Federal Judge Denies Injunction in Vote Count

Ziccarelli alleges unequal treatment by Allegheny, Westmoreland officials

By Jason Togyer
The Tube City Almanac
December 01, 2020
Posted in: Politics & Elections

A federal judge in Pittsburgh has denied a request for a preliminary injunction and temporary restraining order that would block state officials from accepting some of Allegheny County’s election results.

At issue are 2,349 disputed absentee and mail-in ballots that will likely decide the 45th Senatorial District race between State Sen. Jim Brewster and his challenger, Nicole Ziccarelli.

The ballots in question were signed, but not dated, by voters.

In her request last week, Ziccarelli, Republican of Lower Burrell, asked U.S. District Judge J. Nicholas Ranjan to prohibit state officials from accepting Allegheny County’s certified results, which include those ballots.

Brewster, a McKeesport Democrat, holds a 73-vote lead out of more than 132,000 votes cast.

Brewster’s term expired Monday. State senators and legislators are scheduled to be sworn-in for their new terms Jan. 5.

Following a telephone conference with attorneys for both sides, Ranjan last week turned down the request for a temporary restraining order and injunction.

On Tuesday, Ziccarelli filed a formal complaint in U.S. District Court in Pittsburgh alleging that Allegheny County’s decision to count those undated mail-in ballots violated her right to due process and the equal protection clause of the U.S. Bill of Rights.

Her complaint names Allegheny County Executive Rich Fitzgerald and county councilmembers Samuel DeMarco and Bethany Hallam, who serve as the county’s board of elections, along with Pennsylvania Secretary of State Kathy Boockvar. Attorneys for Brewster and the state Democratic Party are intervening.

In a 4-3 decision Nov. 24, the Pennsylvania Supreme Court upheld an Allegheny County Common Pleas Court decision that ruled the ballots in question were lawfully cast and should be counted.

No fraud has been alleged, the courts said.

An unprecedented number of voters cast absentee or mail-in ballots in 2020 due to the COVID-19 pandemic.

A state law passed in October 2019 with widespread support from both Republicans and Democrats allows voters to use absentee or mail-in ballots for any reason.

But mail-in balloting became controversial after President Trump and supporters of his re-election campaign made unsubstantiated claims that mail-in voting is subject to widespread fraud, even though the president himself and members of his family voted by mail.

The 45th District includes parts of both Allegheny and Westmoreland counties.

Allegheny County’s board of elections voted 2-1 to accept 2,349 mail-in ballots that were signed, but not dated. DeMarco dissented.

Allegheny County officials argued that because the ballots were stamped with the date they were received, and were scanned into the state’s voter registration system, the handwritten date was unnecessary and there was no question the votes were valid.

But Westmoreland County officials rejected 343 mail-in ballots that were signed, but not dated.

If the Allegheny County ballots are not counted, Ziccarelli’s complaint alleges, she would have a 20-vote lead and would defeat Brewster in his bid for re-election.

Brewster’s campaign argued that Westmoreland officials should have counted the 343 mail-in ballots as well.

Ziccarelli’s complaint alleges that different standards used by the two counties constitute a violation of the 14th Amendment’s equal protection clause. It cites the 2000 U.S. Supreme Court ruling in Bush v. Gore that stopped a recount in Florida and awarded that state’s electoral college votes to George W. Bush.

The complaint further alleges that the Allegheny County violated Ziccarelli’s right of due process by diluting ballots she and other voters cast.

Federal courts have been reluctant to overrule state Supreme Court decisions that are based on state constitutional questions.

On Nov. 21, a federal judge in Philadelphia rejected a similar lawsuit filed by attorneys for President Trump asking for almost 7 million absentee and mail-in ballots from across Pennsylvania to be discarded.

The president’s attorneys, including former New York City mayor Rudy Giuliani, had argued, in part, that Pennsylvania officials violated Trump’s 14th Amendment rights because each of the state’s 67 counties used different standards to decide whether to accept or reject ballots.

U.S. District Judge Matthew Brann called the legal arguments “strained.” Last week, the U.S. 3rd Circuit Court of Appeals upheld Brann’s decision.

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 December 01, 2020.

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