Mail ballots spark bitter dispute in Pa. GOP Senate race

PHILADELPHIA — Republicans had hoped they would be united behind a nominee in Pennsylvania’s Senate GOP race by now. The hard-fought, multimillion-dollar primary would be behind them and they’d be well on their way toward holding the seat left vacant by GOP Sen. Pat Toomey.

Instead, a bitter fight over mail ballots in the still-too-close-to-call contest is driving a wedge between Republicans ahead of the general election in this critical battleground state.

David McCormick, who is trailing Dr. Mehmet Oz by fewer than 1,000 votes as of Tuesday afternoon, is going to court in an effort to direct election officials to count mail-in and absentee ballots that don’t have a written date on their envelopes. Oz has taken the opposite position, arguing that those ballots should be rejected — and the state and national Republican Party have taken his side by saying they’ll intervene to block McCormick’s lawsuit.

Some of McCormick’s supporters see the moves by the state party and the Republican National Committee as thinly veiled attempts to bolster the win-loss record of former President Donald Trump, who endorsed Oz.

“It seems as if [state Republican Party Chair Lawrence] Tabas is putting Trump’s scorecard above the voters of the GOP he leads,” said one pro-McCormick Republican.

The dispute also raises the prospect that Republicans could enter the general election with some party voters feeling that their Senate candidate lost by a technicality. A battle over mail-in ballots is especially fraught for the GOP — awkward, even — in the wake of Trump’s war on the voting method. And instead of training their firepower on Democratic nominee John Fetterman, Oz and McCormick are still aiming it at each other, albeit largely behind the scenes through lawyers.

“You don’t have a winner who’s already out there taking his victory lap, and that’s a negative,” said Mike Conallen, a Pennsylvania-based Republican strategist. “You don’t have the opportunity to go after and define your opponent, who’s recuperating right now.”

The battle between Oz and McCormick over undated mail ballots was set off when the 3rd Circuit Court of Appeals ruled on Friday that such ballots must be counted in the case of a 2021 judgeship election. McCormick, who is outperforming Oz in mail ballots, stands to gain if more are counted, while Oz’s lead could potentially dwindle. Election officials have said undated mail ballots are time-stamped when they are received, and they currently accept those with incorrect dates, such as a voter’s birthday, written on them.

The fact that the Republican primary remains undecided one full week after the May 17 primary — while Fetterman is off the campaign trail recovering from a stroke — means one of the most consequential statewide races in the country is essentially frozen. Retaining control of the Pennsylvania Senate seat is crucial to GOP hopes of winning back a Senate majority.

McCormick is already feeling pressure from his party.

Doug Chew, a Republican member of the Westmoreland County Board of Elections, said he was “disappointed” to see the McCormick campaign’s efforts to have undated ballots counted.

“Many strong Republicans have spent hours in court for election integrity, working to have laws upheld as they were written and approved by both parties,” said Chew, who did not endorse a candidate in the Senate primary. “Is this the new normal for elections? ‘We have a set of rules, but we’ll only use them when they suit us, and we’ll cry foul when they don’t help us?’”

The Pennsylvania GOP said in a statement on Monday that “we absolutely object to the counting of undated mail-in ballots” and that “Pennsylvania law and our courts have been very clear” that they shouldn’t be tallied.

In announcing that it would intervene in McCormick’s suit along with the state party, Republican National Committee Chief Counsel Matt Raymer said that “election laws are meant to be followed, and changing the rules when ballots are already being counted harms the integrity of our elections.”

Tabas, the Pennsylvania GOP chair, sought to make clear that the state party’s stance was unrelated to the candidates themselves.

“Our position in this current legal matter is representative of our long-standing position on election law matters,” he said in a statement. “We are seeking to intervene in the recently filed litigation for the purpose of protecting the rights of all of our 2022 and future candidates, and it is in no way a change from the Party’s vote to be neutral in the 2022 Primary races. We look forward to working with whoever is the nominee, once the Primary results are certified.”

James Schultz, McCormick’s campaign chair, shot back at Tabas, accusing him of “seeking to invalidate GOP votes, which were stamped timely” and caring little about the “400,000-plus Republican America First voters who cast a valid ballot for Dave McCormick.”

“This is quite surprising since it is his job to grow GOP voters and bring the party together, not to cast them aside and drive wedges,” he said.

Marc Elias, a top Democratic lawyer, has seemed eager to stoke GOP divisions in the drawn-out primary. Referring to McCormick’s suit, he tweeted, “My team was literally working on this same lawsuit for the November election.” Later, he said, “Perhaps we will intervene in favor.”

Casey Contres, Oz’s campaign manager, retweeted Elias Tuesday, saying, “I always knew we’d have to deal with Elias’ nonsense this cycle. Just didn’t think it would be during a Republican Senate primary.”

Ray Zaborney, a consultant for the pro-McCormick super PAC Honor Pennsylvania, said that the undated ballots should be tallied.

“These ballots were date-stamped, meaning we know they arrived before the deadline, and I think we should try to go the extra length to count every Republican who wants to vote in a primary and who did so in a time-appropriate manner,” he said.

The National Review published a column Tuesday that likewise argued “the ballots should be counted.”

Still, Republicans said they are confident they will be able to come together after the primary is finished. And they pointed out that a recount must be completed by June 7.

“Republicans still see this as an unbelievable opportunity, a great environment. We’re going to have a tailwind behind us in November,” said Conallen, who did petition work for McCormick. “I don’t think this pause or waiting is negatively impacting whoever the ultimate winner is. You may even say it benefits them in that Fetterman and his campaign, they can’t do anything to try to define their opponent because they don’t know who it is yet.”

Christopher Nicholas, a longtime Pennsylvania-based GOP consultant who did not work for either Senate candidate, put it bluntly: “John Fetterman will heal all those wounds.”

McCormick tweeted on Tuesday, “Once we have counted all Republican votes received on time, we will unite behind a strong GOP nominee to defeat socialist John Fetterman. All Republicans should be focused on that goal.”

McCormick has made several attempts to fast-track his court case in Pennsylvania.

One filing with a lower court asked the court to issue an injunction instructing election officials to count the undated ballots before a hearing was scheduled, saying Tuesday’s unofficial canvassing deadline risks leaving those ballots out.

“Voters in [those] counties will be denied that right in a matter of hours,” the filing reads.

“Counting their votes will cause no harm to the [county boards of elections] and could cause no harm to the public interest, which is best served when valid votes of all qualified voters are counted.”

Shortly after that, McCormick asked the state Supreme Court to take up its plea directly. In that filing, attorneys for McCormick excoriated the dating requirement.

“The right to vote is sacrosanct,” that filing to the state Supreme Court read. “The handwritten date on an exterior mailing envelope that contains a receipt-stamp or an indisputably timely received absentee or mail-in ballot … is anything but.”

McCormick’s filing argues that election officials’ decision to accept any date on the ballot makes a missing date irrelevant. “If a voter could date his ballot May 32, or 300 B.C.E., and if that error, taken as true and correct, does not impede elections officials from determining his qualification to vote, then the absence of a handwritten date cannot be material,” it reads. “Nothing would be gained by reading the statute any differently. The date on the exterior envelope does not help determine whether the voter in fact is qualified to vote under Commonwealth law.”

As of 6 p.m. Tuesday, the courts have not responded to McCormick’s filings, nor has the RNC formally filed to intervene in the case yet.