Federal Judge Upholds Brewster’s State Senate Win, GOP to Stop Blocking Him

Democratic state Sen. Jim Brewster beat Republican Nicole Ziccarelli by just 69 votes in the race for the 45th state Senate District seat.

HARRISBURG — Republicans who control Pennsylvania’s state Senate said they will stop blocking a Democrat from taking his seat in the chamber after his unsuccessful GOP challenger lost another bid in court Tuesday to overturn the results of the close race.

US District Judge J. Nicholas Ranjan was under pressure to settle a fight that spilled onto the floor of the state Senate last week when majority Republicans refused to let Democratic state Sen. Jim Brewster of Allegheny County be sworn in.

Democrats hailed Ranjan’s decision, and called on Republicans to immediately seat Brewster. Senate President Pro Tempore Jake Corman, R-Centre, said in a one-sentence statement on Twitter that the Senate will return to session Wednesday to swear in Brewster.

Ranjan rejected the argument by Republican challenger Nicole Ziccarelli that Allegheny County’s decision to count mail-in ballots that lacked a handwritten date—and state court decisions allowing it to count them—violated her rights and the rights of voters.

Those ballots helped deliver a 69-vote victory to Brewster for a seat that also includes a portion of Westmoreland County, which did not count a similar number of ballots that lacked a handwritten date.

Without those ballots, Ziccarelli would have won by 24 votes, her lawyers said.

Last week, Democrats began shouting at Republicans on the Senate floor when majority Republicans prevented Brewster from being sworn in with other newly elected or reelected senators. Democrats accused Republicans of a naked power grab, abusing their power and of mimicking President Donald Trump in trying to steal an election from voters.

Many Republicans in the state Legislature had urged Congress to block Pennsylvania’s electoral votes from being certified for President-elect Joe Biden. Many also amplified baseless theories about fraudsters stealing the election from Trump or about state judges and officials breaking election laws.

Senate Republicans, who control the Senate, had maintained that they have the ultimate legal authority over deciding who will take the Senate seat, regardless of a certified election result or court decisions upholding it. They had said they wanted to wait to see what the federal judge decided in Ziccarelli’s lawsuit.

Ziccarelli said in a statement that she will not appeal.

The result does not change the balance of power in the Senate, where Republicans hold 28 of the chamber’s 50 seats.

The legal dispute centered on whether Allegheny County should have counted 311 mail-in ballots from legal, eligible voters that came in without a handwritten date on the ballot envelope.

A 2019 law vastly expanding mail-in voting says the voter shall “fill out, date and sign” a declaration on the outside envelope, although it does not say that leaving off a date automatically disqualifies a ballot. Pennsylvania mail-in ballot envelopes, if mailed, are postmarked and time-stamped upon arriving at county elections offices.

Ahead of the election, Gov. Tom Wolf’s administration had counseled counties not to count such ballots under the law.

Ziccarelli sued Allegheny County, but the state Supreme Court upheld the county’s decision in a 4-3 ruling. Ranjan refused to dispute the court’s ruling—despite Ziccarelli’s urging—and said it is binding on federal courts and nullifies Ziccarelli’s arguments that Allegheny County was wrong to count the ballots.

The deciding vote came from Democrat David Wecht, who decided that the ballots should count in this past election, if not in future elections.

He wrote that a date is clearly required, but it might not have been clear to voters under a new law with ambiguous wording, questionable voter education about the consequences and a lack of precedent.

Brewster is a former mayor of McKeesport, while Ziccarelli is a lawyer from New Kensington.