PITTSBURGH (KDKA) – The still undecided state senate race between incumbent Jim Brewster, a Democrat, and Republican challenger Nicole Ziccarelli may come down to the federal court.

Brewster is ahead by 89 votes in the 45th senatorial district that stretches from the Mon Valley through Monroeville, and into the Alle-Kiski Valley in Westmoreland County.

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Democrat Jim Brewster leads because an Allegheny County judge ruled in a case, upheld by the state supreme court, that certain mail-in ballots could be counted even though voters forgot to date the outer envelopes of their ballots.

In Westmoreland County, however, the board of elections ruled undated ballots in that county could not be counted.

If the undated Allegheny County mail-in ballots are not counted, Ziccarelli wins by 20 votes.

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She has now gone to court to make that happen.

“We filed an action in federal court, alleging violations of the U.S. Constitution, specifically that there was an Equal Protection violation and a Due Process violation in the way these counts were handled differently in each of the counties of the 45th Senatorial,” said Matt Haverstick, an attorney for Ziccarelli.

Democrats say all votes should be counted in both counties and there’s no indication on when the local federal judge will make his decision.

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State senators are sworn in on January 5, 2021.