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

Pennsylvania primary election day is over, but we still don’t know the winner of the Republican Senate race.

With a dental floss-thin margin between celebrity doctor Mehmet Oz and former hedge fund CEO David McCormick, the election is almost certainly headed to a recount. And a new court ruling last week could benefit McCormick in the process.

It’s all pretty confusing. Here’s where things stand and what you need to know:

We don’t know yet.

As of Tuesday evening Oz had just 967 more votes than McCormick.

Some counties are still tallying their very last votes, such as overseas and military ballots that arrived through Tuesday as long as they were postmarked by the May 17 election.

All counties were required to send unofficial vote counts to the Pennsylvania Department of State, which oversees elections, by 5 p.m. Tuesday. (Even then, those unofficial vote counts are not final — thanks to the last tallies of votes like provisional ballots — and will change slightly before a recount.)

It’s unclear exactly how many uncounted votes remain, but it’s a small number. At this point, it may be in the low hundreds.

This count, unlike the one during the 2020 presidential election, has actually happened relatively quickly. Almost all the votes were tallied on primary day or the day after. It’s not the speed of the count stopping news outlets from declaring a winner, it’s the closeness of the race.

Some votes are always counted after election day — it’s just that they usually can’t affect the outcome. That’s true this year, too, in the Democratic primaries for Senate and governor, and the GOP primary for governor. Votes continue to be counted in those races, but the winners are already clear.

Of the votes that have been counted, Oz had a lead of just 967 votes Tuesday evening.

It’ll take a while.

The unofficial count Tuesday will will tell us who’s on top heading into a recount — and how close the margin is.

A recount wouldn’t begin immediately after it’s ordered, which means recounted votes probably won’t start streaming in until next week. As they do, we’ll start to get a sense of whether one candidate is picking up more votes in the recount.

The recount would need to be completed by June 7, with the final results announced June 8.

Almost definitely.

Pennsylvania election law requires an automatic recount if the difference between the top two candidates for a statewide office is 0.5% of the vote or less.

Such a recount has been triggered six times since the law was enacted in 2004 — most recently in last November’s general election for Commonwealth Court. With almost all the votes counted in this election, Oz and McCormick are separated by less than one-tenth of a percentage point — well within the 0.5% recount margin.

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

It’s possible the gap widens enough that one candidate wins without a recount, but that’s extremely unlikely. In fact, if it does happen, it could trigger suspicion from officials — there’s no reason to expect the last votes would break so fully in one candidate’s favor.

The trailing candidate can waive a recount by noon Wednesday. That’s happened in three of the previous six times a recount was triggered. But it appears unlikely this time, since neither campaign seems interested in backing down.

Yes. The numbers will almost certainly shift a bit during a recount. This is a normal part of a recount process, and it’s part of why recounts happen. There’s a very small amount of error in counting votes because voters don’t submit perfectly clean, precisely filled-out ballots. When the results are close enough that the error can matter, we head to a recount.

Here’s one hypothetical: A voter fills in half a bubble to vote for a candidate, changes their mind and X’s out that vote, then fills in a bubble for another candidate. The ballot scanner reads the original vote, with the X leading it to think that the voter wanted that candidate.

During a recount, a different machine — especially one set to be more sensitive for the recount — may be more likely to kick that ballot out instead of reading out, flagging it for human review.

The general “voter intent” standard in that case is that elections workers try to determine what the voter meant to do.

As the numbers shift, either candidate could end up adding hundreds or even thousands more votes statewide. That’s not “finding” votes. It’s just part of the recount process.

The candidate who leads in the vote count going into a recount has almost always come out the winner after the recount. None of the previous statewide recounts changed the result. But we’re talking about such slim margins here that it’s certainly possible.

State law requires voters to sign and date the outside mailing envelope when they return their mail ballots, and state courts have held that the requirement means undated ballots must be rejected.

But a federal lawsuit over undated mail ballots in Lehigh County from last year jolted the vote count Friday, when a federal appeals court said those votes should be counted.

» READ MORE: The Oz and McCormick campaigns are already fighting over undated Pa. mail ballots as Senate primary recount looms

Though the court didn’t immediately issue an opinion, several lawyers from both parties said the text of the order means counties could — or perhaps even should — count undated mail ballots in this race.

That’s sent elections officials scrambling to figure out whether to count ballots they thought they would reject. And it kicked off a fight between the campaigns, with lawyers for McCormick urging counties to accept undated ballots and Oz attorneys calling for the opposite.

Let’s be clear what date we’re talking about: This is the handwritten date that voters are supposed to put on the outside envelope when they submit their mail ballot.

The date in question does not have anything to do with when a ballot comes into a county elections office. Counties track ballots as they come in, and we’re talking only about those mail ballots that were received by the deadline of 8 p.m. on election day.

That means the handwritten date is not used to tell whether a ballot was received on time.

In fact, counties generally accept any date that’s written in. Voters write all sorts of dates, including their birthdates or the date of the election.

We don’t know yet, but it’s at least a few thousand.

Not having a date is one of the top reasons for rejecting mail ballots. In Philadelphia, for example, there are 2,103 undated mail ballots this election, making it the most common defect.

In Allegheny County, “naked ballots” that voters submitted without inner secrecy envelopes were more common, with 658 naked ballots to 218 undated ones.

Whatever the number of undated mail ballots, the majority of them will likely be from Democrats, who vote by mail at much higher rates than Republicans do. Of Philadelphia’s 2,103 undated mail ballots, for example, only 103 were from registered Republicans.

Each of Pennsylvania’s 67 counties will have to make its own decision.

The Department of State issued guidance to counties Tuesday morning that undated ballots be counted — but the results be reported separately, and the ballots be kept segregated, from the rest of the vote. Counties ultimately run elections, and each county’s elections board, guided by their county solicitors, will decide what to do. Philadelphia’s top elections official signaled Monday that those ballots will likely be counted in the Senate race.

In any close race, the trailing candidate wants to add more votes to the count — every additional vote is an opportunity to close the gap — while the leading candidate wants to freeze things as they stand.

That means McCormick wants to find whatever votes possible. And in this case, McCormick has done a bit better with mail ballots than Oz has, so he has additional reason to want to count undated ballots.

McCormick’s campaign lawyers have already urged counties to include undated mail ballots, while lawyers for the Oz campaign shot back with a request that counties reject them.

The McCormick campaign sued Monday in Pennsylvania’s Commonwealth Court to get a statewide order that counties have to count the undated mail ballots. It followed that with an emergency request Tuesday at the same court, and then it took its argument directly to the state Supreme Court, asking it to take over the case and skip the lower-court process.

Separately, the Republican judicial candidate from Lehigh County whose election is at stake in the federal case is preparing to go to the U.S. Supreme Court to block Friday’s ruling, which would help Oz. (The lawyers representing that candidate are part of the team helping Oz as well.)

No. While both campaigns have said they believe they have a path to victory and both have different opinions on those undated ballots, neither are falsely insinuating any issues with the process, a sharp contrast from then-President Donald Trump in 2020.

McCormick and Oz have been mostly quietly waiting out the tally as they await a complete count — and an almost certain recount — that will decide who represents the GOP in one of the country’s most crucial Senate races.

They’ve begun fighting over the issue of undated mail ballots, but have not more generally attacked the process.

McCormick’s campaign is hoping the recent court order on undated ballots boosts him in the Senate race.

Less than 90 minutes after the ruling, which said undated ballots should be counted in a 2021 race, the McCormick campaign sent an email to lawyers for the state and all 67 counties requesting a formal hearing before any county that refused to count undated mail ballots.

“We trust that in light of the Third Circuit’s judgment you will advise your respective boards to count any and all absentee or mail-in ballots that were timely received but were set aside/not counted simply because those ballots lacked a voter-provided date on the outside of the envelope,” a lawyer for the campaign wrote. “To the extent you are not willing to provide this advice, we ask for a formal hearing before your boards on this issue.”

A McCormick campaign adviser lashed out Tuesday at the state party chair for joining Oz in 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 Jim Schultz, who formerly worked in the Trump White House.

Oz’s campaign opposes counting any undated ballots.

In an email Saturday night to the counties, Oz campaign lawyers said the court ruling is only relevant to the November 2021 election for a judge in Lehigh County, “not to any other election.”

“And, in all events, a federal court may not change election rules on the eve of an election — let alone after election day,” Oz’s lawyers said.

On Tuesday, 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’ prospects in future elections.

Trump, who endorsed Oz, has urged him to claim victory, as the former president falsely and prematurely did in 2020.

That hasn’t happened, but Oz’s camp says the math is in his favor. And while one top surrogate, U.S. Rep. Guy Reschenthaler (R., Pa.), suggested they’ll wait for the final initial tally, Reschenthaler also hinted Friday that Oz might declare victory before the recount.

Declaring victory doesn’t mean a candidate won.

Republican National Committee chair Ronna McDaniel on Sunday took Oz’s side in the debate over undated mail ballots.

“The Pennsylvania Supreme Court ruled this year, and the RNC very much supports, that ballots should not be counted without a date,” she said on Fox News Sunday.

The national party had not previously gotten too involved in the Pennsylvania primary. It said Tuesday that it would try to intervene in the McCormick lawsuit to oppose the request to count the undated ballots.

The state GOP said in a statement Monday evening that it opposes counting undated ballots, while carefully noting that its position was not about taking sides in the contest between Oz and McCormick.

“While the Republican Party of Pennsylvania looks forward to supporting the [Pennsylvania] Republican U.S. Senate nominee, whoever it may be, we absolutely object to the counting of undated mail-in ballots,” the party said in a statement. “Pennsylvania law and our courts have been very clear that undated ballots are not to be counted. We have worked hard towards restoring confidence in our elections, and we call upon everyone to respect, uphold and follow the clear law on this issue.”