State Senate seat winner to be determined by federal lawsuit

A pending federal lawsuit is likely to determine who represents residents in the state’s 45th Senatorial District.

Incumbent Jim Brewster, a Democrat from McKeesport, currently holds a 73-vote lead over New Kensington lawyer Nicole Ziccarelli, a Republican.

But a federal judge in Pittsburgh is considering a lawsuit Ziccarelli’s campaign filed in late November seeking to overturn an Allegheny County Board of Elections decision to count more than 2,300 ballots submitted with incorrect or missing dates handwritten on outer envelopes.

Should the judge decided to invalidate those ballots, the race could swing in Ziccarelli’s favor.

More than 132,000 votes were cast in the race.

U.S. District Judge Nicholas Ranjan has yet to rule on the lawsuit filed after the Pennsylvania Supreme Court in late November rejected a similar challenge.

Ranjan earlier this month rejected a Ziccarelli request to grant a preliminary injunction seeking to bar state election officials from certifying Allegheny County results in the Senate race.

Pennsylvania Department of State spokeswoman Wanda Murren said in an email Wednesday that no “down ballot” races, including the 45th Senatorial District results, have been certified.

“That race is not yet certified,” Murren said. “We certify the whole class of races at the same time, consistent with past years, and they are expected to be done this week.”

Brewster gained 94 net votes when the questioned Allegheny County ballots were counted and vaulted him into the lead.

The pending federal lawsuit involves a claim that Ziccarelli’s equal protection rights were violated when elections officials in the two counties that are part of the 45th Senatorial District — Allegheny and Westmoreland — took different paths in how to handle potentially defective mail-in ballots.

“We think illegally cast ballots should not be counted,” Ziccarelli campaign manager Ben Wren said.

Westmoreland County’s two Republican commissioners refused to consider counting more than 340 defective ballots, including dozens cast in the 45th District race.

Lawyers for the Ziccarelli campaign last month urged Westmoreland County Board of Elections members to reject the ballots, which as of Wednesday remain uncounted.

Wren said Ziccarelli is poised to win the Senate seat by about 20 votes if the federal lawsuit is decided in her favor.

Clifford Levine, a lawyer for the Brewster campaign, said arguments made to the Westmoreland County Board of Elections created the claimed inequity. The Brewster campaign unsuccessfully lobbied Westmoreland officials to count those ballots.

“It’s really a contrived constitutional argument. They asked them not to count the votes in Westmoreland County,” Levine said of the Ziccarelli campaign.

Westmoreland County is not a party to the federal lawsuit. The Brewster campaign did not file a court challenge to Westmoreland County’s Republican commissioners’ refusal to consider counting the questioned ballots.

Westmoreland County Commissioner Sean Kertes said there are no plans to reconsider the county’s decision.

“We need to see a court order,” Kertes said. “We’re not reviewing anything until a judge says Westmoreland County needs to do something.”