Westmoreland judge tosses more than 200 ballots elections board wanted counted

A Westmoreland County judge ruled Monday that 46 provisional ballots be counted after voters provided testimony to the board of elections that they did not vote on machines at their polling places despite signing a poll book.

But another 204 ballots must be tossed out because the board didn’t do enough to determine if they belonged to voters who experienced the same issue, Judge Harry Smail ruled. He said the county commissioners, who sit as the elections board, “abused their discretion” in approving all of the ballots and should have contacted the other 204 voters. The commissioners determined that poll workers across the county were improperly trained and erroneously directed voters to sign poll books.

“The statute makes plain that these are decisions to be made on an individual, ballot-by-ballot, voter-by-voter basis,” Smail said in his ruling.

The order came after lawyers for Nicole Ziccarelli, a Republican candidate for state Senate, challenged the legality of more than 400 ballots cast in Allegheny and Westmoreland counties. The 45th District straddles parts of both counties. Each ballot in the tight race between Ziccarelli and Democratic incumbent Sen. Jim Brewster is being scrutinized as the campaigns look to the courts.

Attorneys for the campaigns believe 26 or 27 of those 46 ballots approved by Smail are from voters in the 45th District.

“Indeed, the nonchalant manner in which the board dismissed its responsibilities to the electorate shocks the conscience of this court,” Smail wrote. “While the court is loathe to impose the consequences of a failure of the board onto an innocent electorate, as well as the two candidates…, the court must apply the provisions of the Election Code consistently as written by our Legislature.”

Smail also ruled that 12 provisional ballots that were submitted without a secrecy envelope — three in a Lower Burrell precinct and the others in Derry Township — should all be tossed. Ziccarelli’s attorneys argued that the ballots should all be treated the same after the ones from Lower Burrell were rejected by the elections board but those from Derry Township were approved, according to court filings.

Smail on Monday ordered 17 additional provisional ballots from voters in the 45th District be counted, rejecting an argument from Brewster’s campaign that sought to exclude six of them because they weren’t in secrecy envelopes. Attorney Marco Attisano said those six should be treated the same as the 12 Smail ruled on earlier in the day. Smail said the appeal period for those six had lapsed in denying Attisano’s motion.

The county election board certified results of the Nov. 3 election late Monday afternoon, except for the Ziccarelli-Brewster race and about 600 other ballots that are are the subject of legal challenges, said county solicitor Melissa Guiddy. That includes 70 late ballots in the 45th District, 40 for Ziccarelli and 30 for Brewster, and others that were involved in court rulings Monday.

The county elections board on Monday morning went through dozens of ballots that had either markings on the envelopes or lacked a secrecy envelope. There were 10 approved by the board in the 45th District. Attorneys for both campaigns were permitted to examine those envelopes during the board meeting.

Attorney Shohin Vance, representing Ziccarelli, argued in court Monday that one of those 10 ballots should be thrown out because the voter included a letter in the envelope.

The letter indicated support for Democratic candidates, which Attisano argued showed an attempt to strike a potential vote against Ziccarelli.

“They’re asking you to disenfranchise this voter because they think the voter didn’t vote for their candidate,” Attisano said.

Allegheny County certified its election results Monday, except for 2,507 ballots that are subject to various legal challenges. That includes 326 mail-in or absentee ballots in the 45th District that were received without a date on the outer envelope.