Pa. GOP Cite Lawsuit To Block State Senator's Swearing-In

Law360 (January 5, 2021, 6:22 PM EST) -- Republicans in Pennsylvania's state Senate temporarily evicted the lieutenant governor and refused to seat a Democrat from a suburban Pittsburgh district during the Legislature's first session of the year Tuesday because his opponent was still pursuing a federal lawsuit challenging his 69-vote win.

After a party-line vote in the Republican-majority Senate removed Democratic Lt. Gov. John Fetterman from presiding over Tuesday's swearing-in ceremonies, Senate President Pro Tem Jake Corman ordered that incumbent state Sen. Jim Brewster be excluded from the reading of official votes and the swearing-in because his opponent, Nicole Ziccarelli, had a pending federal lawsuit challenging state court rulings that allowed the counting of ballots whose outer envelopes lacked handwritten dates or addresses.

Once Fetterman was no longer presiding to object, a Senate clerk skipped Brewster's race when reading out the official vote tallies district by district, but Sen. Anthony H. Williams, D-Philadelphia, shouted out the results at the end of the recitation. Brewster tried to join the rest of the Democrats as they were sworn in, but stepped back and did not take the oath after Corman threatened to skip swearing in the entire caucus unless Brewster sat down.

"We can't swear anyone in until the gentleman from the 45th District removes himself from the rostrum," Corman said.

Republicans said Fetterman and Democrats had been the ones breaking the rules by not following the Republicans' vote not to seat Brewster.

"When our rules are not followed, chaos takes over. This is not the first time the lieutenant governor and the Democrats have willfully not followed the rules and done damage to the institution many of us value," said Jennifer Kocher, spokesperson for Corman. "We remain committed to conducting the business of the Senate in accordance with the rules and without displays of partisanship and disrespect that we saw today."

According to the state's official, certified election results, Brewster defeated Ziccarelli by just 69 votes to represent the 45th District, which includes parts of Allegheny and Westmoreland counties. But those totals included mail-in ballots that had been missing handwritten dates or addresses in the "voter declaration" on their outer envelopes, which the Supreme Court of Pennsylvania said could be counted in a Nov. 23 ruling.

Ziccarelli then filed a federal lawsuit Nov. 25 against the state and the Allegheny County Board of Elections, claiming that Allegheny County's decision to count the incomplete ballots while Westmoreland did not was a violation of her equal protection rights, and that the incomplete ballots should be barred from being included in the count, which would have swung the vote in her favor.

U.S. District Judge J. Nicholas Ranjan had denied Ziccarelli's request for a temporary restraining order that would prevent the certification of votes for the race, but set Friday as the final deadline for briefs in the case.

Corman had announced Republicans' intention not to seat Brewster on Monday, citing the pending lawsuit.

"Ziccarelli's position is that Pennsylvania election law is entirely clear that voters must sign and date their mail-in ballot to be counted," Corman said in a statement with Monday's announcement. "She argues that a bipartisan coalition of legislators and Governor [Tom] Wolf agreed on this important integrity and anti-fraud provision, and that his Secretary of State Kathy Boockvar provided clear and consistent instructions to county election boards."

The Supreme Court majority opinion had said the instructions to "fill out and date" the outer envelopes were ambiguous and directory, rather than a clear mandate, since the information had already been preprinted elsewhere on the envelopes. The state had argued that the handwritten date and address did not have any role in preventing fraud, which Ziccarelli's state and federal lawsuits did not allege anyway.

"The Senate did the right thing today by following the rule of law and exercising its constitutional obligation to take up our petition," said Matthew Haverstick of Kleinbard LLC, representing Ziccarelli. "And I'm confident it'll end up with Nicole being recognized as the winner, which she is."

Fetterman told Law360 on Tuesday that the lawsuit was "irrelevant" to whether to seat Brewster, who he said could step down if the court rules in Ziccarelli's favor and throws out enough votes to change the outcome. Brewster's qualifications were the same as every other Senator who was seated Tuesday, he said.

"There was no good, legitimate reason Jim Brewster wasn't seated today," said Fetterman, who noted that his home town of Braddock was within the 45th District and currently had no senator. "It's just bitter partisanship."

Clifford Levine of Dentons Cohen & Grigsby, representing Brewster as an intervenor in Ziccarelli's federal suit, said the suit was an improper "election contest" that needed to be co-signed by 20 voters within 20 days of the election, and needed to allege fraud or illegality if it were to overturn the results.

"Ms. Ziccarelli is simply upset that the Pennsylvania Supreme Court upheld the decision of the Allegheny County Board of Elections to count the votes of 2,349 registered voters," Levine told Law360. "Ms. Ziccarelli has lost in the state courts. A federal court has denied her efforts to block the certification, and now she threatens our democracy by asking that the state Senate majority simply refuse to accept the certification of Senator Brewster's victory. ... It is the voters, not the majority political party in the state Senate, that get to choose the next senator from that district."

Later in the annual ceremonies, Senate Democratic Leader Jay Costa, D-Allegheny, said he would take the rare step of opposing Corman's nomination to resume his duties as president pro tem for the upcoming session, pointing to the dispute over Brewster's win as evidence his colleague was not working for the entire Senate.

"Maybe we need a delay in this nomination as well, as we reconsider the Senate's role in the three branches of government and the temperament required to run such a body," said Sen. Art Haywood, D-Montgomery and Philadelphia. But Corman won reelection 31-18.

Representatives for Allegheny County, the state and Brewster did not immediately respond to requests for comment Tuesday.

Ziccarelli is represented in the federal lawsuit by Matthew H. Haverstick, Joshua J. Voss, Eric J. Schreiner, James G. Gorman III, Samantha G. Zimmer and Shohin H. Vance of Kleinbard LLC.

The Allegheny County defendants are represented by Virginia Spencer Scott, Andrew F. Szefi and Frances Liebenguth of the Allegheny County Law Department.

Pennsylvania Secretary of the Commonwealth Kathy Boockvar is represented by Karen Mascio Romano of the Office of the Attorney General and Mark A. Aronchick, Michele D. Hangley and Robert Wiygul of Hangley Aronchick Segal Pudlin & Schiller.

James Brewster and intervenors from the Pennsylvania Democratic Party are represented by Alex M. Lacey, Clifford B. Levine and Kyle J. Semroc of Dentons Cohen & Grigsby PC and Marco S. Attisano of Attisano & Romano.

The case is Ziccarelli v. Allegheny County Board of Elections et al., case number 2:20-cv-01831, in the U.S. District Court for the Western District of Pennsylvania.

--Editing by Bruce Goldman.

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

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Case Information

Case Title

ZICCARELLI v. THE ALLEGHENY COUNTY BOARD OF ELECTIONS et al


Case Number

2:20-cv-01831

Court

Pennsylvania Western

Nature of Suit

Civil Rights: Voting

Judge

J. Nicholas Ranjan

Date Filed

November 25, 2020

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