said.

Saying that the voters of Pennsylvania had spoken, Mr. Gore suggested that Mr. McCormick’s claims of voter disenfranchisement were self-serving.

“Mr. McCormick’s only interest here is in trying to overtake Dr. Oz,” Mr. Gore said, adding that enforcing the rules for voting was different than disenfranchisement.

Republicans sided with Oz

Thomas W. King III, a lawyer for the Republican National Committee and Pennsylvania Republican Party, claimed that making voters write the date on the return envelopes for mail-in ballots was aimed at preventing fraud.

“It confirms when someone says that they voted,” Mr. King said. “It could be relevant in a ballot harvesting issue.”

To change the rules after all the votes had been cast, he said, would undermine the integrity of the election.

Pennsylvania’s top election official aligned with McCormick

Despite being named as a defendant in Mr. McCormick’s lawsuit, Pennsylvania’s top election official — Leigh M. Chapman, the acting secretary of the commonwealth, who was appointed in December by Gov. Tom Wolf, a Democrat — concurred that undated ballots should be counted.

Ms. Chapman, a lawyer who previously led a nonprofit promoting mail-in voting, was represented during the hearing by Michael Fischer, Pennsylvania’s chief deputy attorney general. He said the date requirement had created significant confusion for voters in the past.

“The date that the voter fills out the ballot does not matter in any way, shape or form,” Mr. Fischer said, adding that it “does not help to prevent fraud. It does not prevent double voting. And it does not go to the eligibility of the voter.”

Explaining that some people write their birth date or the wrong year on the envelopes, Mr. Fischer said that the average age of voters in the Lehigh County case who omitted the date was 71.

The judge peppered lawyers for both candidates, especially about the significance of handwritten dates

Judge Cohn Jubelirer returned several times to the crux of Mr. McCormick’s lawsuit: the missing dates for the ballots.

“So tell me, why does the date matter?” she asked.

Dr. Oz’s lawyer, Mr. Gore, said that the handwritten dates could play an important role if questions arose about a voter’s eligibility, arguing that if a person moved or died before the handwritten date on the envelope, the date could point to fraud.

The judge wondered whether the instructions that voters “shall” sign and date the envelope were ambiguous and asked Mr. Gore whether he had ever put the wrong date on something.

“So that should defeat a person’s ability to vote?” Judge Cohn Jubelirer said.

Her tough questioning was not limited to Dr. Oz’s lawyer.

She pressed Mr. Cooper, a lawyer for Mr. McCormick, asking who the aggrieved parties were in the lawsuit. He answered that it was the voters.

“Do you represent the voters?” she responded.

Mr. Cooper was ready with a comeback, alluding to Mr. McCormick.

“I represent one voter,” he said.