CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 11/1/2023 1

Absentee Ballots Delivered by Third Parties 

Pierce v. Allegheny County Board of Elections 

(Joy Flowers Conti, W.D. Pa. 2:03-cv-1677) 

On the Friday before the November 2003 general election, two candidates filed a federal action to enjoin the counting of absentee ballots that were delivered to a board of elections by persons other 

than the voters. The district judge cleared her calendar and held a 

hearing that afternoon, after which she ordered the ballots in question segregated. She conducted a day-long hearing on Monday; on 

Tuesday, she ruled that the ballots should remain segregated and 

deemed challenged under state law. State officials and state courts 

eventually determined that some of the ballots in question were valid and some were not. 

Subject: Absentee and early voting. Topics: Absentee ballots; 

ballot segregation; matters for state courts. 

On the Friday before the November 2003 general election in Pennsylvania, 

two Republican candidates for office in Allegheny County filed civil actions 

in both state and federal court to enjoin the counting of absentee ballots that 

were delivered to the Allegheny County’s board of elections by persons other 

than the voters.1 There were 937 such ballots in question.2 The court assigned 

the case to Judge Joy Flowers Conti, who issued a temporary restraining order that day after a hearing in the afternoon.3

 She ordered segregation of the 

937 absentee ballots in question.4

According to Pennsylvania law, when casting an absentee ballot, “the 

elector shall send same by mail, postage prepaid, except where franked, or 

deliver it in person to [the] county board of election.”5 It was customary for 

the election board in Allegheny County to accept absentee ballots from third 

parties.6 In response to an inquiry from the Republican Party, the county 

board tightened its policy on October 22, 2003.7 There were concerns that 

the new policy prohibiting third-party delivery ran afoul of protections for 

1. Docket Sheet, Pierce v. Allegheny Cty. Bd. of Elections, No. 2:03-cv-1677 (Oct. 31, 

2003); Pierce v. Allegheny Cty. Bd. of Elections, 324 F. Supp. 2d 684, 688–89 (W.D. Pa. 

2003); In re Canvass of Absentee Ballots, 577 Pa. 231, 843 A.2d 1223, 1227 (2004). 

2. Pierce, 324 F. Supp. 2d at 688–91, 693, 706–09. 

3. Id. at 689; In re Canvass, 577 Pa. 231, 843 A.2d at 1227 n.5. 

Tim Reagan interviewed Judge Conti for this report by telephone on October 31, 2012. 

4. Pierce, 324 F. Supp. 2d at 689; see Mike Wereschagin, Federal Judge to Decide on Absentee Ballots, Pittsburgh Trib. Rev., Nov. 4, 2003. 

5. 25 Pa. Stat. § 3146.6(a); Pierce, 324 F. Supp. 2d at 689–91, 698–700, 705–06 & n.1; In re 

Canvass, 577 Pa. 231, 843 A.2d at 1226; In re Canvass of Absentee Ballots, 839 A.2d 451, 453 

& nn.1–2 (Pa. Commw. 2003). 

6. Pierce, 324 F. Supp. 2d at 690; In re Canvass, 577 Pa. 231, 843 A.2d at 1226; In re Canvass, 839 A.2d at 453; see Jeffrey Cohan, No Absentee Ballots Accepted from Third Parties, 

Pittsburgh Post-Gazette, Oct. 24, 2003, at B22. 

7. Pierce, 324 F. Supp. 2d at 690; In re Canvass, 577 Pa. 231, 843 A.2d at 1226; In re Canvass, 839 A.2d at 453–54; see Cohan, supra note 6. 
Absentee Ballots Delivered by Third Parties 

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disabled voters, so the policy was revised on October 27 to permit receipt of 

absentee ballots from third parties who submitted special certifications.8

It was clear to Judge Conti that prompt segregation of the ballots was essential to preserving the issue for litigation, because otherwise the ballots 

would become commingled and relief would become infeasible.9 Granting 

the temporary restraining order enabled the status quo to be preserved without unduly interfering with state proceedings.10 She cleared her calendar for 

the Friday afternoon proceeding, which attracted some public interest.11 Her 

next hearing on Monday drew more interest, but not so much as to be a 

problem for the court.12

On Monday, the plaintiffs dropped their state-court action, and Judge 

Conti presided over a day-long hearing.13 On the following day, she converted her order into a preliminary injunction, declaring that the 937 ballots in 

question were to be segregated and deemed challenged under Pennsylvania 

law.14

The plaintiffs promptly paid the challenge fee of $10 per ballot to the 

elections division.15 They hired a private investigator to examine the ballots, 

and they decided to go ahead with challenges for approximately 440.16 Each 

of those challenged voters was given notice of the challenge and hearing procedures.17 Some municipal races remained undetermined because of the 

challenged ballots.18

In a published opinion issued on November 13, Judge Conti explained 

that the candidates did not have standing to bring their federal complaint as 

candidates, but they had standing to bring the complaint as voters, because 

their votes could be diluted by improperly cast ballots.19 Whether any of Allegheny County’s three policies for absentee ballots in 2003 violated state law 

was a matter for Pennsylvania’s state courts to resolve, but whether the different counties were applying Pennsylvania law equally was a matter of equal 

8. Pierce, 324 F. Supp. 2d at 690; In re Canvass, 577 Pa. 231, 843 A.2d at 1226–27; In re 

Canvass, 839 A.2d at 454; see Wereschagin, supra note 4. 

9. Interview with Hon. Joy Flowers Conti, Oct. 31, 2012. 

10. Id. 

11. Id. 

12. Id. 

13. Pierce, 324 F. Supp. 2d at 689. 

14. Id.; In re Canvass of Absentee Ballots, 577 Pa. 231, 843 A.2d 1223, 1227 & n.5 (2004); 

In re Canvass of Absentee Ballots, 839 A.2d 451, 454 & n.3 (Pa. Commw. 2003); see Robert 

Baird, Absentee Challenge Proceeds, Pittsburgh Trib. Rev., Nov. 5, 2003; Torsten Ove, 937 

Ballots to Be Held for Possible Challenges, Pittsburgh Post-Gazette, Nov. 5, 2003, at C8. 

15. See Baird, supra note 14. 

16. See Mike Wereschagin, Some Races Hinge on Fate of Ballots, Pittsburgh Trib. Rev., 

Nov. 12, 2003. 

17. In re Canvass, 839 A.2d at 454–55; see Wereschagin, supra note 16. 

18. See Wereschagin, supra note 16.

19. Pierce v. Allegheny Cty. Bd. of Elections, 324 F. Supp. 2d 684, 692–93 (W.D. Pa. 

2003). 
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protection under the U.S. Constitution.20 An appeal was dismissed as settled 

in January 2004.21

On November 14, 2003, the elections board determined that seventy-four 

ballots should be disqualified.22 These included ballots cast according to 

county policy at the time that was later determined to be too lenient.23 The 

wife of Senator John Kerry and the local U.S. Attorney were among the affected voters.24 Some valid votes were disqualified because they had been 

commingled with invalid votes.25 On November 26, a state judge ruled that 

the ballots should be counted after all,26 a decision that was affirmed on appeal.27 Pennsylvania’s supreme court, however, determined that fifty-six ballots were invalid because they had not been delivered by the voter as required 

by state law.28

Both of the federal plaintiffs lost their elections.29

20. Id. at 695–99. 

21. Docket Sheet, Pierce v. Allegheny Cty. Bd. of Elections, No. 03-4667 (3d Cir. Dec. 11, 

2003). 

22. In re Canvass of Absentee Ballots, 577 Pa. 231, 843 A.2d 1223, 1228 (2004); In re 

Canvass, 839 A.2d at 455; see Jeffrey Cohan, County Throws Out 74 Absentee Ballots, Pittsburgh Post-Gazette, Nov. 15, 2003, at A1. 

23. See Cohan, supra note 22. 

24. See id. 

25. In re Canvass, 577 Pa. 231, 843 A.2d at 1228; In re Canvass, 839 A.2d at 454; see Cohan, supra note 22.

26. In re Canvass, 577 Pa. 231, 843 A.2d at 1228–29; In re Canvass, 839 A.2d at 455–56, 

458; see Jeffrey Cohan, Judge Validates Absentee Votes, Pittsburgh Post-Gazette, Nov. 27, 

2003, at C1; Mike Wereschagin, 75 Absentee Ballots Will Be Counted, Pittsburgh Trib. Rev., 

Nov. 28, 2003. 

27. In re Canvass, 839 A.2d at 453, 460, rev’d, 577 Pa. 231, 843 A.2d 1223; see David M. 

Brown, Validity of 75 Ballots Affirmed, Pittsburgh Trib. Rev., Dec. 19, 2003. 

28. In re Canvass, 577 Pa. 231, 843 A.2d 1223; see Jeffrey Cohan, Third-Party Delivery of 

Ballots Ruled Illegal, Pittsburgh Post-Gazette, Mar. 11, 2004, at B2; Gantman Won Judge’s 

Seat with Wider Lead, Phila. Inquirer, Mar. 9, 2004, at B7. 

29. In re Canvass, 577 Pa. 231, 843 A.2d 1223, 1225 & n.1.