Allegheny County judge to weigh mail-in ballot issue in Nicole Zicarelli challenge

An Allegheny County judge said that he’ll make a decision on Wednesday whether to count undated mail-in ballots that could impact the race for the 45th state Senate District race between incumbent Democratic Sen. Jim Brewster and Republican challenger Nicole Ziccarelli.

Ziccarelli filed a petition against the county Election Board last week. She argued that the 2,349 mail-in ballots that arrived without dates written by the voter on the mailing envelope — and which the board voted 2-1 to count — ought to be excluded from the vote totals in her race. On Tuesday, the county solicitor’s office said that the number of ballots taken from the district of the Senate race, specifically, are less than 313.

As of Tuesday, Brewster was leading by 30 votes in the race, which includes portions of both Westmoreland and Allegheny counties.

Ziccarelli’s attorney, Matthew Haverstick, argued to Common Pleas Judge Joseph James on Tuesday morning that the issue is simple.

“The statute, itself, is quite clear,” he said to the judge. “Mail-in ballots are required to have a signature and date” on the mailing envelope.

But Allegheny County solicitor Virginia Scott said that the intention of the law is to ensure voters are not disenfranchised.

“There’s no malfeasance. There’s no fraud. There’s no collusion,” she said. “There’s nothing untoward.”

Scott, who argued that Ziccarelli doesn’t have standing to challenge the ballots in question, said the Election Code does not tolerate what the petitioners are asking for.

“Petitioner came here trying to disenfranchise them because they made a technical mistake on their ballot,” she said.

According to Scott, the ballots in question have not yet been added in to the vote totals, and Ziccarelli is already behind in the race.

“If these ballots are not counted, she’s still going to be behind,” she said.

Haverstick argued that the state Supreme Court decision in September that allowed for a three-day extension on receiving mail-in ballots postmarked by Nov. 3 controls the question.

“Shall means shall,” he said.

But Scott said nothing in that case says that a ballot without a date on the mailing envelope would be invalid.

“It is not required a ballot be filled out perfectly,” Scott said. “It’s required that it be filled out sufficiently.”

Michael Healey, who represents the state Democratic Party and Brewster, said that there’s no question that the ballots in question were received on time. When the elections division received the ballots, he said, they were time stamped, and the statewide electronic SURE system also includes dates. Those things, he said, are the best evidence.

“There is no allegation of fraud here,” Healey said. “The code is to be liberally construed to franchise voters.”

But Haverstick countered that the legislature made it clear.

“You have to follow the rules in the Election Code,” he said. “You either put the date on or you didn’t.”

Ziccarelli also moved on Monday to seek to have approximately 270 of 17,000 provisional ballots cast in Allegheny County not be counted.

In her petition, she argued that those ballots were either missing one of two required signatures or were cast by an elector whose mail-in ballot was defective.

Again, Haverstick argued to Judge James that the language of the Election Code is clear that if the provisional ballot does not have both required signatures, it should not be counted.

“The statute brooks no doubt,” he said.

But attorney Allan Opsitnick, who represented the county during the second argument before James, said that the error on the provisional ballots was the fault of the elections staff who didn’t properly instruct the voters.

He called it an “administrative breakdown” that should not be allowed to disenfranchise the voter.

Elections Division Manager David Voye testified before the Board of Elections on Saturday, Opsitnick said, that “the voter should not suffer for an error of the Board of Elections.”