Deadlines Set on 45th Senate District Challenge

Pa. Democrats declare victory as McKeesport’s Brewster holds 73-vote lead

By Jason Togyer
The Tube City Almanac
December 17, 2020
Posted in: Politics & Elections

A federal judge in Pittsburgh has given Republican challenger Nicole Ziccarelli until Dec. 23 to demonstrate why her attempt to throw out more than 2,300 mail-in ballots in Allegheny County should proceed.

Those ballots give a 73-vote lead to state Sen. Jim Brewster, Democrat of McKeesport, in his bid for re-election to a third full term — and on Wednesday, Senate Democratic leaders declared victory for their colleague after the Pennsylvania Department of State certified the results.

“While we have been confident for some time that Sen. Jim Brewster would be returning to the Pennsylvania Senate, the official certification comes as a relief and we congratulate him on the win,” said state Sen. Jay Costa of Forest Hills, who also serves as senate minority leader, in a prepared statement.

“We are thrilled to have his unique voice in the Pennsylvania Senate Democratic Caucus and the dedication and service he brings to the Pennsylvania Senate,” Costa said.

On Monday, U.S. District Judge J. Nicholas Ranjan chastised the Ziccarelli campaign for not making its arguments to the court in a more timely fashion, and moved to limit the introduction of any additional new evidence.

“It has been almost three weeks since the court denied Ms. Ziccarelli’s motion for a temporary restraining order, and she did not move for expedited discovery at any point during that time,” Ranjan wrote in his order setting deadlines for both sides to make their arguments.

“There are likely to be no factual disputes here, and very little fact discovery required,” Ranjan wrote. “Indeed, the claims articulated in the complaint present pure questions of law ... on whether those ballots should count, as well as the related decision of the Pennsylvania Supreme Court.”

More than 132,000 votes were cast in the race for 45th Senatorial District, which covers much of the Mon Valley, Monroeville, Plum and part of Westmoreland County.

Due to the COVID-19 pandemic, and a new Pennsylvania law that allows mail-in ballots to be cast by any voter for any reason, an unprecedented number of mail-in and absentee ballots were used in Nov. 8’s election.

In Allegheny County alone, about 46,000 people used mail-in or absentee ballots in the 45th District, versus about 61,000 people who voted in person on Election Day.

Although President Trump and his family members voted by mail, he and other top Republicans cast doubt on the legitimacy of mail-in voting and encouraged Republicans to go to the polls in person.

Despite widespread legal challenges, little or no fraud has been uncovered. However, the constant criticism had the effect of discouraging Republicans nationwide from using mail-in ballots.

As a result, according to complete and official returns from the Allegheny County elections division, absentee and mail-in ballots in the 45th District favored Brewster over Ziccarelli by a nearly three-to-one margin.

County totals (Westmoreland, Allegheny) show Brewster with a 73-vote lead, while results currently posted on the Pennsylvania Department of State website show Brewster with a 69-vote lead.

At issue are 2,349 disputed absentee and mail-in ballots, which were signed, but not dated, by voters. An Allegheny County judge ruled that because the ballots were electronically dated when they were received, the handwritten date was unnecessary. The Pennsylvania Supreme Court upheld the ruling in a split decision.

Westmoreland County’s commissioners rejected about 300 similar mail-in ballots that lacked handwritten dates.

Ziccarelli has argued that because the two counties used different standards to decide whether to accept disputed ballots, her right to equal protection under the 14th Amendment to the U.S. Constitution was violated.

Ziccarelli is suing the Allegheny County Board of Elections, which certified the results, as well as Pennsylvania Secretary of State Kathy Boockvar, who accepted the results.

Federal judges rejected similar claims in other lawsuits that were filed by Trump’s re-election campaign and the U.S. Supreme Court has declined to hear appeals.

Ranjan has given Ziccarelli until next week to file a brief, not to exceed 35 pages, in support of her contention that her civil rights were violated.

The defendants will have until Dec. 30 to respond.

In their own filings, Allegheny County Solicitor Virginia Scott argued that based on existing federal court decisions iin other lawsuits, “Ms. Ziccarelli does not have a viable case,” while attorney Michele Hangley, representing Boockvar, noted that the U.S. 3rd Circuit Court of Appeals, in rejecting an appeal filed by Trump’s re-election campaign, ruled that “reasonable county-by-county variation” by Pennsylvania’s 67 counties “is not discrimination.”

Attorneys for Brewster and the state Democratic Party also have intervened in the suit, calling Ziccarelli’s challenge “fundamentally flawed” and asking Ranjan to dismiss the complaint “with prejudice.”

“It is nothing more than a collateral attack on a Pennsylvania Supreme Court holding in a federal district court,” wrote attorney Clifford B. Levine.

He added that if Ziccarelli suffered unequal treatment, it was “self-inflicted” by her own campaign, which urged Westmoreland County to toss out undated mail-in ballots.

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 17, 2020.

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