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From the archives 2021

Federal judge rules in favor of Democratic Pa. Senate candidate GOP refused to seat

by Sarah Anne Hughes of Spotlight PA |

Sen. Jim Brewster (D., Allegheny)
James Robinson / Pennsylvania Senate Democratic Caucus

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HARRISBURG — A federal judge has upheld the validity of hundreds of undated mail ballots cast in Allegheny County, ruling in favor of a Democratic candidate for Pennsylvania Senate whose win was previously certified by the state.

GOP leaders in the chamber last week refused to seat the winner, incumbent Jim Brewster, during a chaotic session that also saw the temporary removal of Lt. Gov. John Fetterman as presiding officer.

In response to the ruling, the Senate’s top lawmaker, Jake Corman of Centre County, said Brewster will be sworn in this week.

Republican candidate Nicole Ziccarelli filed the federal suit seeking to throw out 2,349 mail ballots that Allegheny County election officials counted even though they did not have a handwritten date, as required by state law. Just over 300 of those votes were cast in Ziccarelli’s race against Brewster, giving him a 69 vote lead.

Ziccarelli had argued that her due process and equal protection rights were violated because election officials in neighboring Westmoreland County — sections of which fall within the 45th senatorial district — did not count undated ballots.

She lost a similar case that went all the way to the state Supreme Court.

In a 14-page ruling, U.S. District Judge J. Nicholas Ranjan said his court was “bound by the Pennsylvania Supreme Court’s interpretation of this state law — which directly applies to the very ballots at issue here.”

“Contrary to Ms. 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,” Ranjan continued. “Thus, because Ms. Ziccarelli’s federal constitutional claims all depend on the invalidity of the ballots under state law, those claims necessarily fail on the merits.”

In a statement, Ziccarelli said she would withdraw a request with the state Senate to overturn the election results and would not appeal the ruling.

Corman, the top GOP lawmaker in the Senate, said the chamber will reconvene Wednesday to swear in Brewster.

“In this case, there was no dispute of facts,” he said in a statement. “There were no allegations of fraud. Instead, we had voters in Allegheny and Westmoreland Counties who made the same mistake on their mail-in ballots being treated differently.”

Corman had previously signaled that if the judge didn’t rule on the case’s merits — finding, instead, it wasn’t a federal matter — the Senate would intervene and decide who to seat.

Senate Democrats accused their Republican counterparts of attempting to steal the election, with Minority Leader Jay Costa (D., Allegheny) saying the party had taken a page from “the Trump playbook.”

“The president pro tempore is to be a leader for the entire body — not of one party,” Costa said of Corman. “Nowhere in the constitution does it say that the leader should be beholden to the partisan whims of his own party.”

While Corman has conceded he doesn’t “have any evidence of misdoing” during the November election, he and other prominent Republicans have repeatedly criticized the Wolf administration and state Supreme Court.

The latter, he and others have argued, overstepped by issuing rulings that accommodated voters during the pandemic. In the case of Brewster and Ziccarelli, three state justices found the lack of a date to be a technical violation of state law, while a fourth said the requirement may not have been clear to voters.

“Senate Republicans believe that … Secretary of State [Kathy] Boockvar was premature in certifying the election,” Corman said in a statement Tuesday. “By delaying the swearing-in of a senator, we took the time to receive this imminent ruling.”

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