The election results in Pennsylvania are fake, but that’s not stopping the state from rushing to approve them.
The Pennsylvania Commonwealth Court on Thursday evening ordered that 2,349 undated mail-in ballots in Allegheny County not be counted as part of an appeal by the Republican challenger for the 45th Senatorial District seat.
But the order — and the one the court issued to stay the vote count Wednesday evening — apparently came too late.
Allegheny County elections officials already counted those ballots on Wednesday — after they received the go-ahead from Common Pleas Judge Joseph James, who ruled in their favor earlier in the day.
Although the ballots have been counted, they have been set aside, and the results have not yet been added into the vote totals for the candidates.
A note on the elections results website shows that out of the undated mail-in ballots, 310 were cast in the 45th district race. Of those, 202 were cast for incumbent Democratic Sen. Jim Brewster. Republican challenger Nicole Ziccarelli, who filed the Commonwealth Court appeal to halt the count, received 108.
Without those numbers being added in, the two candidates, late on Thursday, were tied in the race that includes parts of Allegheny and Westmoreland counties, including the Alle-Kiski and Mon valleys.
It does not appear from Commonwealth Court Judge P. Kevin Brobson’s opinion that the court knew the Alleghenhy County ballots had already been counted.
In the 13-page opinion, Brobson wrote that the undated ballots should not be counted because they failed to meet all of the requirements under the state Election Code.
“It is a myth that all ballots must be counted in the absence of proof of fraud,” Brobson wrote. “Ballots, under the law may be set aside for ‘fraud or error.’”
In a 2-1 decision, Brobson, joined by Judge Patricia A. McCullough, said it is not the role of the county election board to accept votes that have not been properly filled out.
Ziccarelli, who was trailing Brewster, D-McKeesport, by 28 votes earlier Thursday night, pulled into a tie as more mail-in and provisional ballots votes were counted in Westmoreland County, according to unofficial returns.
Ziccarelli also has asked the court to halt the counting of about 250 provisional ballots that were subject to another challenge she lost Wednesday in Allegheny County Common Pleas Court. Her campaign has other legal challenges pending there. The county’s website shows that the provisional ballots have not yet been counted.
Ziccarelli’s attorney, Matthew Haverstick, argued first to Allegheny County Common Pleas Judge Joseph James on Tuesday that the mail-in ballots, which the county election board voted 2-1 to accept, were missing the voter-provided date. The provisional ballots were missing one of two required signatures.
James ruled in favor of the county, writing in his two opinions Wednesday the law is to be construed in favor of ensuring the citizens’ right to vote, and the errors were minor and technical in nature.
But in his brief submitted Thursday on the mail-in ballots, Haverstick wrote, “The Election Code sets forth a mandatory requirement that mail-in ballots be both signed and dated.”
The date on the ballot, Ziccarelli’s attorney argued, is essential to ensuring the voter is a qualified elector on the date the ballot is filled out.
“Above all else, the Supreme Court has already held that mail-in ballots with undated declarations are not ‘sufficient’ and, thus, must be set aside,” Haverstick wrote.
Citing the court’s previous ruling from September, he said, “sufficiency of a mail-in ballot is predicated on three factors, each of which must be satisfied.”
Those are: a completed voter declaration, a date and signature.
An undated mail-in ballot is “per se” invalid, Haverstick said, and must be set aside.
The majority of the Commonwealth Court agreed, quoting September’s state Supreme Court decision.
Brobson wrote that he presumes county elections boards were aware of it.
“The elections board chose, nonetheless, to ignore its obligations under the election code to determine the sufficiency of the mail-in and absentee ballots at issue … ,” he wrote. “Where the elections board tacitly derived its authority to ignore its statutory obligation to determine the sufficiency of ballots and to violate the will of the general assembly … is a mystery.”
Brobson went on to say it is the responsibility of the Legislature to set the time, place and manner of elections.
“It is not the judiciary’s role, let alone the role of the elections board, to relax or ignore requirements that the general assembly, with the governor’s approval, chose to include in the election code,” Brobson wrote. “We do not enfranchise voters by absolving them of their responsibility to execute their ballots in accordance with law.
“The danger to our democracy is not that electors who failed to follow the law in casting their ballots will have their ballots set aside due to their own error; rather, the real danger is leaving it to each county board of election to decide what laws much be followed (mandatory) and what laws are optional (directory), providing a patchwork of unwritten and arbitrary rules that will have some defective ballots counted and other discarded, depending on the county in which a voter resides,” Brobson wrote.
But Commonwealth Court Judge Michael H. Wojcik wrote in a dissenting opinion, that he would “not blithely disenfranchise those 2,349 voters.”
He posited that the majority was misinterpreting the earlier state Supreme Court decision, which he wrote was about a voter’s ability to cure a “minor” defect on a mail-in ballot.
“In contrast, this case involves neither a voter’s ability to cure a defective declaration page nor an unsigned declaration page,” Wojcik wrote. “Moreover, as noted above, this case does not involve any claim that any of the ballots in question were in any way fraudulent.”
Instead, Wojcik said, all of the voters who cast the 2,349 mail-in ballots were qualified, registered electors.
He agreed with attorneys for the county election board that because the ballots were time stamped when received by the elections division and processed in the state system, there is proof the ballots were timely cast.
“By its express terms, the Election Code requires that a declaration be ‘sufficient’ — not perfect,” the county wrote. “As a matter of law, a mail-in ballot that contains a signed declaration is ‘sufficient’ and must therefore be counted, even if the declaration is missing a written date by the elector.”
The county also argued Ziccarelli does not have standing to bring a challenge because she failed to plead how the board’s decision to count the mail-in ballots has harmed her.
“It is beyond dispute that she does not have standing to challenge those ballots, and the challenge to them should be withdrawn immediately so the Allegheny County Board of Elections can proceed with counting them,” the county’s attorneys wrote.
Not counting the ballots actually will provide Ziccarelli no relief, they continued. She is losing, the county said, by 30 votes, and if the mail-in ballots are not counted, she still will be losing by 30 votes.
The county argued the date provision in the election code is “directory not mandatory.”
It called Ziccarelli’s attempt to equate her current case with the September Supreme Court case “misplaced.”
Relative to the provisional ballots that were missing one signature, the county previously argued that mistake was caused by poll workers who failed to advise the voters properly in filling out their provisional ballots.