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Fewer than 30 votes separate McKeesport’s Brewster, Lower Burrell’s Ziccarelli
EDITED to clarify that the current totals do not reflect the disputed absentee ballots.
The future of Pennsylvania’s 45th Senatorial District is now in the hands of the state Supreme Court.
Republican Nicole Ziccarelli of Lower Burrell on Wednesday afternoon filed an emergency petition asking the state’s highest court to use its powers of “extraordinary relief” to rule that 2,349 of Allegheny County’s absentee ballots are invalid and cannot be counted.
State Sen. Jim Brewster, McKeesport Democrat, currently holds a 28-vote lead over his challenger, Ziccarelli. Brewster is seeking re-election to his third four-year term.
The Allegheny County Board of Elections voted 2-1 to accept the ballots, which were signed by voters but not dated. The ballots have not yet been counted.
On Wednesday morning, Allegheny County Judge Joseph M. James upheld the board’s decision.
“In light of the fact that there is no fraud, a technical omission on an envelope should not render a ballot invalid,” he wrote in his decision. “These ballots must be counted.”
Ziccarelli’s attorneys also are appealing James’s decision in Pennsylvania Commonwealth Court.
“It is well-settled Pennsylvania law that election laws should be construed liberally in favor of voters,” James wrote in his decision, “and that technicalities should not be used to make the right of the voter insecure.”
Under state law, Allegheny County has until Nov. 23 to certify votes in the 2020 election.
More than 724,000 votes were cast by Allegheny County voters in the general election. Due to the COVID-19 pandemic, roughly half of those ballots — 48 percent — were cast by mail or using absentee ballots.
Many Republicans, including President Trump, have raised allegations of fraud over the widespread use of absentee and mail-in ballots this year, though almost no fraudulent ballots have been found.
As the results currently stand, Brewster leads Ziccarelli 65,837 to 65,809 votes—a difference of fewer than 30 votes.
Brewster leads Ziccarelli 57,580 to 51,452 votes in Allegheny County, according to complete but unofficial returns, while Ziccarelli leads Brewster 14,357 to 8,257 in Westmoreland.
At issue are Allegheny County absentee ballots that were not dated by voters before they were mailed.
In court filings, Ziccarelli’s attorneys, from the Philadelphia law firm Kleinbard LLC, argued that state Election Code requires voters to both sign and date their ballot and seal it into a security envelope.
The signature and date allow county officials to verify that the person submitting the ballot was qualified to vote on the day the ballot was submitted, Ziccarelli’s filing argued—and ensures that they did not attempt to vote twice.
Without both the signature and the date, Ziccarelli said, the ballot cannot legally be verified and should not be counted.
But Allegheny County officials argued in Common Pleas Court that all of the ballots were imprinted with the date and time when they were received, which allowed the board of elections to confirm that the ballot was legally cast.
In addition, the county said, each ballot is marked with a unique nine-digit barcode that links that ballot to the voter’s record in the Statewide Uniform Registry of Electors, or SURE, system.
The Allegheny County Board of Elections “has processes in place to ensure no voter is able to vote twice in the election,” the county said in its filings.
Moreover, the county argued, Ziccarelli lacked standing to challenge all 2,349 of the affected ballots because that would disenfranchise voters who did not live in the 45th District.
Only 313 of the ballots are from voters in the 45th District, the county said.
In his decision, James wrote that state law says voters “shall” date their ballots — not that they must.
The word “shall” means the date provision is not mandatory, James said.
“The ballots at issue here are sufficient even without a voter supplied date,” he said. “They were processed in the (SURE system) ... and timestamped when they were timely delivered to the (elections) board on or before Nov. 3, 2020.
“They were signed and have otherwise been properly completed by a qualified elector,” James wrote. “The lack of a written date on an otherwise qualified ballot is a minor technical defect that does not render it deficient.”
Jason Togyer is editor of Tube City Almanac and volunteer executive director of Tube City Community Media Inc. He may be reached at email@example.com.
Originally published November 18, 2020.