A federal judge has ruled in favor of Democrats in a close, hotly contested Pa. state Senate race that caused an uproar in the Capitol last week when the GOP refused to seat Sen. Jim Brewster.
Republican Nicole Ziccarelli had argued that she won the 45th state Senate District election because the result hinged on several dozen mail ballots that didn’t have dates. She tried to make a case that because the two counties that comprise the 45th District had handled undated ballots differently, her rights to equal protection and due process had been violated.
Her arguments had already been thrown out by the Pa. Supreme Court, and Brewster’s 69-vote victory had been certified by the Department of State. And in his decision, United States District Judge Nicholas Ranjan, who was appointed by President Donald Trump, said her federal case doesn’t have merit, either.
“The Supreme Court expressly held that the undated ballots at issue remain valid ballots that are properly counted under state law,” he wrote. “Thus, because Ms. Ziccarelli’s federal constitutional claims all depend on the invalidity of the ballots under state law, those claims necessarily fail on the merits.”
Hours after the 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.”
Tuesday afternoon Senate President Pro Tempore Jake Corman tweeted that “the Senate will return to session at 11 am tomorrow to swear in” Brewster.
The federal decision comes after a bitter fight between Senate Republicans and Democrats over the moderate, Western Pennsylvania swing district.
Republicans, who hold a majority in the Senate with or without the race, had argued that they’d been mistreated by Pa. Secretary of State Kathy Boockvar and a Democratic-majority state Supreme Court.
Democrats had argued that Republicans were taking a page out of Trump’s book and, as Democratic chamber leader Jay Costa said, launching a “quest to steal the 45th district.”
The conflict came to a head last week when senators were sworn in. Republicans declared they would delay seating Brewster until the court ruled and they reviewed petitions the candidates had filed to the Senate. Lt. Gov. John Fetterman attempted to ignore Republicans’ motions and seat Brewster anyway, and the session turned into a shouting match. Brewster, who was on the floor, made the call to defer to Republicans and remain at least temporarily unseated.
GOP had planned to be arbiters
Adding to the tension, Republicans began laying the groundwork for what Costa called “an election insurrection [that] is inching Pennsylvania toward authoritarianism.”
Chamber leaders never explicitly explained their plan, but several comments and procedural actions by leaders indicated that they were seriously considering deciding the election themselves — votes and court decisions aside.
Senate President Pro Tempore Jake Corman said as much in a series of posts on Twitter late Friday evening.
“There should be no dispute that the Senate is the ultimate authority of the election and who meets the qualifications to be seated,” he wrote. “Our plan is to let the federal district case play out and ultimately seat whoever is successful in that process as long as the findings from the court are to the merit of the challenge and the validity of the disputed ballots & not based on the lack of federal court jurisdiction.”
Corman and the rest of the Senate had based their argument for potentially determining the results of the race on Article II Section 9 of Pennsylvania’s constitution, which allows lawmakers to object to seating a lawmaker if they believe that person hasn’t met the criteria for holding office.
The state House and Senate, it says, “shall judge of the election and qualifications of its members.”
In last week’s heated Senate session, during which Republicans refused to seat Brewster while swearing in the rest of the new members, the chamber also voted on party lines to consider a petition Ziccarelli had filed urging them to seat her, along with Brewster’s response. It was another move that could have set the stage for the Senate to be the arbiter in the election.
In his rejection of Republicans’ argument, Judge Ranjan specifically said his decision was based on the merits of the case. Because of that, it appears Republicans may have no further path toward seating Ziccarelli, barring legal appeals.
Ranjan based his ruling predominantly on the fact that the state Supreme Court had already decided undated mail ballots were acceptable, and that Ziccarelli had not given him enough reason to overturn that decision.
“To grant Ms. Ziccarelli the relief she seeks, the Court would be required to tell a state supreme court that, based on its reasoning, the judgment it entered was erroneous,” Ranjan wrote.
He said that wasn’t possible because of a legal doctrine that says federal courts — other than the U.S. Supreme Court — generally can’t review, or essentially overturn, state court decisions.
“Ms. Ziccarelli was the plaintiff in the state court proceedings; she lost; and the Supreme Court’s judgment was issued before this case was filed,” Ranjan concluded.
Ziccarelli can still appeal the decision, but her attorneys have not yet said whether they will. Likewise, Senate GOP leaders have not yet responded to requests for comment on their plans going forward.
A question of ‘unequal treatment’
At the heart of the 45th District case is a discrepancy between the two counties it spans: Allegheny County decided to count mail ballots that didn’t have dates, and Westmorland officials chose not to.
Those ballots were the deciding factor in the race. If undated mail ballots are counted, Brewster wins. If they aren’t, Ziccarelli has a 20 vote lead.
Republican’s federal court case — on which GOP House and Senate leaders filed amicus briefs in support of Ziccarelli — was similar to the one that failed on the state level.
It asked for 311 mail ballots with missing dates to be thrown out — but this time, her attorneys argued that differences in the ways counties handled those ballots constituted a violation of equal protection — a clause of the 14th Amendment that requires similarly situated people to be treated alike.
The Pennsylvania constitution says that when filling out mail ballots, voters “shall … fill out, date and sign” them.
Early in the election process, Secretary Boockvar advised counties to throw out ballots that were missing dates. She later changed that guidance and said the ballots should be counted, pending court approval, which was granted by the state Supreme Court.
“The unequal treatment across counties of ballots with the same defect dilutes the power of the vote constitutes a substantive due process and equal protection violation,” Ziccarelli’s attorneys argued in their federal filing.
There appears to be no recent precedent for the approach Senate Republicans were considering taking to fill the 45th Senate District.
The closest comparison to which Corman has pointed is a 1993 case, in which a Democrat appeared to win a close Philadelphia race, was quickly confirmed by the Department of State and seated, and then a federal judge ruled that the candidate had committed election fraud using questionable absentee ballots.
The chamber ousted the convicted candidate and installed the Republican who had been his opponent in the seat instead.
“They did it fast, they didn’t do it right,” Corman said in a video on Twitter last week. “We would like to get it right, not fast.”
After Ranjan issued his decision, Senate Democrats released a celebratory statement, and also took pains to highlight the fact that Ranjan had said Republicans’ case failed “on the merits.”
“Today we can celebrate Jim Brewster’s win, but the real winner is democracy,” Costa said.
WESA’s An-Li Herring contributed reporting.
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