The fate of a state Senate seat in the Pittsburgh area remains in limbo even after the chamber started a new session Tuesday.
Republicans refused to swear in McKeesport Democrat Jim Brewster pending a court challenge from his November election opponent, Nicole Ziccarelli. But it is unclear when a ruling by U.S. District Judge Nicholas Ranjan will be forthcoming, or how senators in either party will react to it.
Brewster beat Ziccarelli, a Lower Burrell Republican, in the race for Senate District 45 by just 69 votes, according to state-certified returns. Key to the three-term incumbent’s victory was a batch of mail-in ballots that were cast on time in Allegheny County but without a handwritten date on an outer envelope. (The ballots were time-stamped upon their arrival at the county's election office, demonstrating that they had been received in time.) Without those ballots, Republicans say, Ziccarelli would have prevailed by 24 votes.
Ziccarelli sued in November to toss out the undated ballots, saying the law as written required them to be dated. But Brewster noted that the state’s highest court has already said the ballots should be counted.
“I mean, the Supreme Court has ruled twice to count the votes in question,” Brewster said, alluding to the justices’ November decision to reject an initial appeal from Ziccarelli as well as her subsequent request for reconsideration.
Now, Ranjan is reviewing the matter in the federal district court for Western Pennsylvania, with attorneys’ briefs due by Friday.
“And based on that decision,” Brewster said. “We’ll figure out where we’re going from there. We could be back here in a week getting sworn in – that’s my hope.”
The 45th District includes parts of Allegheny and Westmoreland counties, but Westmoreland did not include undated ballots in its count. In the federal lawsuit pending before Ranjan, Ziccarelli contends that the different treatment of voters across counties violates voters’ constitutional rights to equal protection and due process. State election officials counter that the cure for that would be to require Westmoreland to count its undated ballots as well – a remedy Ziccarelli has not sought. Most mail-in ballots were cast for Democrats this past fall.
In November, Judge Ranjan denied a request from Ziccarelli to stop the undated ballots from being certified. And in October, he dismissed an attempt by the Trump campaign to block ballot drop boxes and other state voting procedures. Democrats argue that Ranjan lacks jurisdiction to overturn the Pennsylvania Supreme Court’s decision in Ziccarelli’s case.
Zicarrelli, however, has sought recourse outside of the judiciary, too. In a roughly 500-page complaint filed with the Senate on New Years Day, she asked the chamber itself to throw out the disputed votes.
On Tuesday, Senate Democratic Leader Jay Costa faulted Ziccarelli for not submitting her complaint on time. He further argued that Senate rules and state election law require 20 district voters to join Ziccarelli in her complaint and pursue it in a local court.
He urged his colleagues to seat Brewster Tuesday. By refusing to do so, Costa said, Republicans have essentially denied “the validity of the results of the election as were certified by the secretary of this state.”
But on Monday, President Pro Tempore Jake Corman, the Senate’s highest-ranking Republican, said his caucus simply wanted to take time to review the matter, which he described as a “fairly unique, if not unprecedented situation." He did not say whether a ruling from the federal bench will resolve the matter.
The conflict sparked chaos on the Senate floor Tuesday. After Democratic Lt. Gov. Fetterman insisted that Brewster be seated, Republicans voted to remove him from presiding over the chamber. But Fetterman refused to step down and shouted over Corman, who replaced him as presiding officer.
“There is nothing about this day that is appropriate. Nothing. And we will not lay down and roll over,” Fetterman cried from the rostrum as Corman proceeded with swearing-in day ceremonies. “This is about protecting our democracy.”
At times, jeers emanated from the gallery, but Corman and legislative staffers largely ignored the heckling.
In a statement, Democratic Gov. Tom Wolf condemned Republicans’ actions as “simply unethical and undemocratic,” noting that they were indefinitely leaving the 45th District without Senate representation.
“All ballots were counted and certified, and the results are accurate,” Wolf said. “Sen. Brewster received the most votes in this race and should be sworn in as the Senator for the 45th District. There is no precedent, and no legal rationale, for failing to do so.”
But the chair of Republican Committee of Allegheny County, Sam DeMarco, countered in his own statement that Ziccarelli was correct to challenge the county’s decision to count “illegal ballots.” And he hailed Corman’s decision “to give the entire Senate the opportunity to review both Ziccarelli’s and Brewster’s” claims.
The Pennsylvania Constitution gives Senators the “authority to ‘judge … the election and qualifications of its members,’” DeMarco wrote, although Democrats argue that provision concerns age and residency requirements for holding office.
Regardless, Brewster said he remains optimistic that he will ultimately be sworn in. “I believe this will be rectified in due time and [that] this will just be a bad memory for a lot of people,” he said.
Sam Dunklau contributed to this report.