Court decisions loom in tied state Senate race between Brewster-Ziccarelli

Lawyers for the campaigns of Democratic incumbent state Sen. Jim Brewster and Republican challenger Nicole Ziccarelli continued to argue in two different courts Friday over the legality more than 400 ballots cast in two counties that will swing the outcome of the tied race for the 45th District, which straddles parts of Allegheny and Westmoreland counties.

Scrutiny over each ballot cast this month has intensified as the campaigns look to state and county courts to decide the fate of certain mail-in and provisional votes.

According to unofficial state results, as of late Friday both candidates had 65,978 votes each with some ballots still waiting to be counted as lawyers argue over their legality.

The Pennsylvania Supreme Court on Friday stayed a Commonwealth Court order issued a night earlier to bar Allegheny County from counting more than 2,300 mail-in ballots because of technical defects, such as incorrect dates that appeared on an outer envelope. Lawyers said 313 of those questioned ballots were cast in the 45th Senate District.

That decision was appealed to the state’s high court, which consolidated the case with a similar filing involving thousands of accepted ballots in Philadelphia with similar issues. The Supreme Court issued an order Friday that it would base its ruling after reviewing previously filed written arguments.

Meanwhile, in Westmoreland County lawyers for both campaigns argued before Common Pleas Court Judge Harry Smail Jr. over the admissibility of provisional ballots that county commissioners voted to accept for counting even though voters signed precinct poll books that indicated they had cast ballots on voting machines. Smail said he will expedite his ruling.

The Ziccarelli campaign is seeking to invalidate as many as 500 provisional ballots cast in Westmoreland County, including 110 from voters in the 45th District.

Ziccarelli campaign attorney Matthew Haverstick said the county board of elections abused its discretion in allowing those votes to be counted, including hundreds where no evidence was presented to ensure that voters did not also cast ballots on voting machines at the polls.

“The only other solution is to void all those ballots. If there was an error, that’s of no note. We don’t know there was a mistake in every one of those cases,” Haverstick said.

He also suggested that about 46 voters who cast challenged provisional ballots and later testified before the elections board — either in person, on the telephone or who submitted signed affidavits — that they did not vote using precinct machines could be counted.

Westmoreland commissioners, who also sit as the board of elections, determined that poll workers across the county were improperly trained and erroneously directed voters to sign poll books.

County solicitor Melissa Guiddy argued that after hearing testimony from dozens of voters and one poll worker, commissioners issued a blanket ruling to accept votes cast under that circumstance when it became clear there was a systemic problem with how judges of elections were advising voters at the polls.

“We shouldn’t disenfranchise voters because of a poll worker error. Voters shouldn’t be the one to bear that error,” Guiddy said.

Attorney Marco Attisano, arguing on behalf of the Brewster campaign, told the judge that it was improper to use different standards to accept some provisional ballots but reject others. All provisional voters signed affirmations on the paperwork that accompanied their provisional ballots that they did not cast other votes, he said.

“Every voter the Ziccarelli campaign is attempting to disenfranchise did that already by signing their provisional ballot,” Attisano said.

Elections boards in both Allegheny and Westmoreland are scheduled to certify election results Monday.