Commonwealth Court to Allegheny County: Don't count -- for now -- disputed ballots in tight Brewster-Ziccarelli Senate race

An Allegheny County judge on Wednesday denied two petitions by Republican state Senate candidate Nicole Ziccarelli to throw out provisional and faulty mail-in ballots in her challenge against Democratic incumbent Sen. Jim Brewster, D-McKeesport.

But the state Commonwealth Court on Wednesday night later ordered Allegheny County’s Board of Elections to hold off counting more that 2,300 disputed ballots.

Ziccarelli was trailing Brewster by just 28 votes Wednesday afternoon. The 45th Senatorial District includes portions of Westmoreland and Allegheny counties, including towns in the Alle-Kiski Valley.

Ziccarelli filed petitions seeking to have provisional and mail-in ballots disqualified.

In Allegheny County, Common Pleas Judge Joseph James heard arguments Tuesday.

Matthew Haverstick, the attorney representing Ziccarelli, said they would appeal immediately to Commonwealth Court, which they did later Wednesday night.

But they also expect to participate in a case the state Supreme Court accepted Wednesday dealing with similar issues out of Philadelphia County.

“We expect his opinion will be reversed on appeal,” Haverstick said. “We think the court’s decision is legally incorrect.”

Westmoreland appeal

About 300 provisional ballots from that race remain uncounted in Westmoreland County, officials said.

The Ziccarelli campaign late Wednesday afternoon appealed the Westmoreland County Elections Board decision to count about 250 provisional ballots that previously had been rejected. Campaign lawyers contend the board’s blanket decision to allow all provisional ballots in cases where voters signed poll books on Election Day constituted an abuse of discretion.

The Westmoreland commissioners, acting as the elections board, determined poll workers erred in directing voters to sign poll books before casting provisional ballots. The signing of a poll book typically denotes a voter cast a ballot on voting machines at the precincts.

Dozens of voters testified before the elections board they did not vote on the machines and signed poll books only when directed to by poll workers.

Ziccarelli campaign lawyers contend commissioners should only have accepted ballots from 23 voters who testified before the elections board or submitted signed affidavits in which they attested to not voting on precinct machines.

“Rather than adhere to the foregoing duty to confirm a voter did not vote twice, the Board of Elections unilaterally upheld challenges to all 250 provisional ballots previously rejected to this poll book signature issue,” according to the court filing. “The Board of Elections issued this determination even though for the overwhelming majority of these ballots the board had zero testimony let alone sworn testimony explaining what occurred at the polling place.”

The campaign also claimed commissioners violated constitutional provisions for a fair election by accepting some ballots rejected for a lack of secrecy envelope while accepting others with the same potential defect.

A hearing on the Ziccarelli campaign appeal is tentatively scheduled for Friday before Common Pleas Judge Harry Smail Jr.

Vote count continues in Allegheny

Votes in Allegheny County were continuing to be counted Wednesday.

Ziccarelli challenged a 2-1 election board vote to count 2,349 mail-in ballots that did not contain a date on the outer envelope. She said that because the date was missing, the ballots did not comply with the Election Code.

Attorneys for Allegheny County’s election board argued that the ballots were time-stamped when they were received, showing that they were submitted by the electors prior to the state-mandated deadline.

In his opinion, James said he agreed with the election board that the date provision in the election code is not mandatory.

“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.

He said the ballots at issue are sufficient even without a voter-supplied date because they were processed in the Statewide Uniform Registry of Electors online system.

“They were signed and have been otherwise properly completed by a qualified elector,” James wrote. “In light of the fact that there is no fraud, a technical omission on an envelope should not render a ballot invalid.”

But Commonwealth Court a hold on counting those ballots, at least for the time being. The order gave both sides until noon Thursday to file briefs with the court.

Relative to the approximately 300 provisional ballots Ziccarelli sought to disqualify, she argued they were missing one of two required signatures from the voter, and again, did not comply with the election code.

The election board argued that it was a failure of poll staff that the ballots did not contain both signatures, and voters should not be punished for someone else’s mistake.

“Many people are unfamiliar with this process and rely on information given to them at the polling location,” James wrote. He cited Pennsylvania law that addresses a breakdown in the administrative process.

“In construing election laws, while we must strictly enforce all provisions to prevent fraud, the overriding concern at all times must be to be flexible in order to favor the right to vote,” James wrote. “Our goal must to be enfranchise and not to disenfranchise.”

Because there was no fraud alleged, James wrote, the ballots must be counted.