State appeals court orders challenged ballots in Brewster-Ziccarelli Senate race to not be counted; race tied
The Pennsylvania Commonwealth Court on Thursday evening ordered that 2,349 undated mail-in ballots in Allegheny County not be counted as part of an appeal by the Republican challenger for the 45th Senatorial District seat.
“It is a myth that all ballots must be counted in the absence of proof of fraud,” wrote Judge P. Kevin Brobson in his 13-page opinion. “Ballots, under the law may be set aside for ‘fraud or error.’”
In a 2-1 decision, Brobson, joined by Judge Patricia A. McCullough, said it is not the role of the county election board to accept votes that have not been properly filled out.
It is expected, however, the issue will be ultimately decided by the state Supreme Court, which has already taken a similar case out of Philadelphia County.
Race tied as of Thursday night
Nicole Ziccarelli, who was trailing incumbent state Sen. Jim Brewster, D-McKeesport, by 28 votes earlier Thursday night, pulled into a tie as more mail-in and provisional ballots votes were counted in Westmoreland County, according to unofficial returns.
Ziccarelli also has asked the court to halt the counting of about 300 provisional ballots that were subject to another challenge she lost Wednesday in Allegheny County Common Pleas Court. Her campaign has other legal challenges pending there.
The Senate district includes portions of Allegheny and Westmoreland counties, including the Alle-Kiski and Mon valleys.
Ziccarelli’s attorney, Matthew Haverstick, argued first to Allegheny County Common Pleas Judge Joseph James on Tuesday that the mail-in ballots, which the county election board voted 2-1 to count, were missing the voter-provided date. The provisional ballots were missing one of two required signatures.
James ruled in favor of the county, writing in his two opinions Wednesday the law is to be construed in favor of ensuring the citizens’ right to vote, and the errors were minor and technical in nature.
But in his brief submitted Thursday on the mail-in ballots, Haverstick wrote, “The Election Code sets forth a mandatory requirement that mail-in ballots be both signed and dated.”
The date on the ballot, Ziccarelli’s attorney argued, is essential to ensuring the voter is a qualified elector on the date the ballot is filled out.
“Above all else, the Supreme Court has already held that mail-in ballots with undated declarations are not ‘sufficient’ and, thus, must be set aside,” Haverstick wrote.
Citing the court’s previous ruling from September, he said, “sufficiency of a mail-in ballot is predicated on three factors, each of which must be satisfied.”
Those are: a completed voter declaration, a date and signature.
An undated mail-in ballot is “per se” invalid, Haverstick said, and must be set aside.
The majority of the Commonwealth Court agreed, quoting September’s state Supreme Court decision.
Brobson wrote that he presumes county elections boards were aware of it.
“The elections board chose, nonetheless, to ignore its obligations under the election code to determine the sufficiency of the mail-in and absentee ballots at issue … ,” he wrote. “Where the elections board tacitly derived its authority to ignore its statutory obligation to determine the sufficiency of ballots and to violate the will of the general assembly … is a mystery.”
Brobson went on to say it is the responsibility of the Legislature to set the time, place and manner of elections.
“It is not the judiciary’s role, let alone the role of the elections board, to relax or ignore requirements that the general assembly, with the governor’s approval, chose to include in the election code,” Brobson wrote. “We do not enfranchise voters by absolving them of their responsibility to execute their ballots in accordance with law.
“The danger to our democracy is not that electors who failed to follow the law in casting their ballots will have their ballots set aside due to their own error; rather, the real danger is leaving it to each county board of election to decide what laws much be followed (mandatory) and what laws are optional (directory), providing a patchwork of unwritten and arbitrary rules that will have some defective ballots counted and other discarded, depending on the county in which a voter resides,”Brobson wrote.
But Commonwealth Court Judge Michael H. Wojcik wrote in a dissenting opinion, that he would “not blithely disenfranchise those 2,349 voters.”
He posited that the majority was misinterpreting the earlier state Supreme Court decision, which he wrote was about a voter’s ability to cure a “minor” defect on a mail-in ballot.
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https://triblive.com/local/valley-news-dispatch/nicole-ziccarelli-asks-court-to-throw-out-undated-mail-in-ballots-in-senate-race/