A Court Fight Is Brewing Over A Ballot Slip-Up Affecting 29K Pittsburgh-Area Voters

DENVER, CO - OCTOBER 15: More than 40 pallets of Ballots were unloaded from a truck at the US Postal facility October 15, 2014 where they will be sorted for delivery. The impact and problems associated with Colorado'... DENVER, CO - OCTOBER 15: More than 40 pallets of Ballots were unloaded from a truck at the US Postal facility October 15, 2014 where they will be sorted for delivery. The impact and problems associated with Colorado's new all-mail ballot election may still be ahead. (Photo by John Leyba/The Denver Post via Getty Images) MORE LESS
October 23, 2020 4:28 p.m.

Republicans have gone to federal court to make it easier for them to challenge the ballots of nearly 29,000 Pittsburgh-area voters who were caught up in ballot-sending flub in recent weeks.

The court fight stems from a mail vendor screw-up that resulted in 28,879 Allegheny County voters being sent the wrong ballots. Election officials have since sent those voters the correct ballots, and have created a process to prevent those voters from having their votes counted twice if they send both of the ballots back in. 

But two GOP U.S. House candidates filed a federal lawsuit earlier this month arguing the county’s approach to the blunder violates their constitutional rights. They’ve asked the court to order that any ballot cast by the nearly 29,000 affected voters be automatically treated as “challenged” — a designation that could subject the ballot to an onerous process in order to be counted — and that the court waive the $10-per-ballot fee the candidates would usually face to file challenges.  

If the Republicans get their way, it could create a messy and confusing situation that would drag out the process of counting and tabulating the results of a key swing state that’s already been a flashpoint of election litigation. President Trump has made false claims to suggest that any delay in announcing the presidential election is a sign of fraud. He and his allies have also signaled the potential that a Bush v. Gore-like legal battle could ultimately resolve the election.

When ballots are challenged in Pennsylvania, they’re subjected to an additional set of checks akin to provisional ballots. The process includes the voter receiving a notice that her ballot is being challenged and a hearing in front of an elections board to resolve whether it should be tossed.

At a hearing Friday morning, U.S. District Judge J. Nicholas Ranjan urged Republicans and Allegheny County to work out an agreement over the weekend that would avoid a court fight while the election was underway or right after.

Both sides ultimately said they’d give such a discussion a shot, but Allegheny County lawyer Andrew Szefi stressed that the county officials were already extremely busy managing the current election.

Democrats have been allowed to intervene in the case. In their filings, they argued that if the GOP requests were granted, it “significantly delay the canvassing process and resolution of the election.”

“[S]ubjecting tens of thousands of ballots to a time-consuming challenge process without any basis to question the eligibility of any specific voter…not only violates state law, it tramples the constitutional rights of voters and improperly injects this Court into election administration decisions that state officials are better equipped to make,” the Democrats said in a court filing earlier this week.

The judge has already rejected a separate request that the Republicans made in the case that the county allow poll watchers to observe the so-called “satellite” election offices where voters can submit in-person their absentee ballots.

At Friday’s hearing, lawyers for the GOP candidates argued their goal is not to disenfranchise people, but to guarantee they will be able to evaluate that all the ballots from the 29,000 voters are being treated in accordance of state law.

“This isn’t ‘let’s strike 29,000 people in there and create this big convoluted mess.’” Thomas Breth, one of the GOP lawyers, said. “But there are some significant legal issues and a multitude of scenarios that have to be spelled out.”

The county, meanwhile, defended the system it set up: voters who only cast the correct ballot will have those ballots counted, those who cast a erroneous ballot will be treated like a in-person voter who has shown up to the wrong precinct (their statewide votes will count), and those who cast both will see only the correct ballots counted.

Republican campaigns will be able to observe the process of reconciling the ballots from those voters fitting into the third category. Szefi, the lawyer for Allegheny County, noted that at that point, if Republicans had issues with how the ballots were being handled, they could file a lawsuit in state court. Szefi questioned why this was even a matter for a federal court to resolve.

Hanging their arguments on the Supreme Court’s Bush v. Gore decision, Republicans claim the the county is violating their 14th Amendment equal protection rights.

Judge Ranjan said that, regardless of whether the county is right on that legal question, it was in “everybody’s best interest to sort this out now, whether it’s a consent order or something along those lines.” 

“I don’t think it’s in everyone’s best interest to have a bunch of Election Day lawsuits over these ballots when there hopefully could be some agreement on the procedures that will be implemented,” he said. 

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