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Allegheny Judge Rules 2,349 Mail-In Ballots 'Must Be Counted'

Gene J. Puskar
Ballots are counted at the Allegheny County Election Division warehouse on the Northside of Pittsburgh, Friday, Nov. 6, 2020.

Election workers in Allegheny County will be able to count 2,349 mail-in ballots that were received by Election Day but weren't dated by voters, according to a new court ruling Wednesday. The decision, and a companion ruling about other ballots called into question, could decide the outcome of a hotly contested state Senate race. Republicans filed an appeal later in the day.

After a hearing on Tuesday, Allegheny County Common Pleas Court Judge Joseph James wrote Wednesday that the mail-in ballots in question “must be counted” despite a technical defect, because state law “should be construed liberally in favor of voters.”

The lawsuit was brought by Republican state Senate candidate Nicole Ziccarelli, who trails by roughly 30 votes in a race against Democrat Jim Brewster in the 45th state Senate district. Ziccarelli did not allege that the votes were fraudulent in any way, but argued that undated ballots ran afoul of state requirements and shouldn't count.

Pennsylvania's Election Code states that mail-in ballots must be dated and signed by the voter: The challenged ballots were returned with signatures but without the date. However, the Allegheny County Elections Division timestamped every ballot it received, and the stamps showed that all the ballots were received on or before Election Day.

“[The ballots] were signed and have been otherwise properly completed by a qualified elector,” James wrote. “In light of the fact that there is no fraud, a technical omission on an envelope should not render a ballot invalid. The lack of a written date on an otherwise qualified ballot is a minor technical defect that does not render it deficient.”

Wednesday’s ruling affirmed the Allegheny County Board of Elections’ 2-1 vote last week to count the ballots, though the county held off doing so because it anticipated legal challenges.

In a second court case, Ziccarelli challenged a decision by the Board of Elections to count 300 provisional ballots. Provisional ballots are used at the polls if a voter encounters a problem with voting in-person on Election Day, or if they never received their mail-in ballot. Voters are required to sign their provisional ballots in two different places. The ballots Ziccarelli challenged were signed in one location, but were missing a second signature.

Judge James sided with the Allegheny County Board of Elections’ view that voters should not be penalized for errors or defects caused by election workers. There was no testimony about the guidance poll workers gave to voters in Tuesday's hearing, but election officials said that voters relied on poll workers for instructions on how to complete ballots, and shouldn't be faulted for minor mistakes.

James agreed, and again pointed to state election law, writing that “while we must strictly enforce all provisions to prevent fraud, the overriding concern at all times must be to be flexible in order to favor the right to vote. Our goal must be to enfranchise and not to disenfranchise.”

A lawyer for Ziccarelli said the campaign would appeal the rulings, and indeed Republicans did so within hours.  Ordinarily, an appeal of James' ruling would be handled by the state's Commonwealth Court, but Republicans are seeking an expedited hearing from the state Supreme Court, given the tight timeframe for resolving election outcomes.  

Lucy Perkins is an editor and also reports on federal government and elections for the Government and Accountability team. Before joining the WESA newsroom, she was an NPR producer in Washington, D.C., working on news programs like All Things Considered and Weekend Edition. You can reach her at lperkins@wesa.fm.
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