Brewster, Ziccarelli Race Still Too Close to Call

Unofficial figures show McKeesport Democrat with 96-vote lead

By Jason Togyer
The Tube City Almanac
November 24, 2020
Posted in: Politics & Elections

The Pennsylvania Supreme Court has upheld Allegheny County’s decision to count absentee and mail-in ballots that were signed, but not dated.

The 4-3 decision Monday affects ballots in both Allegheny and Philadelphia counties — and is crucial in the 45th Senatorial District race between state Sen. Jim Brewster, McKeesport Democrat, and challenger Nicole Ziccarelli, Lower Burrell Republican.

Brewster and Ziccarelli were tied last week as Westmoreland County officials continued to review disputed ballots. On Monday, after additional ballots were reviewed, accepted and counted in Westmoreland, Ziccarelli moved into a 4-vote lead out of 131,968 votes cast, according to reports posted on the county’s website.

If Allegheny County now counts and certifies its remaining 2,349 ballots, Brewster would move into a 96-vote lead, according to public figures available on the election board’s website.

Trib: 600 ballots outstanding in Westmoreland

The 45th District stretches from Forward Twp. in the Mon Valley to Lower Burrell in the Allegheny Valley and includes parts of both Allegheny and Westmoreland counties.

The Tribune-Review reported Monday that approximately 600 ballots remain to be reviewed in Westmoreland County, including 70 ballots from the 45th District that arrived late at the Westmoreland courthouse.

Of those ballots, 40 were for Ziccarelli and 30 were for Brewster, the newspaper said. If counted, accepted and certified, Brewster would maintain his narrow lead.

‘Technical violations’ do not warrant discarding thousands of votes

Writing for the majority in Monday’s decision, Supreme Court Justice Christine Donohue wrote that “failures to include a handwritten name, address or date in the voter declaration on the back of the outer envelope, while constituting technical violations of the Election Code, do not warrant the wholesale disenfranchisement of thousands of Pennsylvania voters.”

Chief Justice Thomas G. Saylor, Justice Kevin M. Dougherty and Justice Sallie Updyke Mundy dissented.

The Allegheny County Board of Elections had voted to accept and count ballots that were missing a handwritten date.

No fraud was alleged and the board of elections concluded that because the ballots included a machine-stamped date, and had been scanned into the state’s voter registry upon receipt, the balllots were legally cast and should be counted.

Upholds Allegheny County decision

More than 300 of the ballots in question are from voters in the 45th District, Allegheny County said.

The Supreme Court decision upholds a ruling last week by Allegheny County Judge Joseph James, who wrote that “a technical omission on an envelope should not render a ballot invalid” and allowed Allegheny County to accept the count the ballots.

Attorneys for Ziccarelli appealed James’s decision to Commonwealth Court and filed an emergency petition with the state Supreme Court.

In addition to the 2,349 Allegheny County ballots, the Supreme Court’s ruling also gives Philadelphia County the go-ahead to count 8,329 mail-in ballots that were challenged by President Trump’s campaign on similar grounds.

Donohue: Handwritten date is ‘superfluous’

Donohue’s opinion compared the failure of voters to date their ballot correctly to a voter using the wrong color ink to mark his or her ballot.

Unlike requirements that protect the secrecy of a ballot and prevent fraud, the requirement that a voter write the date on their ballot is not a mandatory obligation but a direction, Donohue wrote.

Boards of election do not use signatures or any handwritten information to prevent double-voting, she wrote.

Duplicate voting is prevented by the use of the state’s computerized registry, which assigns a unique bar code to each voter’s ballot. The board uses the date when the bar code was scanned to determine when the ballot was received, not any handwritten information, Donohue wrote.

‘No danger’ ballots were late or fraudulent

“Every one of the 8,329 ballots challenged in Philadelphia County, as well as all of the 2,349 ballots at issue in Allegheny County, were received by the boards of elections by 8 p.m. on Election Day, so there is no danger that any of these ballots was untimely or fraudulently back-dated,” Donohue wrote.

“Upon receipt of the ballot, the county board stamps the date of receipt on the ballot-return and records the date the ballot is received” in the state’s registry, she wrote.

The date stamp and computer scan make “any handwritten date unnecessary, and indeed, superfluous,” Donohue wrote. “The lack of a handwritten date cannot result in vote disqualification.”

Westmoreland: Provisional ballots challenged

The ballots reviewed in Westmoreland County on Monday included ones that arrived without the required secrecy envelopes or which had extra unnecessary markings on the envelopes, as well as 250 provisional ballots, according to the Tribune-Review.

The provisional ballots were challenged because the voters who cast them also signed the register at their polling place as if they had used a voting machine.

The Westmoreland County Commissioners voted to accept those ballots, arguing that poll workers had been improperly trained and had wrongly told voters casting provisional ballots to sign the register.

Westmoreland County Judge Harry Smail ruled that the commissioners “abused their discretion” and rejected 204 of the provisional ballots they had voted to accept, according to the newspaper.

Smail ruled the remaining 46 provisional ballots could be accepted after the voters who cast them testified under oath they had not cast duplicate ballots on voting machines.

Both Allegheny and Westmoreland counties on Monday certified the results of the 2020 election, except for the challenged ballots and the 45th Senatorial District race.

Jason Togyer is editor of Tube City Almanac and volunteer executive director of Tube City Community Media Inc. He may be reached at jtogyer@gmail.com.

Originally published November 24, 2020.

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