Close Pa. State Senate Race Could Hinge On Undated Ballots

Law360 (November 20, 2020, 10:25 PM EST) -- The Pennsylvania Supreme Court agreed Friday to decide if the Allegheny County Board of Elections should count more than 2,300 mail-in ballots that were missing a handwritten date, which could potentially sway a state Senate race outside Pittsburgh that was tied as of Friday morning.

Together with several consolidated cases over similar ballots from Philadelphia, the state's high court will decide if certain lines on the ballots' outer envelopes had to be filled out with the voter's printed name, address and date of signing in order for the votes within to be counted.

"Does the Election Code require the Allegheny County Board of Elections to disqualify mail-in ballots submitted by qualified electors who signed their ballot's outer envelopes but did not handwrite a date, where no other fraud or irregularity has been alleged, and the ballot is timely received?" said the order defining the question for the justices.

The justices said they would consolidate the Allegheny County case with the Philadelphia ones, and would consider the case based on the briefs parties had already filed with the Commonwealth Court.

Though the Commonwealth Court had sided with Republican candidate Nicole Ziccarelli and said the 2,349 ballots shouldn't be counted as of Thursday night, the Allegheny County Board of Elections and her opponent for the 45th State Senate District seat, Democratic incumbent Jim Brewster, asked the Supreme Court to take up the case.

Ziccarelli and Brewster had been tied with 65,978 votes each on Friday, according to the state's unofficial totals, but the district is split between Allegheny County, with the ballots at issue, and Westmoreland County, which was still counting provisional ballots.

Allegheny County's Board of Elections had split 2-1 on partisan lines in favor of counting the undated ballots. A Court of Common Pleas judge agreed that they should be counted, and the Commonwealth Court panel also split 2-1 on its order reversing the decision.

Before the Commonwealth Court ruled, Ziccarelli had petitioned the Supreme Court to take the case, but withdrew that request when the lower appellate court ruled in her favor. She had argued that the state Election Code says voters " shall ... fill out, date and sign" the outer envelope, and the courts should read that as mandatory, as the Supreme Court had with the ballots' inner privacy envelopes.

Allegheny County's petition to the court said the ballots had other dates to indicate when they were received, including in the statewide computer system for tracking mail-in ballots, the postmarks they received if mailed, and dates written on them by the Board of Elections. The voters' hand-dating when they signed the declaration on the outer envelope was not an anti-fraud measure, the petition said.

"The Commonwealth Court's decision creates an emergency and raises questions of immediate and significant importance that directly affect both thousands of individual Allegheny voters, and, potentially, other voters throughout the Commonwealth," the county's petition said. "As it currently stands the Commonwealth Court's decision, if not corrected, will cause 2,349 Allegheny voters to lose their vote because of a minor technical irregularity on their ballot declarations. This situation is of crucial importance to these voters, Allegheny, and the Commonwealth as a whole."

An attorney for Ziccarelli said he was not surprised the justices took the case.

"The core issue is already in front of the court in the Philadelphia case," said Matthew Haverstick of Kleinbard LLC. "The Supreme Court was always going to decide, whether we were part of it or not. … I'd rather be part of it."

Ziccarelli also won a Commonwealth Court decision Friday that kept the county from counting 270 technically deficient provisional ballots, but those votes were not part of the case before the Supreme Court.

"We are pleased that the court is going to take up this important issue regarding these ballots that the BOE voted to count," said Allegheny County Solicitor Andrew Szefi. "We look forward to a swift resolution of the matter that impacts our county voters."

Counsel for Brewster did not immediately respond to requests for comment.

The Allegheny County Board of Elections is represented by Andrew F. Szefi, Virginia Spencer Scott and Frances M. Liebenguth of the Allegheny County Law Department.

Ziccarelli is represented by Matthew H. Haverstick, Shohin H. Vance and Samantha G. Zimmer of Kleinbard LLC.

Brewster and the Democratic Party of Pennsylvania are represented by Michael J. Healey of Healey Block LLC, Marco Attisano of Attisano & Romano LLC, and Clifford B. Levine and Kyle J. Semroc of Dentons Cohen & Grigsby PC.

The case is In Re: 2,349 Ballots in the 2020 General Election (Allegheny), case number 29 WAP 2020, in the Supreme Court of Pennsylvania.

--Editing by Aaron Pelc.

For a reprint of this article, please contact reprints@law360.com.

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