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The Supreme Court Could Decide Who Wins Pennsylvania Senate Republican Primary

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A new order by Supreme Court Justice Samuel Alito could set up the court to ultimately determine the winner in Pennsylvania’s GOP Senate race, should one of the candidates pursue a legal challenge to stop counting of undated ballots.

The order comes in the case of Ritter v. Migliori, where the Third Circuit Court of Appeals ruled that fewer than 300 undated mail ballots should be counted in a 2021 county judicial race. Alito temporarily blocked that decision to count undated mail ballots “pending further order” from Alito or the court.

This could have implications for the still undecided primary race between celebrity TV doctor Mehmet Oz and private equity executive David McCormick because it has similar issues. Oz leads McCormick by fewer than 1,000 votes. McCormick hopes to overcome that margin by counting uncounted mail ballots. His campaign sued in federal court to count undated mail ballots after the Third Circuit Court ruled in favor of counting those ballots in the county judicial election.

Pennsylvania requires voters to include a date and signature on their mailed ballot. The Third Circuit ruled that the exclusion of a date on a mailed ballot that was received on time was not material to a voter’s qualifications to vote and presented no sign of fraud. For that reason, not counting undated mail ballots violated the civil rights of the voters who mailed them.

The state called for a recount of the Oz-McCormick race. The Pennsylvania Department of State issued an advisory opinion telling counties to separate and count these ballots as the state recount goes forward. The department also supports legal challenges in both state and federal courts seeking the inclusion of undated mail ballots. There are approximately 860 undated mail ballots in the Republican primary race, according to a state count.

Alito previously stepped into Pennsylvania elections in 2020 when he ordered that all mail ballots received after election day be segregated after state courts ruled that ballots received up to three days after the election could be counted. Those ballots never came into play, as Joe Biden’s margin over Donald Trump far exceeded the small number of late arriving ballots.

But it might matter in the incredibly close Oz-McCormick race. Currently, challenges brought by McCormick to count the ballots are wending through state and federal courts.

That has not stopped Oz from mimicking former president Trump by simply declaring victory. Trump had publicly urged Oz to declare that he won, just as Trump falsely did after his 2020 defeat. Soon after, Oz put out a campaign video declaring himself the winner of the party nomination.

The winner of the primary election will face Democratic Lt. Gov. John Fetterman in the general election to fill the seat of retiring Republican Sen. Pat Toomey. The race is viewed as the top pickup opportunity for Democrats.

This article originally appeared on HuffPost and has been updated.