The race between David McCormick and Dr. Mehmet Oz for the GOP nomination to replace Republican Sen. Pat Toomey of Pennsylvania is heading to a recount more than one week after Election Day. '
According to unofficial counts reported by counties throughout the commonwealth on Tuesday, the margin between the two candidates was just 902 votes, according to Pennsylvania Secretary of State Leigh Chapman. That is within the 0.5% automatic recount threshold.
Days before, McCormick, the former hedge fund manager running to represent Pennsylvania in the U.S. Senate, has filed a lawsuit arguing that the state should count mail-in and absentee ballots that were submitted without dates on them, escalating a dead heat race against the Trump-backed celebrity doctor, Mehmet Oz.
The suit, filed on Monday in the Commonwealth Court of Pennsylvania, alleges that election officials have hurt McCormick's odds by throwing out ballots that had no voting dates written on them even if they arrived on time.
"These ballots were indisputably submitted on time – they were date-stamped upon receipt – and no fraud or irregularity has been alleged," the suit says.
Chuck Cooper, McCormick's chief legal counsel, told NBC News this week that a significant amount of precedent exists to warrant a legal challenge.
"Both the Pennsylvania Supreme Court and the United States Court of Appeals for the Third Circuit have held that mail-in ballots should not be disqualified simply because the voters failed to hand write a date on the exterior mailing envelope of their ballots," Cooper said. "Because all ballots are time stamped by the County Boards of Elections on receipt, a voter's handwritten date is meaningless."
State law currently mandates that voters write the date on all outer return envelopes for mail-in ballots – a requirement that the state GOP has fought to protect, according to The New York Times. On Friday, the 3rd Circuit Court of Appeals ruled that the requirement was "immaterial," meaning that it should not dictate whether ballots turned in on time are counted. However, that decision has yet to be officially applied by election administrators.
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McCormick's suit strikes a markedly different tone than Republicans have in the past when it comes to mail-in ballots. During the 2020 presidential election, many GOP lawyers and lawmakers cast doubt over the practice by baselessly alleging that it opens the door for voter fraud.
Notable among them is Ronald L. Hicks Jr., a lawyer for McCormick, who joined a brigade of right-wing attorneys in 2020 to challenge the validity of mail-in ballots, as the Times noted. Now representing McCormick, Hicks is arguing that mail-in ballots must be counted to ensure a fair election in the Pennsylvania primary. "The boards' refusal to count the ballots at issue violates the protections of the right to vote under the federal Civil Rights Act and the Pennsylvania Constitution," Hicks wrote in the suit.
McCormick could have chosen to waive his right to a recount but decided not to. A recount must conclude by noon on June 7 with results submitted by noon on June 8.