David McCormick, Mehmet Oz, and the politics behind undated Pennsylvania mail ballots

The ongoing fight over whether to count undated Pennsylvania mail ballots was a partisan one — until now.

Since 2020, Republicans have fought to have undated ballots thrown out, while Democrats have argued they should be counted. But now, the neck-and-neck Republican Senate primary has put rivals Mehmet Oz in the institutional Republican position of wanting undated ballots rejected, and David McCormick in the normally Democratic position of wanting those technically defective ballots counted.

On its face, the current back and forth is over a small number of undated ballots in just one election — likely several hundred votes at most. But the fight has broader implications for November and beyond.

Questions about which votes get counted, and the requirements for successfully casting a vote, are fundamentally voting rights questions — and a federal appeals court ruling Friday relied on the Civil Rights Act to determine that undated ballots should still be counted.

But those legal questions are also political ones, and positions on voting have become central to both parties’ identities — with Republicans calling for changes to an election system former President Donald Trump continues to attack, and Democrats pushing back against restrictions in the name of protecting democracy.

Democrats are now much more likely than Republicans to vote by mail. And that has a practical partisan implication, unspoken by the GOP as it seeks to block the undated ballots from being counted: Any effort to reject mail ballots is much more likely to get Democratic votes thrown out than Republican ones in a general election.

Now the fight between McCormick and Oz is causing intra-party debate within the GOP.

McCormick campaign advisEr Jim Schultz lashed out Tuesday at the state party chair for wanting undated Republican mail ballots to be thrown out.

“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,” said Schultz, who formerly worked in the Trump White House.

McCormick, who narrowly trails in the count, sent a letter to every county Friday asking them to count the ballots. The campaign sued Monday in Pennsylvania’s Commonwealth Court to compel counties to do so, and on Tuesday asked the state Supreme Court to take over the case.

These are ballots that arrived to counties on time —– before 8 p.m. on primary day — but on which voters did not date the outer envelope next to their signature, as required by state law. It’s unclear exactly how many undated GOP ballots there are statewide, but it’s likely at most just a few thousand, if that.

Oz led McCormick by fewer than 1,000 votes as of late Tuesday.

» READ MORE: Everything to know about the Pa. Senate race, recount rules, undated mail ballots and more

Courts had previously ruled those ballots can’t be counted, but a federal appeals court late last week ruled the opposite in a case over undated mail ballots in Lehigh County, sending both campaigns and their lawyers into a flurry of action.

The Republican Party has lined up behind Oz on the issue — both the state and national parties said they’d file a motion to intervene in McCormick’s lawsuit on Oz’s behalf. Neither say it’s about the candidate, but about the principle of the issue: Voters should have to follow the rules when voting.

“Our position in this current legal matter is representative of our long-standing position on election law matters,” state GOP chair Lawrence Tabas, a longtime top election lawyer, said in a statement Tuesday . He was careful to say the party’s position had nothing to do with backing a specific candidate.

Neither Oz nor McCormick were endorsed by the state or national party.

Trump endorsed Oz.

“Either of Pennsylvania’s leading Republican Senate candidates would represent the Keystone State better than a Democrat,” RNC chief counsel Matt Raymer said. “But Pennsylvania law is clear that undated absentee ballots may not be counted.”

An RNC spokesperson said its intervention in the case is about this election, as well as future contests: “We just want to ensure that states continue to follow the laws on the books — now, in November and in elections to come.”

A source familiar with the Oz campaign framed McCormick’s push to count undated ballots as a move out of a Democratic playbook that could set a dangerous precedent for Republicans in future elections.

On Monday afternoon, Oz campaign manager Casey Contres quote-tweeted a Democratic election lawyer, Marc Elias, who endorsed McCormick’s fight to count the undated ballots.

“I always knew we’d have to deal with Elias’ nonsense this cycle,” Contres wrote. “Just didn’t think it would be during a Republican Senate primary.”

While the undated ballots in this election could help McCormick, who has done better with mail ballots so far, Democrats would likely benefit in November if such ballots are counted.

Democrats vote more frequently by mail than Republicans. While 42% of Democratic votes in last week’s primary — more than two out of five — were cast by mail, only 11% of Republican ones were.

McCormick has argued his lawsuit is about counting all “legitimate” Republican ballots.

“They’ve all been time-stamped by the county board of elections, and these are legitimate votes,” he said Tuesday on the Hugh Hewitt radio show. “Where the voters didn’t handwrite the date on them, but again, they were time-stamped. So if they were time-stamped, why would anyone want to throw those votes out?”

» READ MORE: There’s another high-profile vote count in Pa., but Republicans aren’t objecting this time

Undated mail ballots have been a recurring front in the fight over mail voting in Pennsylvania. They’re one in a line of questions county election officials have faced, like what if a ballot is missing a signature, or the date, or the inner secrecy envelope? Several of those issues have also resulted in lawsuits, typically Republicans suing to reject ambiguous votes and Democrats suing to count them.

Prior to 2020, the divide was more geographic than partisan, with several deep red states like Utah utilizing mail voting at high rates.

But as Trump repeatedly attacked mail voting with a series of lies about fraud and rigged elections, he helped create a stark partisan divide that persists today. That also came as Pennsylvania dramatically expanded mail voting.

While the division is stark, tens of thousands of Republicans still vote by mail, including more than 172,000 Republican voters in last week’s Senate primary.