Ziccarelli concedes, Brewster to be sworn in Wednesday morning

State Sen. Jim Brewster, who will be sworn in Wednesday to the 45th District seat, said it has been a long two months of legal maneuvering as he defended his seat from court challenges raised by Republican challenger Nicole Ziccarelli.

The incumbent Democrat said Tuesday — hours after a federal judge ruled Brewster lawfully won the seat — that he looks forward to working for the 38 communities in his district.

“We’ve got a lot to do, and I’m excited about that,” he said.

Brewster listed among his priorities helping businesses stay open during the pandemic, providing broader distribution of the covid-19 vaccine and addressing the economy and addiction issues. “I’m anxious to get sworn in,” he said.

State Senate President Pro Tempore Jake Corman tweeted that Brewster would be sworn in at 11 a.m. Wednesday. A short time later, Ziccarelli issued a statement saying she would not make any further appeals and wished Brewster well as he takes the oath for a new term.

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— Nicole Ziccarelli PA (@PaZiccarelli) January 12, 2021

Running for his third term in the district that serves parts of Allegheny and Westmoreland counties, Brewster was certified by state election officials in December as the winner with 69 more votes than Ziccarelli, a New Kensington attorney. But, after an unsuccessful challenge at the state Supreme Court, Ziccarelli filed a federal court action, alleging the undated mail-in ballots in Allegheny County should not be counted.

Late Tuesday morning, U.S. District Judge J. Nicholas Ranjan disagreed and said the ballots are valid.

In a 14-page opinion, Ranjan said Ziccarelli’s argument over equal protection concerns — in that Allegheny County counted undated ballots but Westmoreland County did not — fails because it revolved entirely on the ballots being invalid, which they aren’t.

“[T]he 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. This causes Ms. Ziccarelli’s federal claims to fail on the merits,” Ranjan wrote.

Ziccarelli had refused to concede and instead challenged the election results in Common Pleas Court, Commonwealth Court and the state Supreme Court.

The Tuesday decision in federal court was Ziccarelli’s only court case remaining. At the beginning of the month, she had asked the state Senate to overturn Brewster’s election — sending the Senate floor last week into chaos as Republicans in the chamber removed Lt. Gov. John Fetterman as president of the Senate and then blocked Brewster, of McKeesport, from being seated.

Gov. Tom Wolf issued a statement Tuesday afternoon demanding Brewster be seated.

“The tragic events of the past week are a reminder that democracy must be preserved for today and future generations. The voters decide elections, not powerful Harrisburg politicians. Our nation has been through too much pain and disruption for this shameful power grab to continue,” Wolf said.

“Senate Republicans may not like the outcome of the election, but they cannot overturn the will of the people in Western Pennsylvania or ignore court decisions,” the governor added. “Refusing to seat Sen. Brewster and leaving the district without a voice would be unethical and undemocratic. The Senate Republicans have no choice. Sen. Brewster must be sworn in.”

Allegheny County Solicitor Andy Szefi said Ranjan’s decision shows Allegheny County’s Board of Elections properly counted the votes.

“A great deal of time and effort was taken throughout this election process to ensure that voters’ voices were heard,” he said. “Today’s ruling validates that commitment to our democratic process.”

Ziccarelli’s challenge stemmed from 311 mail-in ballots cast in Allegheny County that did not include a date written by the voter on the outside mailing envelope. All of the ballots were received on time, and the county’s Board of Elections agreed they should be counted. All mail-in ballot envelopes are time-stamped by the county upon arrival.

The Pennsylvania Supreme Court, which already ruled on the Ziccarelli challenge, allowed the ballots to be counted.

Westmoreland County’s election board did not count ballots missing the date on the outside mailing envelope.

In his opinion Tuesday, Ranjan said if the Allegheny County undated ballots were not counted, Ziccarelli would have won the race by 93 votes. Ranjan was appointed to the bench by President Trump and began serving in August 2019.

Ziccarelli argued in her federal court challenge that the state Supreme Court decision on the matter did not create a clear majority. That’s because, she said, Justice David Wecht issued a concurring and dissenting opinion — in which he said he would prefer in the future that the date requirement on ballots be treated as “mandatory” and not “directory.”

Ranjan called Ziccarelli’s argument clever but said she read the state Supreme Court opinions incorrectly.

“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),” Ranjan wrote.

“Thus, he determined that it ‘would be unfair’ to interpret the election code ‘to punish voters for the incidents of systemic growing pains.’ ”

The state Supreme Court’s interpretation of the law, Ranjan wrote, is binding in federal court. The judge also said his court does not have authority to determine whether Pennsylvania’s Supreme Court decision violated the U.S. Constitution.

Instead, he said that right belongs exclusively to the U.S. Supreme Court.

In a footnote, Ranjan added, “Aside from the failure to date the declaration on their ballots, there is no suggestion from either party that the voters who cast the challenged ballots here lacked the qualifications to vote or that the ballots they cast were fraudulent. Nor is there any suggestion that the ballots in question were untimely mailed. Thus, at bottom, this case concerns ballots cast by lawful voters who wished to vote (presumably for both Mr. Brewster and Ms. Ziccarelli, though in different proportions) but simply failed to comply with a technical requirement of the election code.”

Ziccarelli said in a statement she accepts Ranjan’s ruling but disagrees with it.

“I believe that election laws passed by the Legislature are meant to be followed,” she said. “They were not in this election. I am proud that our team fought for a fair and free election based on the law that was passed, and I will never regret standing up for that principle.”

In a statement, Corman said voters in Allegheny and Westmoreland counties were treated differently.

“Senate Republicans believe that — considering this obvious defect — the Secretary of State (Kathy) Boockvar was premature in certifying the election,” he said. “By delaying the swearing-in of a senator, we took the time to receive this imminent ruling.”

Ziccarelli urged Brewster to fight for funding and economic development.

“Based on the razor-thin election results in this district, there is no question that we are divided right down the middle,” she said.

Brewster said he has always tried to act in a bipartisan manner.

“I’ve always tried to find the middle road and pull people together,” he said.

Once things have settled, he hopes to do a post-mortem on the election, which he said was “riddled with misleading information.”

“You can’t just make stuff up. At some point in time, you have to correct the ship,” Brewster said. “How do we communicate with people what the real truth is?”

Brewster also said he was ashamed his district’s Senate race cost more than $4 million to run while some members of the community are standing in food lines.

“We shouldn’t be spending this kind of money on an election,” he said. “That’s unacceptable.”