Case 2:20-cv-01831-NR Document 72 Filed 01/12/21 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA
NICOLE ZICCARELLI, )
)
) 2:20-cv-1831-NR
Plaintiff, )
)
v. )
)
THE ALLEGHENY COUNTY BOARD )
)
OF ELECTIONS, et al., )
Defendants. )
OPINION
J. Nicholas Ranjan, United States District Judge

This lawsuit concerns a hotly contested state senate race between Nicole

Ziccarelli and Jim Brewster, in a district that encompasses parts of both Allegheny

and Westmoreland Counties. After the general election, only a few hundred votes

separate the two candidates, with Mr. Brewster having been certified the winner.

Ms. Ziccarelli, however, argues that 311 mail-in ballots received by Allegheny County

were erroneously counted, and should be thrown out, because the voters who cast

those ballots did not write the date next to their signatures. If those ballots are

thrown out, Ms. Ziccarelli would win the election by 93 votes.

Ms. Ziccarelli’s argument for invalidating the challenged ballots turns on her
interpretation of the Pennsylvania Supreme Court’s decision in a previous lawsuit

she filed, where she sought to have the same ballots deemed invalid for lacking a

date. See In re Canvass of Absentee & Mail-in Ballots of Nov. 3, 2020 Gen. Election,

— A.3d —, No. 29 WAP 2020, 2020 WL 6866415 (Pa. Nov. 23, 2020). Even though a

majority of the Supreme Court, in that decision, ultimately determined that

Allegheny County could count the undated ballots in this election, she interprets the

decision to mean that those ballots are invalid under Pennsylvania’s election code.

She further alleges that, by counting undated ballots that violate the election code,

Allegheny County (and then, by certifying the results, Secretary Boockvar) violated
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her equal-protection and due-process rights. That is because, while Allegheny

County counted undated ballots, Westmoreland County did not. Ms. Ziccarelli

contends that this amounts to arbitrary, unequal treatment in violation of the equal-

protection principle announced in Bush v. Gore, 531 U.S. 98 (2000).

After a careful review of the parties’ cross-motions for summary judgment, the

Court disagrees with Ms. Ziccarelli’s positions. The Court’s fundamental

disagreement is with Ms. Ziccarelli’s interpretation of the Pennsylvania Supreme

Court’s decision. Contrary to Ms. Ziccarelli’s reading, the Court finds that the

Supreme Court expressly held that the undated ballots at issue remain valid ballots

that are properly counted under state law. Thus, because Ms. Ziccarelli’s federal

constitutional claims all depend on the invalidity of the ballots under state law, those

claims necessarily fail on the merits. That is, even if applying disparate counting

standards in Allegheny and Westmoreland Counties creates an equal-protection

concern, the validity of the challenged ballots forecloses any argument that Allegheny

County is responsible for that violation, or that the Court could throw out Allegheny

County’s ballots as a remedy. For these reasons, discussed in full below, the Court

will grant Defendants’ and Intervenors’ motions for summary judgment.1

LEGAL STANDARD

Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). At summary judgment, the Court must ask

whether the evidence presents a “sufficient disagreement to require submission to

the jury or whether it is so one-sided that one party must prevail as a matter of law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). In making that

1Because the Court writes primarily for the benefit of the parties and given the time-
sensitive nature of this case, the Court dispenses with a recitation of the factual
background here. Instead, the Court adopts the parties’ comprehensive and well-
written stipulation of undisputed, material facts as if fully set forth herein. ECF 45.
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determination, the Court must “consider all evidence in the light most favorable to

the party opposing the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d

Cir. 2007).

The summary-judgment stage “is essentially ‘put up or shut up’ time for the

non-moving party,” which “must rebut the motion with facts in the record and cannot

rest solely on assertions made in the pleadings, legal memoranda, or oral argument.”

Berckeley Inv. Grp. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006). If the non-moving

party “fails to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden at trial,”

summary judgment is warranted. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

“The rule is no different where there are cross-motions for summary

judgment.” Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008). The filing of

cross-motions “does not constitute an agreement that if one is rejected the other is

necessarily justified.” Id. But the Court may “resolve cross-motions for summary

judgment concurrently.” Hawkins v. Switchback MX, LLC, 339 F. Supp. 3d 543, 547

(W.D. Pa. 2019) (Conner, J.). When doing so, the Court views the evidence “in the

light most favorable to the non-moving party with respect to each motion.” Id.

DISCUSSION & ANALYSIS 2

I. The Pennsylvania Supreme Court held that the undated ballots
remain valid, and that Allegheny County properly counted them.
After the Allegheny County Board of Elections decided to count the undated

ballots, Ms. Ziccarelli filed a lawsuit in the Allegheny County Court of Common Pleas.

She litigated that matter up to the Pennsylvania Supreme Court. In a November 23,

2020, decision, the Supreme Court held that the undated mail-in ballots remained

2Defendants raise a bevy of procedural defenses, such as standing and mootness. See
generally ECF 53; ECF 57; ECF 59. The Court finds that these defenses are no bar
to Ms. Ziccarelli’s claims, for substantially the same reasons stated in Ms. Ziccarelli’s
reply brief. ECF 65.

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valid, and thus that it was proper for the Allegheny County Board of Elections to

count them. See In re Canvass of Absentee & Mail-in Ballots of Nov. 3, 2020 Gen.

Election, — A.3d —, No. 29 WAP 2020, 2020 WL 6866415, at *16 (Pa. Nov. 23, 2020).

The issue before the Supreme Court was not whether the election code requires

voters to date their ballots (it does), but whether the date requirement, found in 25

P.S. §§ 3150.16(a) and 3146.6(a), was “directory” or “mandatory.” See In re Nov. 3,

2020 Gen. Election, 2020 WL 6866415, at *14. In short, if the date requirement was

“directory,” then an undated ballot would still be valid, and could be counted, despite

its technical deficiency. If, instead, the requirement was “mandatory,” an undated

ballot would be invalid and must not be counted. Id. A four-justice majority of the

Pennsylvania Supreme Court held that the ballots were not invalid, and thus that

Allegheny County could properly count them. See id. at *16 (“[W]e conclude that

while failures to include a … 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. … [B]allots

containing mere minor irregularities should only be stricken for compelling reasons.”)

(cleaned up); see also id. (Wecht, J. concurring) (“[D]espite my reservations about the

OAJC's analysis, I concur in its disposition of these consolidated cases.”).

The parties’ dispute over the Supreme Court’s opinion concerns the reasoning

of Justice Wecht’s concurring & dissenting opinion. See id. at *16-24 (Wecht, J.

concurring).3 In his concurrence, Justice Wecht explained that, unlike the three

justices who authored the Opinion Announcing the Judgment of the Court, he would

3Justice Wecht styled his concurrence as a “concurring and dissenting opinion,” but
he did not dissent from any aspect of the Supreme Court’s judgment. Rather, as will
be discussed, he simply expressed different reasoning before joining in the full
“disposition” of the OAJC. See In re Nov. 3, 2020 Gen. Election, 2020 WL 6866415, at
*16 (Wecht, J. concurring) (“[D]espite my reservations about the OAJC’s analysis, I
concur in its disposition of these consolidated cases.”).
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prefer to interpret the date requirement as “mandatory,” rather than “directory,” for

“future elections.” See id. at *16 (Wecht, J. concurring). As such, Ms. Ziccarelli

argues that the reasoning of the OAJC (signed by only three of the seven justices)

was not controlling—and that, instead, reading Justice Wecht’s concurring opinion

together with the other dissenting opinions shows that four justices found that the

date requirement was “mandatory,” such that the ballots are per se invalid under

Pennsylvania law, and thus cannot be counted. See, e.g., ECF 47, p. 15 (“[I]n short,

the legal principle that emerged from the Court’s decision was that mail-in ballots

with undated declarations are invalid under the Election Code.”); ECF 47, pp. 23-24

(“[U]ndated declarations render the accompanying ballot invalid under the plain

language of the statute, as confirmed by the Pennsylvania Supreme Court’s

interpretation.”).

From that premise, Ms. Ziccarelli proceeds to argue that (1) equal protection

requires that a uniform standard be applied across Allegheny and Westmoreland

Counties; and (2) the appropriate remedy is to discount the ballots that four Supreme

Court justices held to be invalid under Pennsylvania law. See, e.g., ECF 47, p. 31

(“[I]t is not disenfranchisement to disallow the counting of undated ballots that are

not now, and never were, lawful ballots under Pennsylvania law.”) (emphasis in

original); ECF 47, pp. 32 (“It is … a case where a discrete and identifiable set of

invalid ballots (the 311 undated Allegheny County ballots) can be readily separated

from the remaining lawfully cast ballots, and appropriately disqualified. Doing so

would ensure equal treatment of voters both across counties and within a single

county[.]”).

While a clever argument, the Court disagrees with Ms. Ziccarelli’s reading of

the Supreme Court’s decision—and, specifically, with her reading of Justice Wecht’s

concurrence. To be sure, under Pennsylvania law, the reasoning of the OAJC is not

controlling precedent. See 210 Pa. Code § 63.4(B)(3) (“An opinion shall be designated

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as the ‘Opinion Announcing the Judgment of the Court’ when it reflects only the

mandate, and not the rationale, of a majority of Justices.”) (emphasis added). It

is likewise true that Justice Wecht said that he thought the date requirement was

better understood as “mandatory.” Id. at *16. But he also explained that he “would

apply [his] interpretation only prospectively.” Id. He also very clearly, if

begrudgingly, found that, for purposes of Ms. Ziccarelli’s and the other consolidated

cases, the “disposition” reflected in the OAJC was correct. Id. That disposition

included issuing a mandate reinstating the lower court’s order that blessed the

Allegheny County Board of Elections’ decision to count the undated ballots. Id. (“The

decision of the Commonwealth Court is hereby reversed and the decision of the

Allegheny County Court of Common Pleas is reinstated.”).

Thus, this Court reads Justice Wecht’s opinion as expressly declining to join

the dissenters’ conclusion that the date requirement should presently be interpreted

as “mandatory,” such that the specific at-issue undated ballots are invalid. Instead,

he indicated that he might “adopt” such an interpretation “prospectively,” i.e., not

now but perhaps “in future elections.” Id. In doing so, he relied on Pennsylvania and

United States Supreme Court case law authorizing a court interpreting state election

law to “elect to apply only prospectively a ruling that overturns pre-existing law or

issues a ruling of first impression not foreshadowed by existing law.” Id. at *23

(Wecht, J. concurring) (citing Appeal of Zettner, 626 A.2d 146, 149 (Pa. 1993) (“To now

void the results of an election where all candidates were submitted to the voters, with

late but nonetheless filed financial statements which left adequate time for study by

the electorate, would be an unnecessary disenfranchisement.”); Andino v. Middleton,

141 S.Ct. 9 (Mem), 2020 WL 5887393, *1 (Oct. 5, 2020) (staying district-court

injunction “except … that any ballots cast before this stay issues and received within

two days of this order may not be rejected for failing to comply with the witness

requirement”)).

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In Justice Wecht’s view, prospective application was justified here due to a

lack of clarity in the election code, the absence of case law interpreting the relevant

provisions, and conflicting guidance leading up to the election from various state and

local election officials (likely due to the absence of any binding interpretation of the

code). See In re Nov. 3, 2020 Gen. Election, 2020 WL 6866415, at *23-24. Thus, he

determined that it “would be unfair” to interpret the election code “to punish voters

for the incidents of systemic growing pains.” Id. 4

What this means is that, in the end, four justices—in a case brought by the

same plaintiff and challenging the very same ballots at issue here—interpreted Act

77’s date requirement as not invalidating non-compliant ballots under the

circumstances present here, and thus held that Allegheny County’s decision to count

those ballots was proper. That interpretation of Pennsylvania law is binding on the

federal courts, including on this Court. See Riley v. Kennedy, 553 U.S. 406, 425 (2008)

(“A State’s highest court is unquestionably the ultimate expositor of state law. …

There is no good reason to hold otherwise simply because Alabama’s highest court …

did not render its decision until after an election was held.”) (cleaned up); Bush, 531

U.S. at 112 (Rehnquist, J. concurring) (“In most cases, comity and respect for

federalism compel us to defer to the decisions of state courts on issues of state law.

That practice reflects our understanding that the decisions of state courts are

definitive pronouncements of the will of the States as sovereigns.”).

4 Aside from the failure to date the declaration on their ballots, there is no suggestion
from either party that the voters who cast the challenged ballots here lacked the
qualifications to vote or that the ballots they cast were fraudulent. Nor is there any
suggestion that the ballots in question were untimely mailed. Thus, at bottom, this
case concerns ballots cast by lawful voters who wished to vote (presumably for both
Mr. Brewster and Ms. Ziccarelli, though in different proportions) but simply failed to
comply with a technical requirement of the election code.
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II. The Pennsylvania Supreme Court’s decision compels dismissal of

Ms. Ziccarelli’s federal constitutional claims.
Because the Pennsylvania Supreme Court held that undated ballots are not

invalid, Ms. Ziccarelli’s federal constitutional claims fail for at least two reasons.

First, on the merits, both of Ms. Ziccarelli’s federal claims depend on the

Pennsylvania Supreme Court declaring the undated ballots invalid. For example,

she brings an equal-protection claim, asserting that Allegheny County’s decision to

count the ballots conflicts with Westmoreland County’s decision to not count undated

ballots. She asserts that the application of different standards in different counties
violates the equal-protection principles found in Bush v. Gore. That may be so. See

Donald J. Trump for President, Inc. v. Boockvar, — F. Supp. 3d —, No. 20-966, 2020

WL 5997680, at *42 (W.D. Pa. Oct. 10, 2020) (Ranjan, J.) (“Bush’s core proposition—

that a state may not take the votes of two voters, similarly situated in all respects,

and, for no good reason, count the vote of one but not the other—seems

uncontroversial.”). But the question then becomes: what is the remedy?

To remedy an equal-protection violation, a court can either extend favorable

treatment and “level up” (i.e., order Westmoreland County, which is not a party here,

to count its undated ballots and enfranchise certain voters), or “level down” (i.e., order

Allegheny County to not count the undated ballots, and disenfranchise certain
voters). Donald J. Trump for President, Inc. v. Boockvar, — F. Supp. 3d —, No. 20-

2078, 2020 WL 6821992, at *12 (M.D. Pa. Nov. 21, 2020) (citing Heckler v. Mathews,

465 U.S. 728, 740 (1984)), aff’d sub nom. Donald J. Trump for President, Inc. v. Sec’y

of Pennsylvania, 830 F. App’x 377 (3d Cir. 2020).

Ms. Ziccarelli, relying on Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017),

argues that the decision to level up or down must be discerned from the legislative

intent behind the statute at issue. But that principle, applied here, is fatal to Ms.

Ziccarelli’s claim. The Pennsylvania Supreme Court held that the legislatively

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enacted election code does not automatically require invalidation of undated ballots,

even if the justices in the majority split on whether they might interpret legislative

intent to be different, when faced with a different context, in the future. This Court

is bound by the Pennsylvania Supreme Court’s interpretation of this state law—

which directly applies to the very ballots at issue here. Consequently, faithfully

implementing legislative intent here would require this Court to “level up,” resulting

in affirming Allegheny County’s counting of the undated ballots.

Similarly, Ms. Ziccarelli claims that her substantive due process rights have

been violated because the “rules have changed,” i.e., the “rule” before the election was

to not count undated ballots, but Defendants changed the rules by counting and

certifying those ballots. Not so. In interpreting the statute, the Pennsylvania

Supreme Court was necessarily deciding whether these ballots were valid at the time

they were cast—that is, before the election and before votes were counted. See Rivers

v. Roadway Exp., Inc., 511 U.S. 298, 312–13 (1994) (“A judicial construction of a

statute is an authoritative statement of what the statute meant before as well as after

the decision of the case giving rise to that construction.”). That the case reached the

Pennsylvania Supreme Court after the election does not evince a “change in the

rules.” See Riley, 553 U.S. at 425 (“There is no good reason to hold otherwise simply

because Alabama’s highest court … did not render its decision until after an election

was held.”).5 Moreover, Justice Wecht made clear that his decision to not apply his

5 Ms. Ziccarelli argues that Roe v. State of Ala. By & Through Evans, 43 F.3d 574,
580 (11th Cir. 1995) supports her contention that due process is violated by a post-
election, state-court decision that retroactively changes state election rules. Roe was
a very different case, and it doesn’t control here.
Roe involved a state-court decision that retroactively eliminated a requirement
of Alabama law that absentee ballots contain “the signature of two witnesses or a
notary.” Id. at 582. The Eleventh Circuit affirmed a district court finding that this
retroactive rule change violated due process. But it did so only because (1) “counting
ballots that were not previously counted would dilute the votes” of those who complied
with the previously established requirement; and (2) “the change in the rules after
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the election would have the effect of disenfranchising those who would have voted but
for the inconvenience imposed by the notarization/witness requirement.” Id. at 581.
The court also noted that the longstanding “practice of the election officials
throughout [Alabama] ha[d] been to exclude absentee ballots that did not meet this
requirement,” and that it would be “unreasonable to expect average voters and
candidates to question the Secretary’s, the Attorney General’s, and the election
officials’ interpretation and application” of the statutory requirement. Id.
None of these concerns is present here. First, Ms. Ziccarelli has disclaimed
any theory based on dilutive harm suffered by nonparty voters, ECF 65, p. 3 (“[T]his
harm is not asserted on behalf of nonparty voters”), and any such theory would not
be viable in this circuit after Bognet v. Sec’y Commonwealth of Pa., 980 F.3d 336, 354
(3d Cir. 2020) (“This conceptualization of vote dilution—state actors counting ballots
in violation of state election law—is not a concrete harm under the Equal Protection
Clause of the Fourteenth Amendment.”). As for Roe’s disenfranchisement concern,
there is no allegation or evidence that any voter “would have voted but for the
inconvenience” of writing the date on a ballot declaration. Roe, 43 F.3d at 581.
Critically, this case also differs from Roe in that the Pennsylvania Supreme Court’s
decision was not a “departure from previous practice” in Pennsylvania of invalidating
undated ballots. Id. Instead, the Supreme Court was interpreting the relevant
provisions of the election code as a matter of first impression. Pennsylvania voters’
reliance interests also cut in the opposite direction from Roe—as reflected by Justice
Wecht’s concern that he could not “say with any confidence that even diligent electors
were adequately informed as to what was required to avoid the consequence of
disqualification[.]” In re Nov. 3 Gen. Election, 2020 WL 6866415 at *24.
Given these distinctions, the Court does not find that the facts of Ms.
Ziccarelli’s case present anything resembling the sort of conscience-shocking behavior
that is required to show a due-process violation. See Boockvar, 2020 WL 5997680, at
*51 (“Such a claim exists in only the most extraordinary circumstances.”); Miller v.
City of Phila., 174 F.3d 368, 375 (3d Cir. 1999) (“[O]nly the most egregious official
conduct can be said to be arbitrary in the constitutional sense … “executive action
must be so ill-conceived or malicious that it ‘shocks the conscience.’”).
Separately, the Court notes that Roe also inspired a strong dissent that called
into doubt the majority opinion in several pertinent respects. These included the
majority’s “theory that Alabama’s legislature has the power in election contests to act
contrary to the law of Alabama as declared by Alabama’s highest court,” as well as
“the perception that a federal court order that countermands a pre-existing Alabama
court order maintains the status quo in Alabama.” Roe, 43 F.3d at 586 (Edmondson,
J. dissenting). The dissent’s concerns are consistent with the principle, noted above,
that “[a] judicial construction of a statute is an authoritative statement of what the
statute meant before as well as after the decision of the case giving rise to that
construction.” Rivers, 511 U.S. at 312–13.

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preferred interpretation of the statute except “prospectively” was premised on his

view that such a ruling would be a “ruling of first impression not foreshadowed by

existing law”—in other words, there was not a different rule set in place before the

election. In re Nov. 3, 2020 Gen. Election, 2020 WL 6866415, at *23. As a result,

there was no four-justice consensus for the view that the date requirement was

mandatory before the election.6

Second, because the Pennsylvania Supreme Court found that the ballots were

valid, if this Court were to adopt any contrary position, it would run afoul of the

Rooker-Feldman doctrine. That doctrine provides that a federal court, like this one,

cannot sit as an appellate court to review the decision of a state supreme court. See

In re Knapper, 407 F.3d 573, 580 (3d Cir. 2005) (“The Rooker–Feldman doctrine

prevents ‘inferior’ federal courts from sitting as appellate courts for state court

judgments.”) (citation omitted). “[T]here are four requirements that must be met for

the Rooker–Feldman doctrine to apply: (1) the federal plaintiff lost in state court; (2)

the plaintiff complains of injuries caused by the state-court judgments; (3) those

judgments were rendered before the federal suit was filed; and (4) the plaintiff is

6Ms. Ziccarelli’s due-process claim is also based on Secretary Boockvar’s pre-election

guidance to county boards of elections to not count any undated ballots. She says the
Secretary changed the rules from before the election by certifying Allegheny County’s
count, including the challenged ballots, after initially issuing pre-election guidance
suggesting that undated ballots should not be counted. The Secretary disputes Ms.
Ziccarelli’s interpretation of her guidance. But in any event, under Pennsylvania law,
the Secretary’s pre-election guidance is just that—guidance. County boards of
elections ultimately determine what ballots to count or not count in the first instance.
See 25 P.S. § 2642; see also Boockvar, 2020 WL 5997680, at *9 (“The Election Code
vests county boards of elections with discretion to conduct elections and implement
procedures intended to ensure the honesty, efficiency, and uniformity of
Pennsylvania’s elections.”). Then, if there are any disputes about the counties’
decisions, those disputes are definitively resolved by the state courts, not the
Secretary. As a result, Secretary Boockvar did not have the authority to “change the
rules.” Her guidance has force only insofar as it correctly interprets the law.
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inviting the district court to review and reject the state judgments.” Great W. Mining

& Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010) (cleaned up).

All four elements are satisfied here. If, as Ms. Ziccarelli invites, the Court were

to piece together the non-precedential reasoning of the Pennsylvania Supreme

Court’s concurring and dissenting justices to hold that the undated ballots are, in

fact, invalid under Pennsylvania law, it would be effectively overturning the

judgment of that Court—which affirmed that Allegheny County’s decision to count

the ballots was proper under Pennsylvania law. In other words, to grant Ms.

Ziccarelli the relief she seeks, the Court would be required to tell a state supreme

court that, based on its reasoning, the judgment it entered was erroneous. Rooker-

Feldman forbids such an action, so long as the doctrine’s other elements are also

satisfied. They are. Ms. Ziccarelli was the plaintiff in the state court proceedings;

she lost; and the Supreme Court’s judgment was issued before this case was filed.

There is one more point to make about the Pennsylvania Supreme Court’s

decision and Rooker-Feldman. One fair reading of the court’s decision is that the date

requirement essentially gave Allegheny County the option to count or not count the

undated ballots.7 That certainly is a potential equal-protection risk, because some

counties may count undated ballots and others may not, in the exercise of their

7 See In re Nov. 3, 2020 Gen. Election, 2020 WL 6866415, at *16 (“[W]e decline to
intercede in the counting of the votes at issue in these appeals.”) (emphasis added);
id. at *14 (“[T]he inadvertent failure to comply does not require that ballots lacking
a date be excluded from counting.”) (emphasis added); but see id. at *15 (“[T]he lack
of a handwritten date cannot result in vote disqualification.”) (emphasis added).
Allegheny County argues it was required to count the ballots by the Supreme
Court’s decision. Ms. Ziccarelli argues that Allegheny County was required not to do
so, based on the reasoning of the dissenting justices and Justice Wecht. Therefore,
the parties do not appear to be necessarily advancing an interpretation of the
Pennsylvania Supreme Court’s decision that Allegheny County had discretion to
count or not count the ballots. The Court addresses it here out of an abundance of
caution.

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discretion. But even if the Supreme Court left to Allegheny County the discretion to

either count or discount the ballots (i.e., if its holding were merely that counting

undated ballots is permissible but not required), that would run directly into Rooker-

Feldman.

This is so because any equal-protection issue would then flow not from the

counties’ decisions themselves, but from the Pennsylvania Supreme Court’s

“mandatory” / “directory” framework and its application of that framework to ratify

a discretionary state of affairs. Cf. Bush, 531 U.S. at 107 (Florida Supreme Court

violated equal protection when it “ratified … uneven treatment” of equivalent votes).8

Given that, to grant Ms. Ziccarelli relief, the Court would be required to hold that the

Pennsylvania Supreme Court’s decision violated the federal Constitution. Rooker-

Feldman deprives this Court of the authority to make such determinations in the

context of an “appeal” by the loser in the state-court lawsuit where that decision was

made.

To be clear, this does not mean that no federal remedy is available when a state

supreme court’s decision creates a federal equal-protection issue. It just means that,

as in Bush v. Gore, the United States Supreme Court has exclusive jurisdiction to

hear an appeal directly from that decision, while the lower federal courts, like this

one, lack jurisdiction under Rooker-Feldman. See Walker v. Horn, 385 F.3d 321, 329

(3d Cir. 2004) (“The Rooker–Feldman doctrine arises from 28 U.S.C. § 1257 which

states in relevant part that ‘[f]inal judgments or decrees rendered by the highest court

of a state in which a decision could be had, may be reviewed by the Supreme Court....’

… Since Congress has never conferred a similar power of review on the United States

8 Indeed, the Pennsylvania Supreme Court recently hinted that its “mandatory” /
“directory” framework could create an equal-protection violation, but declined to find
such a violation based on the record before it. See Pennsylvania Democratic Party v.
Boockvar, 238 A.3d 345, 361 (Pa. 2020).
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District Courts, the Supreme Court has inferred that Congress did not intend to

empower District Courts to review state court decisions.”) (cleaned up).

In sum, the correct interpretation of the Pennsylvania Supreme Court’s

decision on Ms. Ziccarelli’s state-court appeal is that the challenged ballots are valid

and may properly be counted. This causes Ms. Ziccarelli’s federal claims to fail on

the merits. Separately, any other result would effectively overturn the Pennsylvania

Supreme Court’s decision, in violation of Rooker-Feldman.9

CONCLUSION

For all the reasons discussed above, the Court will grant Defendants’ and

Intervenors’ motions for summary judgment and deny Ms. Ziccarelli’s cross-motion

for summary judgment. An appropriate order follows.

DATED: January 12, 2021 BY THE COURT:

/s/ J. Nicholas Ranjan

United States District Judge

9 Defendants argue that this Court lacks subject-matter jurisdiction under Rooker-
Feldman. The Court, however, believes that the more appropriate view of Rooker-
Feldman here is that that doctrine acts to constrain how this Court can interpret the
Pennsylvania Supreme Court’s decision in analyzing the merits of Ms. Ziccarelli’s
federal claims. In other words, this Court has subject-matter jurisdiction to
adjudicate the federal claims, so long as its analysis of the claims does not seek to
invalidate the state-court judgment. See Jordon v. Attorney Gen. of U.S., 424 F.3d
320, 325 n.8 (3d Cir. 2005) (noting that in cases involving statutory jurisdiction, as
opposed to Article III jurisdiction, federal courts may consider the merits of the claims
before addressing jurisdictional issues).
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