Counsel for U.S. House of Representatives candidates Sean Parnell and Luke Negron argued in Friday's phone hearing that the county's current system and the Pennsylvania Election Code gave no opportunity for the campaigns' poll watchers to determine whether a voter had used a misprinted ballot, a corrected one or both, unless the candidates put up a bond for $10 apiece to preemptively challenge all 28,789 misprints and their replacements.
The candidates claimed that the county's handling of the ballots violated voters' equal-protection rights under the U.S. Constitution, and had asked in an amended complaint Thursday that the county consider all the misprinted and reissued ballots as preemptively challenged, without the fee.
"The code for provisional ballots gives the remedy for all ballots to be opened and taken before the court to determine if they were appropriately cast. ... There is no cost to the candidate to question or challenge those ballots," said Thomas Breth of Dillon McCandless King Coulter & Graham LLP, representing the candidates and two would-be poll watchers. "Treat these double ballots as provisional ... so candidates can come in and evaluate all these ballots and determine the proper way under the Election Code to count them."
Another part of their lawsuit, seeking to have poll watchers at "satellite" election offices set up over the weekend, was denied at the opening of Friday's hearing.
Andrew Szefi, representing the Allegheny County Board of Elections, said the county already had a procedure where it would set aside any of the returned misprints — which the county said was the fault of an Ohio-based vendor that mismatched voters with the ballots for their particular districts — in their own area of the county's secure ballot storage room. When all the ballots were in, election workers would compare them to any replacement ballots that were returned.
Every ballot has a barcode unique to each voter, which gets scanned into the Pennsylvania's Statewide Uniform Registry of Electors when they arrive at the elections office. That system can flag when a voter has already cast their ballot, and the replacement ballots have an orange stripe on their envelopes that let voters and elections workers know they came from that batch, Szefi told the judge.
Where the voters sent back both ballots or only the replacement ones, Szefi said the county would only count the replacement ones. But where voters had only returned the original, misprinted ones, the county would count the votes for the races that appeared on all the ballots, such as president and statewide offices, similar to how it counts provisional ballots cast when a voter walks into the wrong district's polling place and still wants to vote there.
U.S. District Judge J. Nicholas Ranjan said he had difficulty seeing how the county's proposed method differed from treating the ballots as provisional, but the candidates' attorneys said there were differences in the scope and timing for when they could challenge a vote as improperly cast.
Since knowing which votes to count will require comparing the misprinted ballots to the correct ones, the county has to wait until the 5 p.m. Nov. 6 deadline for ballots sent by the end of Election Day to make their way through the mail, Szefi said — though a pending federal lawsuit seeks to roll that deadline back to 8 p.m. on Election Day. But under the current Election Code rules, the deadline to challenge anyone's eligibility to vote by mail, based on the list of who has applied, is the Friday before Election Day, or Oct. 30, he said.
Breth said that meant ballots could still be arriving without any means to be questioned.
"The deadline passes before we'll have all the information," he said.
Szefi countered that a voter returning a misprinted ballot was not at fault, and that if the candidates feared the county was erroneously double-counting those who returned both, there were other means of auditing the tally.
"That they voted on an incorrect ballot is not a grounds for challenge. ... They did absolutely nothing wrong; they're victims of a computer error at a vendor," he said. "Any objections to how the ballots are handled would be taken as an objection to the elections judge in the Court of Common Pleas."
Thomas King III, another Dillon McCandless attorney representing the candidates, said the lawsuit wasn't intended to disenfranchise voters or to make the county send all 29,000 voters a third mailer with provisional ballots.
Clifford Levine of Dentons Cohen and Grigsby PC, representing intervenors from the Pennsylvania Democratic Party and Democratic elected officials, noted that the provisional-ballot section of the Election Code says voters whose ballots are challenged get to come to court to respond to the challenge, though King, Breth and Judge Ranjan agreed that the candidates were not seeking to apply the whole provisional ballot procedure to all the votes from the misprinted batch.
"This isn't 'Let's drag 29,000 people to court,'" Breth said. "With all due respect to the Election Board, their position is 'Trust us.' Your honor, they're the ones who made the mistake in the first place. There needs to be an open, transparent process."
Judge Ranjan set a hearing for Oct. 28, but encouraged the parties to try to work out an agreement for how the ballots could be handled and counted.
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 Democratic Party intervenors are represented by Clifford B. Levine, Alex M. Lacey and Kyle J. Semroc of Dentons Cohen & Grigsby PC, and Lazar M. Palnick.
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 Adam LoBelia.
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