Candidates Sean Parnell and Luke Negron filed an amended complaint that dropped claims Allegheny County had violated the Pennsylvania Election Code by prohibiting poll watchers at the election offices and satellite locations and recast the case as one of unconstitutional equal protection violations, in part because the Election Code requires a $10 fee for each absentee ballot being challenged.
With 28,789 ballots identified in the misprinted batch, along with their replacements, the lawsuit said the candidates could be charged hundreds of thousands of dollars to make sure none of the incorrect ballots get counted in the battleground state.
"Defendants' conduct … creates an undue burden on plaintiffs' rights to challenge the mishandled ballots by making them pay an unconstitutional and exorbitant fee — at least $288,790 and as much as $577,580, for an error committed by defendants," the complaint said.
The lawsuit asked the court for a temporary restraining order declaring all the misprinted ballots and their replacements as preemptively challenged, without the $10-per-ballot fee, along with orders granting poll watchers access to the satellite elections offices.
Additional plaintiffs Brian Chew and Jay Hagerman joined the revised complaint, which said they had applied for poll-watcher certification the second of three weekends that Allegheny County offered satellite election offices where people could request, fill out and return mail-in ballots in the Pittsburgh area, but they had been turned down because no certificates had been issued yet.
The lawsuit dropped its demand that Allegheny County halt all presorting of returned ballots and stop scanning them into Pennsylvania's Statewide Uniform Registry of Electors. In a status report also filed Thursday, the county had said such a halt would prevent voters from learning through the SURE system when their ballots had been received and would delay the actual counting of the ballots once it starts the morning of Election Day. Pennsylvania law says absentee and mail-in ballots can't be opened and counted until 7 a.m. Nov. 3.
"This proposal would not preserve the status quo and would result in the delay of pre-canvass and canvass that would extend for multiple days and possibly over a week, thus creating uncertainty and concern over the results of all races on the ballot," the county's status report to U.S. District Judge J. Nicholas Ranjan said.
The county's status report also said the scanning process was how officials were determining if the ballots came from the misprinted batch or the reprints, and those ballots were being kept separately in a secure ballot-storage area until Election Day.
Parnell and Negron first sued the county in federal court Oct. 16, arguing that the county had wrongfully denied Chew and Hagerman's requests to be poll watchers. They pointed to the misprinted ballots and the county's decision to issue corrected ones — instead of making all the recipients cast provisional ballots — as an alleged violation of the state Election Code and an irregularity demanding poll watchers for transparency.
The candidates said the reprinted ballots also distinguished the case from a lawsuit seeking poll watchers in Philadelphia, which was under appeal to the Commonwealth Court after a state court judge rejected the claims.
The county said in its status report that it had no objection to the campaign having the proposed poll watchers as "observers" at the satellite offices, provided that they were following the same rules as everyone else there for wearing masks, not interfering with members of the public and staying out of areas where ballots were being scanned into the SURE system or where people may be filling out ballots that they had requested and received.
When it filed its response to the original complaint earlier Thursday, Allegheny County argued that Parnell and Negron lacked standing to sue since poll watchers were governed by state law and not the federal Constitution, and they should have instead joined the Commonwealth Court appeal of the Philadelphia case.
The watchers' duties at an Election Day polling place — verifying and potentially challenging voters' eligibility to cast their ballots — was a function being fulfilled by office staff checking ballot applications and returns against the SURE system, the brief said.
None of the county's filings addressed the preemptive-challenge request, since it was new as of Thursday afternoon.
Thomas King III of Dillon McCandless King Coulter & Graham, representing the candidates, said he hoped the court would decide how to handle the misprinted and reissued ballots, including whether to count the misprinted ballots if the replacement ballots weren't also returned, or if they had votes for the top of the ticket, statewide races or the correct congressional districts despite the misprints.
"We need to mark them all as challenged, set them aside and safeguard them," he told Law360. "The court needs to figure out what to do."
Representatives of the county did not immediately respond to requests for comment Thursday.
The Republican candidates and prospective poll watchers are represented by Thomas King III, Thomas Breth and Jordan Shuber of Dillon McCandless King Coulter & Graham LLP.
Allegheny County is represented by Virginia Spencer Scott, Andrew Szefi, Frances Liebenguth and George Janocsko of the county law department.
The case is Parnell et al. v. Allegheny County Board of Elections et al., case number 2:20-cv-01570, in the U.S. District Court for the Western District of Pennsylvania.
--Editing by Jack Karp.
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