Plaintiff Nicole Ziccarelli is a candidate for Pennsylvania State Senate. Pennsylvania law is very specific about the process by which mail-in ballots are completed by the voter and canvassed (the process by which the ballots are received, reviewed, and tabulated) by the Board of Elections. Plaintiff argued that the Board of Elections should not have counted 2,349 mail-in ballots in Allegheny County because they were undated. She asked to have these votes set aside and excluded from the certification of county votes.
The Court denied Ziccarelli’s request. According to the Court, and the Defendant, interpretation of Pennsylvania Election law should be liberally construed in favor of the voter. In other words, a “minor” departure from long-standing and clear guidelines should be ignored in an attempt to count as many votes as possible. The Court (incorrectly) interpreted the Pennsylvania Code, “[t]he elector shall then fill out, date and sign the declaration printed on such [return] envelope” to mean these steps were not mandatory. The Court affirmed the Board of Election’s decision to certify these undated ballots. Plaintiff Ziccarelli appealed to the Pennsylvania Commonwealth Court.
The Commonwealth Court reversed the lower court’s ruling and sent the case back for further proceedings in line with the order. Judge Brobson noted that the purpose of canvassing is to determine if a ballot is sufficiently verified. Citing a Pennsylvania Supreme Court case – In re November 3 General Election – it pointed out that the determination of sufficiency requires the county elections board to ascertain whether the declaration on the return envelope has been filled out, dated, and signed. “While we realize that our decision in this case means that some votes will not be counted, the decision is grounded in law. It ensures that the votes will not be counted because the votes are invalid as a matter of law. Such adherence to law ensures equal elections throughout the Commonwealth, on terms set by the General Assembly.” The 2,349 votes must be excluded from certification.
On appeal to the Pennsylvania Supreme Court, Judge Donohue consolidated five cases and affirmed the lower court’s decision not to count the ballots. He held that the Pennsylvania Election Code does not the disqualification of mail-in or absentee ballots when they are submitted by qualified electors with signed declarations on their ballot’s outer envelope even if they failed to meet certain statutory technical requirements such as handwriting their name, their address, and/or date, in the absence of alleged fraud.