Republican candidate for Senate Dave McCormick has filed a lawsuit in Commonwealth Court in hopes to have Pennsylvania counties count mail ballots that were received on time but failed to have a handwritten date on their envelope.

McCormick, a former hedge fund CEO, trails Mehmet Oz by 987 votes or 0.1 percent which would automatically trigger Pennsylvania’s law regarding statewide recounts.

“These are valid ballots: they were indisputably received on time, having been date-stamped upon receipt, and the absence of a handwritten date on the exterior envelope is immaterial under both state and federal law,” the lawsuit states.

“Pennsylvania’s dating requirement, however, is unenforceable under both state and federal law. A plurality of the Pennsylvania Supreme Court has already held that the Commonwealth’s Election Code—which “must be liberally construed so as not to deprive . . . the voters of their right to elect a candidate of their choice”—“does not require boards of elections to disqualify mail-in or absentee ballots submitted by qualified electors who signed the declaration on their ballot’s outer envelope but did not handwrite . . . [the] date, where no fraud or irregularity has been alleged.”

The Pennsylvania Department of State issued a statement on Tuesday morning, stating “Out of an abundance of caution the Department advises, that those ballots should be segregated and remain segregated from all other voted ballots during the process of canvassing and tabulation. In other words, those ballots with undated ballot return envelopes or with incorrectly dated ballot return envelopes that have been set aside, should continue to be maintained, preserved, and appropriately logged pending litigation, which we anticipate will be undertaken on an expedited basis. A determination on whether the segregated tabulations will be used in certifying elections has not yet been made, given the ongoing litigation.”

“Unfortunately, the McCormick legal team is following the Democrats’ playbook, a tactic that could have long-term harmful consequences for elections in the Commonwealth of Pennsylvania,” Oz’s campaign manager, Casey Contres, wrote Saturday. “It is a clear contrast between Dr. Mehmet Oz’s efforts to secure America’s democratic process.”

“The (Republican National Committee) is intervening in this lawsuit alongside the Pennsylvania GOP because election laws are meant to be followed, and changing the rules when ballots are already being counted harms the integrity of our elections,” RNC chief counsel Matt Raymer said in a statement. “Either of Pennsylvania’s leading Republican Senate candidates would represent the Keystone State better than a Democrat, but Pennsylvania law is clear that undated absentee ballots may not be counted.”

Last Friday, a three-judge panel for the 3rd Circuit Court of Appeals issued a statement saying Lehigh County election officials should count 257 mail ballots that were submitted without a date written on their mailing envelopes. as long as they were otherwise received on time.

The circuit judges found that the date isn’t used in determining the legitimacy of vote. After all, they noted, the county had accepted ballots with the wrong dates on them, as long as they were dated at all in the November 2021 contest for common pleas judge.