Dave McCormick, who trails Mehmet Oz by a razor-thin margin in the Republican primary election for U.S. Senate in Pennsylvania, has sued in a state appeals court to have all 67 counties and the secretary of state count undated mail-in ballots toward the final tally.
Some of Pennsylvania's counties, which oversee ballot collections and tallies, are holding undated mail-in ballots "in limbo," McCormick's campaign said in a lawsuit filed Monday in Commonwealth Court.
The lawsuit cited a federal court ruling last week that ordered undated mail-in ballots received in last year's general election be counted toward final results.
A spokeswoman for McCormick's campaign said Oz, who on Monday led McCormick by 937 votes out of more than 1.3 million ballots cast last Tuesday, is trying to stop counties from tallying those undated ballots. The Oz campaign could not immediately be reached for comment. A recount is all but certain in the Republican primary for Senate, since it is mandatory in any election decided by 0.5% or less. Oz and McCormick are separated by less than 0.1%.
Get Philly local news, weather forecasts, sports and entertainment stories to your inbox. Sign up for NBC Philadelphia newsletters.
"These ballots were indisputably submitted on time — they were date-stamped upon receipt — and no fraud or irregularity has been alleged," the McCormick lawsuit said. "The (county election) Boards' only basis for disenfranchising these voters is a technical error that is immaterial under both state and federal law."
In Philadelphia, where 104 Republican voters mailed in ballots undated, the county Commissioner Chairwoman Lisa Deeley said she thinks the city election board should count those ballots in the May 17 primary. The three-commissioner board will vote on whether to include those undated ballots this week before sending the unofficial election results to the state for certification.
"The undated ballots will go before the board for a vote this week and I plan to vote to count them, just like I have done every time this category has come up, even after they threatened to impeach me,” Deeley said, referring to previous election cycles since 2020 when opposition to mail-in ballots undated or unsigned were contested in court. "I urge my fellow commissioners to join me in voting to count these ballots. We know when we mailed the ballots, we know when we got each one back and we know that they were all received timely. It is time to stop disenfranchising voters because of errors or omissions that are not material in determining whether such individual is qualified to vote."
McCormick's lawsuit flies in direct opposition to Republican lawmakers and campaigns who in the last two years have sought to restrict the use of mail-in ballots, particularly those that don't fully comply with state laws governing voting by mail.
Decision 2022 stories
However, despite Republican opposition, most challenges to mail-in ballots, including those by former President Donald Trump's campaign, have failed in state and federal appeals courts.
The Pennsylvania Republican Party said in a statement on Monday that it does not support McCormick's lawsuit.
On Tuesday morning, the National Republican Party said in a statement that it agreed with Oz's campaign that undated ballots should not be counted.
Determining a winner between McCormick and Oz through a recount could take weeks. The eventual victor will take on Democratic nominee John Fetterman in the November general election.