The Allegheny County Board of Elections certified the results of the Nov. 3 election in 2-1 vote Monday morning, but excluded some ballots that are part of pending litigation.

County Councilman Sam DeMarco cast the lone “no” vote. Allegheny County Executive Rich Fitzgerald, the board chair, and county Councilwoman Bethany Hallam voted to certify the results.

Not included in the certification are 2,507 ballots that are the subject of various pending lawsuits. Those include:

254 provisional ballots that have been challenged. 326 mail-in or absentee ballots including the 45th Senatorial District race that were received without a date on the outer envelope. 1,196 mail-in or absentee ballots not including the 45th District race that were received without a date on the outer envelope. 708 mail-in or absentee ballots with a postmark that arrived after 8 p.m. Nov. 3 and before 5 p.m. Nov. 6. 23 mail-in or absentee ballots without a postmark that arrived after 8p.m. Nov. 3 and before 5 p.m. Nov. 6.

If the final ruling in those pending lawsuits determines the ballots in question should be counted, the board will reconvene to certify those results.

DeMarco said he voted against the certification as a “protest vote,” not because he questions the integrity of the election and its results.

“I’m not claiming fraud, I’m not claiming the results would in any way change,” he said. “I’m bringing attention to a broken and flawed process that needs to be addressed going forward.”

He took issue with the way in which policies were decided, including poll watchers not being permitted in satellite voting offices and disallowing ballot challenges based solely on signatures. That coupled with existing challenges – anticipating high turnout, dealing with paper ballots and new voting machines – resulted in a process that he said was enveloped in chaos and needs to be changed.

He pointed to the mail-in ballots that arrived in mailing envelopes not dated by the voter. The Board of Elections voted to count those ballots, but DeMarco voted against the move. The ongoing battle over those now moves to the state Supreme Court.

“I believe in the letter of the law,” he said, noting that the Election Code, as written, should disqualify those and other ballots missing certain pieces of information.

“I’m not claiming any sort of fraud or impropriety,” he said. “I’m talking about chaos in a system that needs to be tightened.”

The Board of Elections initially voted to count the undated mail-in and absentee ballots, of which there are just over 2,300. That vote passed earlier this month 2 to 1, with DeMarco casting the “no” vote.

Republican state Senate candidate Nicole Ziccarelli appealed the decision to Allegheny County Court of Common Pleas, asking that those mail-in ballots be thrown out, along with about 250 provisional ballots that were challenged.

Ziccarelli, a New Kensington attorney, is challenging incumbent state Sen. Jim Brewster in the 45th Senatorial District. The district includes parts of Allegheny and Westmoreland counties, including municipalities in the Alle-Kiski and Mon valleys.

A county judged denied Ziccarelli’s petitions, but a Commonwealth Court judge on appeal ordered the Board of Elections to hold off on counting the disputed mail-in ballots.

Under state law, county boards of elections must certify their results by the third Monday after the election.

The state Elections Code dictates that each county have a Board of Elections made up of three members of the county’s council. It must include a member from both the majority and minority parties, according to the law, though counties that have a home rule charter can change that setup.

In Allegheny County, the board is made up of the county executive – in this case, Fitzgerald – and council’s two at-large members.

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