PITTSBURGH – Due to a federal judge’s ruling on Tuesday, the state senator for Pennsylvania’s 45th District comprising parts of both Allegheny and Westmoreland counties will in fact be Democratic incumbent Jim Brewster.
U.S. District Court for the Western District of Pennsylvania Judge J. Nicholas Ranjan denied an attempt from the campaign of Republican state Senate challenger Nicole Ziccarelli to throw out mail-in ballots submitted in Allegheny County without a listed date, finding the 311 ballots in question were valid and properly counted toward Brewster’s victory.
The Supreme Court of Pennsylvania had first ruled Nov. 21 in its majority decision that the undated mail-in ballots that Ziccarelli challenged should be counted in the final vote totals, in her race against Brewster.
The Court found that though the missing dates are a technical violation of the Election Code, those errors did 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 objected 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 stated.
“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.”
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.
After an injunction request was denied, Ziccarelli filed an amended complaint on Dec. 1. Soon afterwards, Brewster was certified as the winner of the election in December, garnering 69 more total votes than Ziccarelli.
Yet, Ziccarelli did not concede and went on to contest the election results in the Allegheny County Court of Common Pleas, the Commonwealth Court of Pennsylvania and the Supreme Court of Pennsylvania.
Ziccarelli’s challenge centered on the fact that undated mail-in ballots from Allegheny County were counted in the vote totals, while similar undated mail-in ballots from Westmoreland County were not.
Had the 311 undated mail-in ballots from Allegheny County not been counted, Ziccarelli would have won the election by 93 votes.
Earlier this month, Ziccarelli asked the state Senate to overturn the results – which resulted in a chaotic scene in Harrisburg, as Brewster’s swearing-in ceremony was refused and Democratic Lt. Gov. John Fetterman, the leader of the state Senate, was led out of the chamber by Senate Republicans.
According to Ranjan, Ziccarelli incorrectly interpreted the state Supreme Court’s rulings in November. As her claims were entirely predicated upon the contested ballots being invalid, Ranjan’s ruling declaring the ballots as valid and legally proper made her case null and void.
“After a careful review of the parties’ cross-motions for summary judgment, the Court disagrees with Ziccarelli’s positions. The Court’s fundamental disagreement is with Ziccarelli’s interpretation of the Pennsylvania Supreme Court’s decision,” Ranjan said.
“Contrary to Ziccarelli’s reading, the Court finds that the Supreme Court expressly held that the undated ballots at issue remain valid ballots that are properly counted under state law. Thus, because Ziccarelli’s federal constitutional claims all depend on the invalidity of the ballots under state law, those claims necessarily fail on the merits.”
Ranjan added that the state Supreme Court ruling from November was binding on the issue instant federal case, as to proceed otherwise would “run afoul of the Rooker-Feldman doctrine.”
That doctrine prevents federal courts from re-litigating issues already decided in state court.
“In the end, four justices – in a case brought by the same plaintiff and challenging the very same ballots at issue here – interpreted Act 77’s date requirement as not invalidating non-compliant ballots under the circumstances present here, and thus held that Allegheny County’s decision to count those ballots was proper. That interpretation of Pennsylvania law is binding on the federal courts, including on this Court,” Ranjan said.
On Tuesday afternoon and subsequent to Ranjan’s ruling, Pennsylvania Senate President Pro Tempore Jake Corman tweeted that Brewster would be sworn in at 11 a.m. on Wednesday morning.
The plaintiff was represented by Joshua J. Voss, Matthew H. Haverstick, Eric J. Schreiner, James G. Gorman III, Samantha G. Zimmer and Shohin H. Vance of Kleinbard, LLC, in Philadelphia.
The defendants were 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