Oz vs. McCormick on Ballots in Pennsylvania’s Senate Race

An election employee continues the method in counting ballots for the Pennsylvania main election on the Mercer County Elections Board, Mercer, Pa., Might 18.


Keith Srakocic/Related Press

After every week of counting ballots,

Mehmet Oz’s

lead within the Pennsylvania GOP Senate main has fallen to 992 votes. Down, down it goes, and the place it stops no person is aware of. Pennsylvania’s sluggish processing of absentee ballots is dangerous sufficient, however each time the margin narrows, it raises the chances that this can flip into a bigger mail-vote fiasco.

As of Monday, loads of ballots have been up within the air, together with 2,000 provisional votes from each events in Allegheny County. That’s a stronghold for Mr. Oz’s rival,

David McCormick.

The 2 sides are additionally jockeying over mail ballots that voters uncared for up to now. Mr. McCormick needs them counted, since he’s profitable 32% of mail votes statewide, versus 23% for Mr. Oz, who’s urging the other.

The Pennsylvania Supreme Court docket dominated two years in the past that undated ballots are invalid, even when they arrive on time. State legislation clearly says voters should “fill out, date and sign” the poll envelope. But 5 Pennsylvanians who apparently can’t comprehend fundamental directions sued in federal courtroom after their undated ballots have been rejected in final yr’s judicial elections.

On Friday the federal Third Circuit Court docket of Appeals ordered that these undated 2021 ballots be counted. The judicial panel hasn’t posted its full opinion, however its judgment cites the Civil Proper Act of 1964. That legislation prohibits officers from throwing out ballots with minor errors, “if such error or omission is not material in determining whether such individual is qualified under State law to vote.” Within the Third Circuit’s opinion, a lacking handwritten date on a well timed poll is “immaterial.”

Now counties are in a pickle as they contemplate undated ballots from final week’s main. Do they put aside such votes, because the state Supreme Court docket mentioned? Do they observe the Third Circuit’s view of a 2021 election, although the ruling may very well be appealed?

The figures look small, however there’s an opportunity they may very well be decisive if Mr. Oz’s lead continues to drop. Allegheny County says it has 42 undated GOP ballots. Montgomery County has 46, which can keep “unopened while we await guidance from the Pennsylvania Department of State and any potential legal action.” What if some counties rely undated ballots and others don’t?

The worst consequence will likely be if a federal courtroom finally ends up selecting the winner. In any case, state legislatures shouldn’t look ahead to eventualities like this to explode sometime, someplace. Undated ballots and the like are the brand new hanging chads, a supply of indeterminacy, which is election poison. In the event that they flip the end result, either side can plausibly argue they gained.

As for the Third Circuit’s argument, does it apply to different goofs? Pennsylvanians are supposed to place mail ballots into unmarked secrecy envelopes, which go contained in the return envelopes. If a “naked ballot” is shipped in, it’s rejected. In 2020 the state Supreme Court docket upheld that legislation. Would the Third Circuit name an enveloping error “immaterial”? Allegheny County has 658 naked ballots for each events. One other 14 have “identifying marks on the secrecy envelope.”

With a bit of luck the U.S. Supreme Court docket will tidy up the Third Circuit’s mess, and state legislatures will act earlier than 2024 to make clear muddled legal guidelines on mail voting. But when that fails, look out for extra ballot-counting chaos, and extra public distrust in election outcomes.

Journal Editorial Report: Democrats moved left, Republicans moved proper. Photographs: Getty Photographs Composite: Mark Kelly

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