The Pennsylvania House and Senate are due to swear in 228 veteran and newly elected lawmakers on Tuesday, kicking off a fresh legislative session in Harrisburg two months after an historic general election.
But state Sen. Jim Brewster, a three-term incumbent Democrat who won Allegheny County’s 45th Senate District by a mere 69 votes, won’t be among them – even though state election officials have already certified him as the victor in his race.
Republicans who control the 50-member chamber announced Monday that they would not seat Brewster, whose razor-thin victory is being challenged in federal court and through Senate procedures by Nicole Ziccarelli, the Republican opponent in his 2020 race.
Ziccarelli’s federal filing asks a judge to toss hundreds of mail-in ballots from Allegheny County, which she contends were cast illegally because voters signed, but did not date, their outer mailing envelopes.
Brewster’s district spans parts of Allegheny and Westmoreland counties. While election officials in Westmoreland decided to toss signed and undated ballots, their counterparts in Allegheny County tabulated them – a discrepancy that Ziccarelli says violates constitutional due process and equal protection rights.
The state Supreme Court rejected that argument when Ziccarelli raised it in state appellate courts last year, ruling that the contested ballots should count. Ziccarrelli and her attorneys hope a federal judge may grant her request and likely hand her a victory.
But Ziccarelli also is relying on a petition she filed with the Senate on Jan. 1, contesting Brewster’s victory and asking Senators to recognize her as the victor in the 45th district instead.
Senate President Pro Tempore Jake Corman, R-Centre, said Ziccarelli’s petition and Brewster’s response clock in at more than 500 pages.
He said senators need time to review their arguments and decide whether to invoke a power in the state Constitution, which lets them judge the election and qualification of their members, to block Brewster from serving.
“I don’t want to get into hypotheticals,” Corman told reporters on a Monday evening conference call, when asked whether senators would vote to effectively choose the winner of the 45th district race. “The members will decide how to proceed – all 49 members.”
He added, “We do have an active court case. But ultimately, as empowered by the Constitution, the 49 members of the Senate will make an ultimate decision” on which candidate to seat.
Senate Democrats decried Corman’s decision Monday as a “robbery.”
“This is the Republican Party trying to steal an election, and not allow it to go forward, [because] they disagree with a court’s decision,” Senate Minority Leader Jay Costa, D-Allegheny, said. “They want to take it upon themselves to render a different decision.”
He added, “we cannot allow a process in the state Senate to usurp the court’s authority.”
Brewster’s attorney, Cliff Levine, has asked federal courts to dismiss Ziccarelli’s challenge.
He also contends the Senate should toss her petition contesting the election results, saying such challenges must be filed 20 days after an election.
Corman said that deadline may apply when candidates are petitioning Commonwealth Court. But that’s not the case, he said, when they’re seeking relief directly from the Senate itself.
“Ultimately, the Senate determines what is proper and what is not proper,” Corman said.
That means that if a simple majority of 26 Senators deem Ziccarelli’s petition appropriate, Corman said, “it would be appropriate.”