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Petition claims election was certified illegally; federal case still pending
Republican Nicole Ziccarelli has asked leaders of the Pennsylvania State Senate not to seat Democrat Jim Brewster when the chamber convenes on Tuesday.
In a petition filed Friday night, Ziccarelli, of Lower Burrell, alleges that the decision of Allegheny County to count mail-in ballots that were signed, but not dated, constitutes acceptance of “illegal votes” and was “a blatantly political maneuver.”
Results accepted and certified by the Pennsylvania Department of State give Brewster, of McKeesport, a 69-vote lead in his re-election to a third full term to represent the 45th Senatorial District.
Ziccarelli has filed a lawsuit in U.S. District Court in Pittsburgh alleging that her rights to due process and equal protection under the U.S. Constitution were violated because Allegheny County accepted signed but undated mail-in ballots, while neighboring Westmoreland County did not count similar votes.
“To remedy this issue, we humbly ask the State Senate to consider the facts regarding these actions, refuse to accept the Secretary of State’s invalid certification, and finally decide the race using only lawfully cast ballots,” Ziccarelli said in a statement on Friday night.
“If this relief is granted, it would not only validate our campaign’s victory, (it) would help to restore faith in our electoral process, ensure all voters in the 45th State Senatorial District are treated equally and fairly, and validate the rule of law,” she said.
Clifford Levine, an attorney representing the Brewster campaign, said both an Allegheny County judge and the state Supreme Court have rejected Ziccarelli’s arguments, and that the state senate should, too.
“This matter is over,” Levine told the Almanac on Saturday. “The legal issues have been resolved.”
A decision is still pending in Ziccarelli’s federal lawsuit, which names as defendants the Allegheny County Board of Elections, including County Executive Rich Fitzgerald, as well as Pennsylvania Secretary of State Kathy Boockvar.
Both sides have filed arguments before U.S. District Judge J. Nicholas Ranjan.
Ziccarelli’s lawsuit asks Ranjan to set aside Allegheny County’s certification of 311 mail-in ballots and block Brewster from “performing any duties” associated with being a state senator.
In November, Ranjan rejected Ziccarelli’s request for an emergency injunction and temporary restraining order to stop Pennsylvania from certifying its election results.
According to state law, mail-in ballots are to be signed and dated by voters before they are sent. More than 2,300 ballots received in Allegheny County were signed, but not dated, including 311 ballots in the 45th District, which includes parts of both Allegheny and Westmoreland counties.
The Allegheny County Board of Elections voted 2-1 to accept those ballots after elections officials argued that because the ballots were scanned and machine-stamped when they were received, there was no question that they were received on-time.
Both an Allegheny County judge and the Pennsylvania Supreme Court upheld the election board’s decision.
Judges noted that many voters were using absentee and mail-in ballots for the first time due to the COVID-19 pandemic, and that they should not be disenfranchised for a technical mistake.
The local dispute mirrors arguments made on the national level by President Trump and other top Republicans, who encouraged Republican voters to vote in person and alleged that absentee ballots would lead to fraud.
Meanwhile, Democratic Party officials encouraged voters to use absentee and mail-in ballots to avoid contracting or spreading COVID-19.
As a result, absentee and mail-in ballots overwhelmingly favored Democratic candidates. Although Trump and his allies have alleged “unprecedented” fraud, practically no fraud has been discovered in any of Pennsylvania’s 67 counties, or any of the other 49 states.
Unlike Allegheny County, Westmoreland County’s board of elections did not count about 344 ballots that were signed, but not dated.
At a hearing Nov. 25 on Ziccarelli’s request for an injunction, attorneys for the defendants argued that if Ziccarelli’s rights were violated by the different standards in the two counties, the best remedy would be to order Westmoreland to count the mail-in ballots it rejected.
Ranjan seemed to agree.
“An injunction that levels down — that does not count (Allegheny County’s) votes — I find to be not narrowly tailored to be in the public interest, because it would disenfranchise potentially thousands of voters and cause harm to those individuals,” Ranjan said, according to a court transcript.
In her petition, Ziccarelli asks the state senate to acknowledge what she calls the “irregular conduct” of Allegheny County and Boockvar, which she alleges violate the state Election Code as well as the U.S. Constitution.
“These violations, in turn, make the election results illegal,” she said Friday.
The state Senate is controlled by a Republican majority. Four top Pennsylvania Republican elected officials, including state Sen. Jake Corman, president pro tempore, and state Sen. Kim Ward, the majority leader, on Monday filed a “friend of the court” brief on behalf of Ziccarelli, urging Ranjan to order Pennsylvania to exclude the contested mail-in ballots.
Levine said on Saturday that Brewster was re-elected by voters of the 45th District, and his re-election has been upheld by the courts.
“Candidate Ziccarelli sought to disenfranchise 2,349 voters in Allegheny County, and the Pennsylvania Supreme Court ruled against her,” Levine told the Almanac. “Then, Candidate Ziccarelli went to federal court in an effort to block the certification of the election and the federal judge denied her request.
“Now it is time to move forward and ensure that the citizens of the 45th District can be represented in the State Senate, by the winner of this election, Jim Brewster,” Levine said.
Originally published January 02, 2021.