Pa. Supreme Court says undated mail-in ballots in Nicole Ziccarelli case can be counted - TribLIVE

The Pennsylvania Supreme Court Monday afternoon ruled that 2,349 undated mail-in ballots in Allegheny County can be counted in the state’s election results — dashing a challenge by 45th senatorial district candidate Nicole Ziccarelli.

The court’s 35-page opinion also clears the way for 8,329 mail-in ballots in Philadelphia County that were missing a handwritten name, address or date on the mailing envelope, and challenged by the Trump campaign, to also be counted.

“Here we conclude that while failures to include a handwritten name, address or date in the voter declaration on the back of the outer envelope, while constituting technical violations of the Election Code, do not warrant the wholesale disenfranchisement of thousands of Pennsylvania voters,” wrote Justice Christine Donohue.

The court was split on the issue. The majority opinion 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.

The dissenting opinions argued that a ballot without a date does not meet the requirements of the Election Code and should be thrown out.

Ziccarelli’s attorney, Matt Haverstick, said he is asking the court for reconsideration and “asking for an explanation of how a majority of the justices can agree we’re right on the law and yet still count those ballots.”

The court found that the state’s Election Code does not require county boards of election to disqualify mail-in ballots for minor technicalities, such as a missing handwritten name, address or date, as long as no fraud has been alleged.

Ziccarelli, who is running in a very tight race against Democratic incumbent Sen. Jim Brewster, had challenged the undated ballots, alleging that they failed to meet the requirements laid out in the Election Code to be counted.

However, in its opinion — which reverses a Commonwealth Court decision on the matter — the majority of the Supreme Court said that the missing signature does not amount to what would be considered a “weighty interest.”

Failures to include handwritten names and addresses are a “minor irregularity” and “at worst, entirely immaterial,” the court wrote.

The majority opinion found that when passing the state’s mail-in voting law, the general assembly delegated to the secretary of the commonwealth the form the declaration and envelopes would take.

“Since the General Assembly did not choose the information to be provided, its omission is merely a technical defect and does not invalidate the ballot,” the court wrote.

Ziccarelli’s attorney argued that the date was required on the mail-in ballot’s mailing envelope to ensure the voter was qualified.

However, the court noted that when mail-in ballots are received, they are time-stamped by the elections board.

“The date that the declaration is signed is irrelevant to a board of elections’ comparison of the voter declaration to the applicable voter list, and a board can reasonably determine that a voter’s declaration is sufficient even without the date of signature,” the court wrote. “Every one of the 8,329 ballots challenged in Philadelphia County, as well as all of the 2,349 ballots at issue in Allegheny County, were received by the boards of elections by 8 p.m. on Election Day, so there is no danger that any of these ballots was untimely or fraudulently back-dated.”

Donohue wrote that the state’s online database records the time received.

“The date stamp and the SURE system provide a clear and objective indicator of timeliness, making any handwritten date unnecessary and, indeed, superfluous,” the opinion said.

In their finding, the court wrote that it has long been part of Pennsylvania’s jurisprudence that “the use of ‘shall’ in a statute is not always indicative of a mandatory directive; in some instances, it is to be interpreted as merely directory.”

However, in his concurring and dissenting opinion, Justice David Wecht wrote that the Election Code is clear, “requiring that ‘the elector shall … fill out, date and sign the declaration.’”

“Shall,” he wrote, should be considered to be mandatory in this instance and not directory.

Both Wecht and Dougherty said they agree that a ballot should not be set aside for failing to include a printed name or address on the declaration form.

But the lack of a date, Wecht wrote, should not be viewed as a “minor irregularity.”

He believes that the Election Code requires a date and signature, and moving forward, said any ballot without those should not be counted.

Dougherty, in his concurring and dissenting opinion, said he does not agree with the majority that failure to date the declaration “does not carry ‘weight interests.’ ”

“The meaning of the terms ‘date’ and ‘sign’ — which were included by the legislature — are self-evident, they are not subject to interpretation, and the statutory language expressly requires that the elector provide them,” he wrote. “I do not view the absence of a date as a mere technical insufficiency we may overlook.”

According to online election results in Allegheny and Westmoreland counties, Brewster was leading by one vote before the undated ballots were counted. Allegheny County’s election website said that only 310 of those ballots applied to the 45th district race, and Brewster was winning those by 94 votes.

Paula Reed Ward is a Tribune-Review staff writer. You can contact Paula by email at pward@triblive.com or via Twitter .

Categories: Allegheny | Election | Local | Top Stories