PITTSBURGH – The Republican challenger in the 45th Senatorial District that includes parts of Allegheny and Westmoreland counties is seeking both county and state election authorities to reconsider their certification of vote results in Pennsylvania which permitted undated mail-in ballots to be counted.
Nicole Ziccarelli of Westmoreland County filed suit in the U.S. District Court for the Western District of Pennsylvania on Nov. 25 versus the Allegheny County Board of Elections and its members Rich Fitzgerald, Sam DeMarco and Bethany Hallam, all of Pittsburgh, plus Secretary of the Commonwealth Kathy Boockvar, of Harrisburg.
The Supreme Court of Pennsylvania ruled Nov. 21 in its majority decision that the 2,349 undated mail-in ballots that Ziccarelli challenged should be counted in the final vote totals, in her race against Democratic incumbent Jim Brewster.
The Court found that though the missing dates are a technical violation of the Election Code, those errors do not warrant disenfranchising thousands of voters.
State Supreme Court Justices Christine Donohue, Max Baer, Debra Todd and David Wecht comprised the majority – as both Wecht and Justice Kevin Dougherty each authored a concurring and dissenting opinion, the latter of which was joined by Chief Justice Thomas Saylor and Justice Sally Updyke Mundy.
Even though a majority of the state Supreme Court decided that the undated mail-in ballots were not compliant with state Election Code, Ziccarelli and her counsel object to the fact they were permitted to be counted in the final vote result totals.
“Although acknowledging that the Election Code requires an elector to sign and date a ballot, the three justices – i.e. not a majority – joining [the opinion] nonetheless determined that such instruction was directive rather than mandatory; thus, an elector’s failure to comply with the statutory obligation in this case was not a reason to invalidate the ballots,” the suit states.
“Thus, between the three justices signing onto Justice Dougherty’s opinion and Justices Wecht’s opinion, four justices – i.e. not a majority – concluded that the Election Code requires mail-in ballots to be dated before they can be canvassed.”
After the state Supreme Court’s decision, on Nov. 25, the Board “intentionally canvassed and certified the results from the defective ballots to Secretary Boockvar, despite a majority of the Supreme Court finding that such ballots were invalid under the Election Code and despite the absence of a court order requiring the Board to count the defective ballots.”
“Thus, persons in Allegheny County who improperly submitted a signed and undated voter declaration had their ballots counted for the 45th Senatorial District, whereas identically situated persons in Westmoreland County who improperly submitted a signed but undated voter declaration had their ballots not counted for the 45th Senatorial District,” per the suit.
“The foregoing led directly to plaintiff Ziccarelli going from the presumptive winner of the 45th Senatorial District to the presumptive loser.”
After the original injunction request was denied, Ziccarelli filed an amended complaint on Dec. 1.
For counts of equal protection and due process violations, the plaintiff is seeking
• A declaratory judgment that that the Board’s certification of the 2020 General Election Results that included the defective ballots, and the Secretary’s acceptance of the certification, is unconstitutional;
• An injunction preventing the Secretary from certifying any election results regarding the 45th Senatorial District that include the tally of the defective ballots;
• Costs of prosecuting this action together with attorneys’ fees under 42 U.S.C. Section 1988 and such further relief as is just and proper under the circumstances.
The plaintiff is represented by Joshua J. Voss, Matthew H. Haverstick, Eric J. Schreiner and Shohin H. Vance of Kleinbard, LLC, in Philadelphia.
The defendants are represented by Virginia S. Scott, Andrew F. Szefi and Frances M. Liebenguth of the Allegheny County Law Department, Karen M. Romano of the Pennsylvania Attorney General’s Office in Harrisburg, plus Mark A. Aronchick, Michele D. Hangley and Robert Wiygul of Hangley Aronchick Segal Pudlin & Schiller, in Philadelphia.
U.S. District Court for the Western District of Pennsylvania case 2:20-cv-01831
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com