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Senate Race Tied as Count Continues

Appeals court rejects Allegheny County decision on absentee ballots

By Jason Togyer
The Tube City Almanac
November 19, 2020
Posted in: Politics & Elections

The race between state Sen. Jim Brewster and challenger Nicole Ziccarelli is now tied at 65,978 votes each.

As of Wednesday, Brewster, a McKeesport Democrat, had been leading Ziccarelli, Republican of Lower Burrell, by 28 votes. Brewster is seeking re-election to his third full term representing the 45th Senatorial District.

Westmoreland County on Thursday counted additional provisional and mail-in ballots that had been held for further review. The count added 141 votes for Brewster and 169 for Ziccarelli.

Another court hearing is scheduled on Friday before Westmoreland County Judge Harry Smail Jr. regarding the remaining provisional ballots that have not yet been counted.

According to published reports, approximately 200 of those ballots are from the 45th Senatorial District, which stretches from Forward Twp. in the Mon Valley to New Kensington and Arnold on the Allegheny River.

Meanwhile, a state appeals court has overturned a decision by an Allegheny County judge to accept 2,349 absentee ballots that were signed, but not dated by voters.

State law specifies that voters “shall” sign and date absentee ballots, but the Allegheny County Board of Elections voted 2-1 to accept the ballots.

County officials argued in court that because the ballots were machine-stamped with the date that they were received, they were valid. More than 300 of those ballots are from voters in the 45th District.

On Wednesday, Allegheny County Judge Joseph M. James ruled that “in light of the fact that there is no fraud, a technical omission on an envelope should not render a ballot invalid.”

Ziccarelli appealed to state Commonwealth Court and filed an emergency petition with the state Supreme Court.

On Thursday afternoon, Commonwealth Court ruled in a 2-1 decision that James erred.

Writing for the majority, Judge P. Kevin Brobson said that Allegheny County’s elections board overstepped its authority and that voters who failed to follow directions could not be absolved “of their responsibility to execute their ballots in accordance with law.”

Commonwealth Court returned the case to Allegheny County Common Pleas Court for additional review. Judge Michael H. Wojcik dissented.

The fate of the 2,349 ballots is still likely to be decided by the state Supreme Court, however.

A similar case is pending in the state Supreme Court regarding ballots cast in Philadelphia County and court observers expect that the justices will rule on the Allegheny County ballots at the same time.

Originally published November 19, 2020.

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