Fed. Judge Rejects GOP Challenge To Pa. Senator's Election

Law360 (January 12, 2021, 2:58 PM EST) -- A Democratic Pennsylvania state senator blocked from his swearing-in ceremony last week by the Republican majority was lawfully reelected in the November election, a federal judge ruled Tuesday.

Federal District Judge Nicholas Ranjan in Pennsylvania's Western District sided with the Allegheny County Board of Elections that the county's undated mail-in ballots are valid and should be counted. The decision upholds an opinion from the state Supreme Court and keeps intact Sen. Jim Brewster's slim victory over challenger Nicole Ziccarelli in the 45th Senate District. Senate Pro Tem Jake Corman tweeted Tuesday afternoon that Brewster would be sworn-in Wednesday at 11 a.m.

"The correct interpretation of the Pennsylvania Supreme Court's decision on Ms. Ziccarelli's state-court appeal is that the challenged ballots are valid and may properly be counted," Judge Ranjan wrote in his opinion. "This causes Ms. Ziccarelli's federal claims to fail on the merits."

"We are pleased with the outcome of Judge Ranjan's opinion," said Cliff Levine of Dentons Cohen & Grigsby PC in Pittsburgh, which represented Brewster and the state Democratic party as intervenors in the suit. "He went into the propriety of the Supreme Court's decision and indicated it was very clear four justices were ordering the ballots counted."

Ziccarelli argued in the federal suit that allowing the undated ballots violated the due process and equal protection clause of the Constitution. Allegheny County counted undated mail-in votes, but neighboring Westmoreland County did not. The unequal treatment by the counties "diluted the power of the vote," she argued in the complaint.

The argument rests on the fact the state Supreme Court's opinion reflected the 4-3 mandate in favor of validating the undated votes, but not the majority opinion. Justice David Wecht voted with the majority, but his concurrent opinion agreed with the three dissenting judges over the language of the underlying law. Justice Wecht agreed that a handwritten date on the outside envelope was mandatory, not a directory instruction.

The difference, Judge Ranjan pointed out in his opinion, is that Justice Wecht said the mandatory nature of the dated envelope should be applied prospectively to future races, not on the Allegheny County ballots in question.

"In Justice Wecht's view, prospective application was justified here due to a lack of clarity in the election code, the absence of case law interpreting the relevant provisions, and conflicting guidance leading up to the election from various state and local election officials (likely due to the absence of any binding interpretation of the code)," Judge Ranjan wrote.

Ziccarelli's attorneys did not respond to a request for comment. She said in a statement released Tuesday afternoon that she disagrees with the ruling and is "disappointed that election laws were changed by state judges after the election," but she respects Judge Ranjan's position. Ziccarelli wished Brewster well on his new term, reminding him that the race's thin margin reflected a divided district.

"I am asking all of us to come together and support Senator Brewster," Ziccarelli said. "For the best interests of all residents of the 45th, I will not further appeal this decision and will withdraw my contest filed with the Senate."

Senate Pro Tem Jake Corman said in a statement last week that he would immediately seat whichever candidate Judge Ranjan ruled in favor of, and it would not be delayed by any appeals. That is, if the judge ruled on the merits of the case and not on the lack of jurisdiction.

The decision validates the Allegheny Board of Elections' certification of Brewster's election-day win over Ziccarelli. His re-election was decided by a razor-thin 69-vote majority, but Ziccarelli sued the board over its inclusion of 311 mail-in ballots missing dates on the outer envelopes. If those ballots were tossed, Ziccarelli would have won by 93 votes.

The Pennsylvania State Supreme Court ruled in November that the votes should be counted, and it would not apply a handwritten date rule retroactively to ballots that were otherwise properly completed. The department of state certified the election, and Brewster was declared the winner.

However, he was denied his seat at a raucous Senate swearing-in ceremony last week in Harrisburg. Lt. Gov. John Fetterman was ousted by the Republicans from his traditional role of overseeing the ceremonies, and Corman allowed a vote approving the exclusion of Brewster.

The state Democratic party tweeted a statement shortly after Judge Ranjan's opinion was released, calling for Brewster to be immediately seated.

"We've had enough division," the statement said. "We've had enough partisan politics. It's time to move on. Senator Brewster was the winner when the votes were counted, then recounted, then litigated, and then certified."

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 Alyssa Miller.

Update: This story has been updated with comments from Ziccarelli.

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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