The Commonwealth Court of Pennsylvania held a 3 1/2 hour hearing on ballots on Tuesday – in particular those absentee and mail-in ballots from around the state received prior to the 8 PM deadline on Election Night, but without a date on the return envelope.

President Judge Renee Cohn Jubelirer heard testimony from lawyers from both the Dave McCormick and Mehmet Oz campaigns as well as solicitors from some counties involved in the case.

Ron Hicks, an attorney for the McCormick campaign, said “These individuals cast their ballot, and the only thing they failed to do was put on their own voter date. The date that matters is the date that it was received, not the date that is provided by the voter on the envelope.”

Another McCormick lawyer, Charles Cooper, said there are really two questions before the Court. “Is the mailing envelope a record or paper relating to any act requisite to voting? Is the dating requirement material in determining whether someone is qualified to vote under state law?”

Michael Fischer, chief deputy attorney general of Pennsylvania, says an error should not result in the disenfranchisement of the voter. “The more you look at what function the date serves, you see, it just doesn’t serve any purpose. There’s nothing in the Election Code that says a ballot without a handwritten date on it shall not, will not be counted.”

John Gore, representing the Oz campaign, stated that the Court should hold off on a decision until the recount is concluded, adding that the Department of State (DOS) could use the time to determine an accurate number and if it could determine the outcome of the race.

“Our point is that there are rules that govern how voting is done,” said Gore.

Thomas King, representing the Republican National Committee and the Pennsylvania Republican Party, said “The law in Pennsylvania is quite clear — that these undated ballots should not be counted.” When queried by Jubelirer about the relevance of the written date on the envelope, he added, “I think that the wrong date issue could well be before this court. It confirms when someone says that they voted.”

As we know, voters have put all kinds of different dates on these envelopes, ranging from today’s date to the date of the election and even their own birthdate.

Jubelirer did not make a ruling from the bench and concluded the day’s session, saying “I’m not going to render a decision right now. I’m going to review the materials that you’ve provided, think about the excellent arguments that you’ve made. We will issue an opinion, an order as quickly as possible.”

The McCormick campaign filed suit against the DOS and 60 counties, stating that those “county boards of elections refuse to count absentee and mail-in ballots simply because the voters failed to handwrite a date (which the Pennsylvania Attorney General acknowledges can be any date—even a wrong date) on the exterior mailing envelope (which is separated by yet another envelope from the ballot itself). These ballots were indisputably submitted on time— they were date-stamped upon receipt—and no fraud or irregularity has been alleged. The Boards’ only basis for disenfranchising these voters is a technical error that is immaterial under both state and federal law.”

The counties that were excluded from the lawsuit include Armstrong, Erie, Greene, Philadelphia, Schuylkill, Susquehanna and York.

Two days later, an application for relief asked for these counties to be dismissed from the action – Adams, Bedford, Cameron, Clinton, Crawford, Elk, Potter, Sullivan, Union, Warren, Washington and Wyoming Counties.

The Oz campaign has the support of the Pennsylvania Republican Party and the Republican National Committee in its position to not count the ballots that are not properly marked with a date.