Legal wrangling continues over state Senate seat
Brewster asks court to dismiss Ziccarelli’s case
The Democratic state senator from McKeesport whose electoral victory rests on a federal court case over a few hundred ballots asked the court to dismiss his opponent’s suit Wednesday.
Lawyers for Sen. Jim Brewster and the Pennsylvania Democratic Party argued in a motion that Republican Nicole Ziccarelli’s claims — that Mr. Brewster is not the rightful winner of the race for the 45th Senatorial District — are moot because the state already certified him as the winner, and that Ms. Ziccarelli had “failed to exhaust Election Code procedures to prevent that certification.”
Ms. Ziccarelli, who lost by 69 votes in the November election, is suing Allegheny County’s board of elections over its counting of ballots that were missing dates on their outer declaration envelopes, but were otherwise correct and received on time. She wants the court to toss those ballots, 202 of which went to Mr. Brewster and 108 to herself — enough to flip the race in her direction, hypothetically.
She wants U.S. District Judge J.
Nicholas Ranjan to void Allegheny County’s final tally of her race and to recertify the race without the undated ballots — effectively declaring her the winner. She also wants Mr. Brewster to be prohibited from performing duties as senator or holding himself out as the duly elected senator.
“Here, the 45th Senatorial District results have already been certified,” the Democrats wrote in their filing. “Ms. Ziccarelli did not file an election contest. ... Her claims seeking decertification are moot, and should be dismissed.”
Ms. Ziccarelli makes federal constitutional claims in her case. She contends the county’s tallying of the undated ballots violated equal protection — since similar ballots in Westmoreland County weren’t counted — and that it constituted a due process violation because the votes of her supporters were improperly diluted.
Mr. Brewster countered that the court lacks jurisdiction to overturn a decision of the Pennsylvania Supreme Court, which has upheld the counting of the undated ballots. On the equal protection claim, he noted that Ms. Ziccarelli herself had encouraged the board in Westmoreland County not to count the undated ballots there — making her an active participant in the very allegations she’s pursuing.
Allegheny County’s board, which also asked for a dismissal of the suit Wednesday, argued that it’s entitled to immunity from the claims because it counted the undated ballots pursuant to the state Supreme Court’s order.
And, the county board’s lawyers wrote, Ms. Ziccarelli’s complaint should be tossed because “there is no case or controversy.”
“There is no action remaining that [the county elections board] can be enjoined from committing and no action Ms. Ziccarelli needs to obtain from [the county elections board] in order to obtain relief,” the board’s lawyers wrote, noting that the board had already completed its certification of the election before the Republican filed her suit.
In a brief supporting Ms. Ziccarelli’s lawsuit, Republican leadership in Harrisburg insisted that no county has the power to enact or amend election laws, which — if done in the middle of an election — “can be adjusted to effectuate a partisan outcome — which is exactly what the Allegheny County Board of Elections and the Supreme Court of Pennsylvania did here.”
“Through their procedural gerrymandering, Allegheny County and the Supreme Court of Pennsylvania made a kicked field goal worth five points, when their team was down by four, with no time left on the clock, in order to obtain their desired result,” Senate President Pro Tempore Jake Corman, Senate Majority Leader Kim Ward, House Speaker Bryan Cutler and House Majority Leader Kerry Benninghoff said in their brief.
Final briefs in the suit are due Jan. 8, a few days after senators are to be sworn in.