Ziccarelli asks Pa. Supreme Court to reconsider decision to count undated Allegheny County ballots

The Republican challenger in the 45th Senatorial District that includes parts of Allegheny and Westmoreland counties has asked the state Supreme Court to reconsider its Monday order allowing undated mail-in ballots to be counted.

Nicole Ziccarelli, of Lower Burrell, filed an emergency application for reargument Tuesday morning. She is running in the race against Democratic incumbent Sen. Jim Brewster.

As of late Tuesday morning, Ziccarelli was leading by four votes, according to online results in the district that includes the Alle-Kiski and Mon valleys. That number, however, still does not include the undated ballots in Allegheny County, which break for Brewster by 94 votes.

On Monday, the state Supreme Court issued a split decision on the issue, with the majority finding that the 2,349 undated mail-in ballots that Ziccarelli challenged ought to be counted.

The court wrote that the missing dates are a technical violation of the Election Code but do not warrant disenfranchising thousands of voters. On the back of the envelope for mail-in ballots, voters are told to write the date, plus their signature, printed name and address.

The majority opinion, written by Justice Christine Donohue, was joined by Justices Max Baer and Debra Todd, with Justice David Wecht concurring in the results. Wecht wrote a concurring and dissenting opinion, as did Justice Kevin Dougherty, in which Chief Justice Tom Saylor and Justice Sally Updyke Mundy joined.

That split is what prompted Ziccarelli’s request for reargument.

Her attorney noted that Wecht, Dougherty, Saylor and Mundy all agreed that the undated ballots were not compliant with the Election Code and therefore are invalid.

“Nevertheless, the court then allowed those ballots to be canvassed and counted, even though a majority of the justices agreed that they were statutorily invalid.”

In his concurring and dissenting opinion, Wecht wrote that in future elections, he would treat the date and signing requirement in the Election Code as mandatory. That means, he wrote, that the omission of either is sufficient to invalidate a ballot.

“However, under the circumstances in which the issue has arisen, I would apply my interpretation only prospectively,” Wecht wrote.

In her request for reargument, Ziccarelli’s attorney, Matthew Haverstick, writes that a court decision announcing a new rule of law is to be applied retroactively so that the party bringing a challenge can benefit.

“At a minimum, the decision should apply to the litigants presently before the court—namely Ms. Ziccarelli, since she filed the action, she’s uniquely impacted by it and the outcome of the case is potentially outcome-determinative in her race, unlike in the Philadelphia companion cases.”

Ziccarelli also argues that the court’s decision is in direct conflict with a Commonwealth Court decision that disallowed more than 200 provisional ballots in Allegheny County that were not filled out properly.

The state Supreme Court refused to hear that case, thereby allowing the Commonwealth Court order to stand.

“Such a result does violence to the fundamental principle that ‘Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage,’” Ziccarelli’s attorneys wrote.

In the county’s brief answer to the court, attorneys wrote that Ziccarelli is not entitled to reargument because the issue falls under the Election Code. Under Pennsylvania Rules of Appellate Procedure, they wrote, matters involving elections “require expeditious treatment” and reargument is not permitted.

Relative to the issue of the undated ballots, the county argued in the past that they were time-stamped upon receipt by the elections board, as well as within the state online database.

In its opinion Monday, the state Supreme Court said that having a voter date the ballot is “unnecessary and, indeed, superfluous.”