Democrat Jim Brewster will be sworn in to represent state Senate District 45 on Wednesday morning, a week later than his peers and one day after a federal judge rejected a Republican attempt to toss out mail-in ballots in the race. U.S. District Judge Nicholas Ranjan said that the ballots were valid under a Pennsylvania Supreme Court ruling, and that Republican Nicole Ziccarelli had failed to show why he should declare that decision unconstitutional.
Hours after that ruling, Ziccarelli said she was dropping her court challenge and a related state Senate filing contesting the results. In a statement, she said that while she was "obviously disappointed" in the ruling, "I am asking all of us to come together and support Senator Brewster ... For the best interests of all residents of the 45th, I will not further appeal this decision and will withdraw my contest filed with the Senate."
Following the November election, state-certified returns showed Brewster had defeated Ziccarelli by 69 votes. But Ziccarelli contested the decision of Allegheny County election officials to tally 311 mail-in ballots that lacked a handwritten date on an outer envelope. Although the ballots had been time-stamped as arriving on time, Ziccarelli argued that state law as written required voters themselves to mark the date by hand.
She asked Ranjan to toss out the disputed ballots. Doing so would have given Ziccarelli a 93-vote lead over Brewster, Ranjan said in his opinion.
One of Zicarrelli’s arguments revolved around the fact that the 45th District includes parts of Allegheny and Westmoreland counties – and that, unlike Allegheny, Westmoreland did not include the undated ballots in its count. Ziccarelli argued that the different treatment of voters across counties violated voters’ constitutional right to equal protection.
When the state Supreme Court confronted this issue, Ranjan noted, it ruled that the contested ballots should still be counted even though it had two options: either to “level down” and “order Allegheny County to not count the undated ballots, and disenfranchise certain voters,” or “level up” and require Westmoreland County “to count its undated ballots and enfranchise certain voters.”
Ziccarelli had only sued Allegheny County’s board of elections in the federal suit, and ultimately Ranjan said, he was “bound by the Pennsylvania Supreme Court’s interpretation of … state law – which directly applies to the very ballots at issue here.”
Prior to Ranjan's ruling, Republicans in the GOP-controlled Senate refused to swear in Brewster along with his colleagues who had been up for election in November.
But in a mid-afternoon tweet Tuesday, Corman said, "The Senate will return to session at 11 a.m. tomorrow to swear in" Brewster.
In a statement a short time later, Corman said Senate Republicans believed that "Secretary of State [Kathy] Boockvar was premature in certifying the election" while the dispute was still ongoing. But Ranjan's ruling, Corman added, had "further clarified the proper handling of undated ballots and we will seat Jim Brewster as the Senator for the 45th Pennsylvania Senate District at 11 a.m. tomorrow morning."
Editor's Note: This story was updated at 3:24 p.m. on January 12, 2021 to reflect new statements from Senate Republicans and Nicole Ziccarelli.