Allegheny County Court judge tosses ballot challenge from GOP Senate candidate, drawing immediate appeal

(Capital-Star photo by Stephen Caruso)

(*This story was updated at 3:20 p.m. on 11/18/20 with new information about Nicole Ziccarrelli’s appeal to the state Supreme Court.) 

An Allegheny County judge on Wednesday dismissed a request from a Republican state Senate candidate to toss more than 2,300 mail-in ballots cast in the Nov. 3 General Election, which she argued shouldn’t be counted because voters had failed to write the date on the outside envelopes.

*But it took barely three hours for attorneys representing the candidate, Nicole Ziccarrelli, to appeal the decision from Court of Common Pleas judge James Joseph to the state Supreme Court.

The legal battle could further delay a final vote count in the race for the 45th Senate District, where Ziccarrelli, an attorney, trails incumbent Democratic Sen. Jim Brewster by just 30 votes, unofficial state tallies show.

The 45th District, which covers parts of Allegheny and Westmoreland counties, is the last legislative race in Pennsylvania to remain uncalled as of Wednesday. 

The close margins likely will trigger a manual vote recount, which is called for under state law when a candidate’s margin of victory is less than half a percentage point. 

The ruling Joseph issued Wednesday afternoon upheld a vote the Allegheny County Election Board took last week, when it moved to count ballots that had been signed, but not dated, by voters, and instead timestamped by the election office upon their receipt.  

“It is well settled Pennsylvania law that election laws should be construed liberally in favor of voters, and that ‘technicalities should not be used to make the right of the voter insecure,’” James wrote in his decision, quoting a September opinion from Pennsylvania Supreme Court. 

Ziccarrelli’s lawyers then petitioned the state Supreme Court to take immediate jurisdiction over the case, which they filed last week.

Their original complaint asked the county court to bar election officials from counting 2,349 disputed ballots, arguing they were invalid under state election law because voters had not dated the outside mailing envelopes. 

The ballots didn’t stand to affect the outcome of the presidential race in Pennsylvania, where unofficial results show President-elect Joe Biden leading President Donald Trump by 81,666 votes as of Wednesday.

But a ruling granting Ziccarrelli’s request would have likely tipped the state Senate race in her favor.

Brewster got most of his votes in Allegheny County, according to unofficial returns on the county website. The incumbent senator led Ziccarelli by 6,000 votes there, but trailed her by nearly the same margin among voters in Westmoreland County

County data also show that Brewster was more likely than his opponent to get votes from mail-in ballots, which split more than 2-1 in his favor in Allegheny County.

State election law requires mail-in voters to sign and date a ballot’s outside mailing envelope before delivering it to the county elections board.

Election officials cannot count ballots that lack signatures. And while the Allegheny County Board of Elections initially segregated signed ballots that lacked dates, it voted 2-1 last week to accept them.

Allegheny County Solicitor Andrew Szefi advised the board that tossing the ballots could disenfranchise voters, and that technicalities in the state election code “should always be construed so as to favor enfranchisement over disenfranchisement,” according to the Tribune-Review.

Ziccarelli’s filing, prepared by attorney Matt Haverstick, argued that “an elector’s failure to date the declaration – which is a requirement imposed by statute – may [not] be overlooked or treated as an insignificant or ancillary defect.”

Counties across the state are finalizing their vote counts and certifying results nearly two weeks after the General Election. State law gives them until next week to send certified results to the Department of State.