Ziccarelli continues to say certain mail-in ballots shouldn't be counted, even after courts disagree

Republican state Senate candidate Nicole Ziccarelli trails incumbent Democrat Jim Brewster by 91 votes in Pennsylvania's 45th state Senate District, but she is still fighting over whether hundreds of mail-in ballots should be counted.

About 300 mail-in ballots from Allegheny County, which were turned in on time and filled out properly except were missing hand-written dates on their outer envelopes, were recently counted thanks to a Pennsylvania Supreme Court decision.

When it meets Monday, the Westmoreland County Board of Electors is expected to decide whether to allow some 343 mail-in ballots cast in the 45th Senatorial District to be counted. These undated ballots are similar to those in Allegheny County that were recently ruled valid. However, Ziccarelli doesn’t believe they should be counted, while Brewster says they should be counted.

The ballots are missing hand-written dates on their outer envelopes, and Ziccarelli wants them tossed, citing state election code that says mail-in ballots need to have a voter-printed date on them.

SD-45 comprises of the Upper Mon Valley, eastern Allegheny County, as well as New Kensington in Westmoreland County and its surroundings

After the state Supreme Court ruled against her, Ziccarelli asked a U.S. District Court judge in Pittsburgh not to count the contested, undated ballots in county-certified election results. But Judge J. Nicholas Ranjan rejected the request for a restraining order saying it would disenfranchise potentially thousands of voters, and that the ballots had arrived on time and were otherwise without errors. Ranjan was appointed by Republican President Donald Trump.

But Westmoreland County had not yet counted ballots with a similar defect, which the Ziccarelli campaign argued amounted to unequal protection under the Constitution, in its effort to discount the Allegheny County ballots. However, now that the Allegheny ballots have been counted, the Ziccarelli campaign is still arguing the Westmoreland ballots shouldn't be counted. It’s unclear how the remaining 343 Westmoreland ballots will break, but thousands of previous mail-in ballots in Westmoreland have broken towards Brewster by about a 2-1 margin.

Since Pennsylvania votes are certified by county boards of electors, there is some gray area on some of the finer points of what should be allowed and what shouldn’t when it comes to ballots; an element of discretion, essentially.

But the state Supreme Court ruled on Nov. 23 that county election boards aren’t required to disqualify mail-in ballots for small technical concerns, including a missing date, handwritten name or address, provided no fraud is involved. A missing signature isn’t a “weighty interest,” the majority of the court ruled, and such minor errors are “at worst, entirely immaterial,” and does not invalidate the ballot.

Ziccarelli attorney Matt Haverstick said in an email to Pittsburgh City Paper that the ballots with missing dates should not be counted. “If including these illegal votes determines the outcome of the race, then Mr. Brewster is illegitimately retaining the seat. We will continue to fight against such a bogus outcome.”

Before the mail-in ballots in question were counted, Ziccarelli held a lead by about four votes, and at one point, the election was literally tied.

While the letter of the law requires mail-in ballots to have the date signed by the voter, Common Pleas Court and the state Supreme Court have agreed with officials in Allegheny County that the law should tilt toward enfranchisement. Essentially, not dating the ballots amounts to error on the part of a voter, not an active fraud attempt.

Clifford Levine, an attorney for Brewster and the Democratic Party, said the Ziccarelli campaign was taking “a very calculated approach" and is looking to disenfranchise some voters.

"They’re saying these Westmoreland County voters should be disenfranchised,” Levine said. “Senator Brewster is urging for those votes to be counted."