The Republican challenger in the 45th Senatorial District that includes parts of Allegheny and Westmoreland counties has asked the state Supreme Court to reconsider its Monday order allowing undated mail-in ballots to be counted.
Nicole Ziccarelli, of Lower Burrell, filed an emergency application for reargument Tuesday morning. She is running in the race against Democratic incumbent Sen. Jim Brewster.
As of late Tuesday morning, Ziccarelli was leading by four votes, according to online results in the district that includes the Alle-Kiski and Mon valleys. That number, however, still does not include the undated ballots in Allegheny County, which break for Brewster by 94 votes.
On Monday, the state Supreme Court issued a split decision on the issue, with the majority finding that the 2,349 undated mail-in ballots that Ziccarelli challenged ought to be counted.
The court wrote that the missing dates are a technical violation of the Election Code but do not warrant disenfranchising thousands of voters. On the back of the envelope for mail-in ballots, voters are told to write the date, plus their signature, printed name and address.
The majority opinion, written by Justice Christine Donohue, was joined by Justices Max Baer and Debra Todd, with Justice David Wecht concurring in the results. Wecht wrote a concurring and dissenting opinion, as did Justice Kevin Dougherty, in which Chief Justice Tom Saylor and Justice Sally Updyke Mundy joined.
That split is what prompted Ziccarelli’s request for reargument.
Her attorney noted that Wecht, Dougherty, Saylor and Mundy all agreed that the undated ballots were not compliant with the Election Code and therefore are invalid.
“Nevertheless, the court then allowed those ballots to be canvassed and counted, even though a majority of the justices agreed that they were statutorily invalid.”
In his concurring and dissenting opinion, Wecht wrote that in future elections, he would treat the date and signing requirement in the Election Code as mandatory. That means, he wrote, that the omission of either is sufficient to invalidate a ballot.
“However, under the circumstances in which the issue has arisen, I would apply my interpretation only prospectively,” Wecht wrote.