The county Board of Elections will wait until the ballot-return deadline before pre-canvassing mail-in ballots from the batch of 28,879 voters who received misprinted ballots and then got corrected replacements, so the misprints can be matched up with the replacements and each person's vote only counted once.
"The BOE agrees that it will not pre-canvass any of the initial ballots or corrected ballots until after the ballot acceptance deadline to ensure that only one ballot is counted per voter," the consent agreement between the county and the Republican plaintiffs said. "All persons authorized may observe the pre-canvassing of these ballots in the same manner and to the same extent as any other ballot pre-canvassed pursuant to the Pennsylvania Election Code."
The process in the settlement was substantially the same as what county attorney Andrew Szefi had described as the county's plan in a hearing Friday. In the lawsuit, candidates Sean Parnell and Luke Negron had sought to preemptively treat all the ballots as "challenged" or "provisional" and sought to give poll watchers access to the satellite election offices where ballots were being returned over the weekend.
Allegheny County had said its Ohio-based vendor had an "imaging error" in printing the ballots, which resulted in each voter getting the ballot for the next voter in the print queue. The county and vendor then sent out corrected ballots, which were externally distinguishable with an orange stripe on their outer envelopes.
Parnell and Negron had sued Oct. 16, initially demanding poll watcher access and that the county stop all pre-sorting and scanning of the ballots altogether, but the court denied the poll watchers at the same time a state court denied a similar request for access to Philadelphia's satellite election offices. The request for a halt to scanning and sorting was dropped from the candidates' amended complaint when the county emphasized that it would delay pre-canvassing and counting by days or even weeks.
The candidates agreed to withdraw the lawsuit with the settlement, which still leaves days after Election Day for potentially tens of thousands of votes to be counted in the battleground state.
Under Sunday's settlement, the misprints and corrected ballots will continue to be sorted and kept in separate areas of the county's secure ballot storage area. They will not be touched again until the ballot-return deadline passes so all eligible ballots have been received. The deadline is Nov. 6 for all ballots dropped off or mailed by 8 p.m. on Election Day, though there are a number of challenges from Republicans in federal court seeking to roll back the three-day extension that the Supreme Court of Pennsylvania had granted in September.
After the deadline passes, the segregated ballots will then be sorted into three categories: votes where just the corrected ballots were returned, votes where both the misprint and the corrected ballots were returned, and votes where just the misprinted ballots were returned.
For the first two categories, only the corrected ballots will be counted, and any misprinted ballots they corresponded to will be kept "unopened, segregated and securely stored," the settlement said.
For the category where only the misprints were sent back and there were no matching corrected ballots from the same voter, the county will disregard any votes for races in the incorrect districts but will count the rest.
"With respect to [voters who returned only an initial ballot], the County Board of Elections shall count only those portions of an initial ballot for those public offices that the individual voting that initial ballot would have been eligible to vote for in the individual's proper election district and at the election district if the individual had cast a vote in person," the settlement said.
Szefi had said in Friday's hearing that scanning ballots into the state's computer system as they arrived helped flag when a voter returned both ballots, since the system alerts when a voter is scanned into the system more than once.
In a statement from the county Monday, Szefi blasted the lawsuit as a "waste of time and resources."
"These candidates sought to have poll watchers in offices and to challenge the ballots of over 28,000 innocent voters. They accomplished neither," he said. "Instead, they are now endorsing a process that was in place and transparently explained before they ever took us to court."
Attorney Thomas King III of Dillon McCandless King Coulter & Graham LLP, representing the candidates, said the settlement formalized the process and made it legally binding.
"We have a complete procedure … of how to deal with 29,000 mishandled ballots," King told Law360 on Monday. "This was a matter absolutely not provided for in the Pennsylvania Elections Code. Absent this agreement, there would have been nothing aside from the Allegheny County Elections Bureau making things up as it went."
Counsel for intervenors from the Pennsylvania Democratic Party did not immediately respond to requests for comment.
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 Orlando Lorenzo.
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