Alito delays counting of undated ballots in Pennsylvania

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Judge Samuel A. Alito Jr. on Tuesday suspended the counting of some disputed ballots in Pennsylvania while the Supreme Court continues to review a lower court’s decision to count them.

The administrative suspension issued by Alito involves a unanimous decision by a three-judge panel of the United States Court of Appeals for the 3rd Circuit. He said absentee ballots received on time but without a required date on the outer envelope should be counted. Alito is the judge who receives emergency requests from the 3rd Circuit.

The panel’s decision concerned a local judge’s race in Lehigh County. But that’s important because of the too-close primary for the Republican Senate nomination involving Mehmet Oz and David McCormick. McCormick, who trails Oz by less than 1,000 votes, filed a lawsuit in state court demanding that those “undated ballots” be counted.

The state’s requirement is that mail-in voters “complete, date and sign” a declaration form on the outer envelope used to return ballots. But federal judges said failing to count the votes of those who did not provide a date violated federal civil rights law because the requirement was immaterial to voter qualifications. There is no indication of fraud, the ballots were received before the state deadline, and election officials noted that they would have counted ballots with the wrong date, but not those without a date at all. , the judges said.

“We are unable to understand how the date on the outer envelope could be significant when incorrect dates – including future dates — are allowed, but envelopes where the voter has simply not filled in a date are not,” Judge Theodore McKee wrote. “Surely the right to vote is made of tougher things than that.”

Oz filed a brief supporting judicial nominee David Ritter. “The ill-reasoned and misguided Third Circuit ruling — which involved a county judiciary election conducted more than six months ago — is now armed to undermine the apparent outcome of a statewide primary election for the Republican nomination to represent Pennsylvania in the U.S. Senate,” Oz’s attorneys wrote in the Supreme Court brief.

The winner of the GOP primary will face Lieutenant Governor John Fetterman (D) in the general election, a crucial race for both parties hoping to take control of the Senate in November. Democrats view the race to replace incumbent GOP Senator Patrick J. Toomey as their best chance to flip a seat in an otherwise difficult political year for the party.

Former President Donald Trump has endorsed Oz and had urged him to declare victory before the end of the vote count. On Friday, Oz did just that in a video thanking Pennsylvanians for making him the “presumptive” Republican nominee.

The McCormick campaign says their mail-in ballot efforts will give them a boost if rejected ballots are counted. McCormick’s race with Oz is so close it’s triggered an automatic recount, which is underway statewide.

In a large, windowless storage room in a downtown Lancaster government building on Tuesday, three county workers put stacks of ballots into fast scanners and watched them scroll by on computer screens. They hope to complete the scanning of all ballots by Friday.

A McCormick campaign attorney watched, as did a volunteer observer for McCormick and one for Oz. In Lancaster, the state’s sixth-most populous county, there were 38 undated GOP ballots that, going forward, will not be counted.

The deal is Ritter versus Migliori.

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