JS 44 (Rev.

10/20) CIVILDocument
Case 2:20-cv-05477-PBT COVER 1SHEET
Filed 11/03/20 Page 1 of 14
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS
KATHY BARNETTE and CLAY D. BREECE KENNETH E. LAWRENCE, VALERIE ARKOOSH, MD,
MPH, and FRAN DEAN
(b) County of Residence of First Listed Plaintiff Montgomery County of Residence of First Listed Defendant Montgomery
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Andrew Teitelman, Law Offices of Andrew Teitelman Josh M. Stein, County Solicitor, One Montgomery Plaza ste
P.C., 380 Red Lion Rd Ste 103, Huntingdon Valley, PA 800, Norristown, PA 19404 610-278-3033
19006 267-255-6864
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government ✖ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4
of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act
120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC
130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))
140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment
150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust
& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking
151 Medicare Act 330 Federal Employers’ Product Liability 830 Patent 450 Commerce
152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent - Abbreviated 460 Deportation
Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer Influenced and
(Excludes Veterans) 345 Marine Product Liability 840 Trademark Corrupt Organizations
153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR 880 Defend Trade Secrets 480 Consumer Credit
of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards Act of 2016 (15 USC 1681 or 1692)
160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending Act 485 Telephone Consumer
190 Other Contract Product Liability 380 Other Personal 720 Labor/Management SOCIAL SECURITY Protection Act
195 Contract Product Liability 360 Other Personal Property Damage Relations 861 HIA (1395ff) 490 Cable/Sat TV
196 Franchise Injury 385 Property Damage 740 Railway Labor Act 862 Black Lung (923) 850 Securities/Commodities/
362 Personal Injury - Product Liability 751 Family and Medical 863 DIWC/DIWW (405(g)) Exchange
Medical Malpractice Leave Act 864 SSID Title XVI 890 Other Statutory Actions
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 790 Other Labor Litigation 865 RSI (405(g)) 891 Agricultural Acts
210 Land Condemnation 440 Other Civil Rights Habeas Corpus: 791 Employee Retirement 893 Environmental Matters
220 Foreclosure 441 Voting 463 Alien Detainee Income Security Act FEDERAL TAX SUITS 895 Freedom of Information
230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 870 Taxes (U.S. Plaintiff Act
240 Torts to Land 443 Housing/ Sentence or Defendant) 896 Arbitration
245 Tort Product Liability Accommodations 530 General 871 IRS—Third Party 899 Administrative Procedure
290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION 26 USC 7609 Act/Review or Appeal of
Employment Other: 462 Naturalization Application Agency Decision
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Other 550 Civil Rights Actions State Statutes
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✖ 1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
United States Constitution - Fourteenth Amendment
VI. CAUSE OF ACTION Brief description of cause:
Violation of equal protection clause as to voters of Montgomery County and Berks County, Pennsylvania
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
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VIII. RELATED CASE(S)
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IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
11/03/2020 Andrew Teitelman
FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

Case 2:20-cv-05477-PBT Document 1 Filed 11/03/20 Page 2 of 14

/s Andrew Teitelman

/s Andrew Teitelman
 Case 2:20-cv-05477-PBT Document 1 Filed 11/03/20 Page 3 of 14

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(Philadelphia Division)

KATHY BARNETTE, individually and as a candidate

for Pennsylvania’s 4th Congressional District and on
behalf of all citizen electors of Montgomery County
and Berks County, Pennsylvania,

and

CLAY D. BREECE, individually and as an elector in

that portion of Pennsylvania’s 4th Congressional
District located in Berks County, and on behalf of all
citizen electors of Berks County, Pennsylvania within
Pennsylvania’s 4th Congressional District

Plaintiffs,

v.

KENNETH E. LAWRENCE JR., Chair of the

Montgomery County Board of Elections and Vice COMPLAINT
Chair of the Montgomery County Board of
Commissioners, in his official capacity, Civil Action No.

VALERIE A. ARKOOSH, MD, MPH, Vice Chair of

the Montgomery County Board of Elections and Chair
of the Montgomery County Board of Commissioners,
in her official,

FRANK DEAN, Mail-In Election Director for

Montgomery County, in his official capacity.

Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTORDUCTION

Not all counties in the Commonwealth of Pennsylvania are giving voters the same

opportunity to vote, jeopardizing the integrity of the 2020 election. In Montgomery County, the

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Board of Elections is not only deviating from the standards set forth in the Pennsylvania Election

Code, they have substituted and are implementing their own arbitrary standards by illegally pre-

canvassing mail-in ballots received before November 3rd and, in certain instances, providing the

electors submitting such illegally pre-canvassed ballots that are found to be deficient an

opportunity to re-vote on or before November 3rd. The photograph below shows some of the

more than 3,900 pre-canvassed ballots literally sitting in the main public hallway of the

Montgomery County Health and Human Services Building (where, in another part of the

building, the two rooms being used for the canvassing of mail-in ballots is located):1

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This “Ballots for Sale” photo was taken on 11/01/2020 by Robert Gillies during a tour of the
Montgomery County mail-in ballot storage and canvass facility.

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The ballots are near the main entrance of the building and are easily accessible by anyone

entering or leaving the facility, whether county employees of members of the public. The

Pennsylvania Election Code expressly prohibits counties from pre-canvasing any ballots,

including absentee and mail-in ballots, before 7:00 a.m. on Election Day. 25 § P.S.

3146.8(g)(1.1). The Supreme Court of Pennsylvania stated: “[U]nlike in-person voters, mail-in

or absentee voters are not provided an opportunity to cure perceived defects in a timely

manner.” In re: November 3, 2020 General Election, No. 149 MM 2020, *12 (Pa. Oct., 23,

2020). Part of the Supreme Court’s rationale is tied to the equal treatment of voters. While

Berks County, some of whose electors, including plaintiff Breece, share the Pennsylvania 4th

Congressional District with the majority of Montgomery County electors, is adhering to the

Election Code and the Supreme Court’s ruling, Montgomery County is pre-canvasing mail-in

and absentee ballots, before 7 a.m. on Election Day, detecting defects in these ballots, and

contacting some mail-in or absentee voters to change their ballots.

To make matters worse, the Montgomery County Board of Elections is restricting the

ability of candidates and their representatives, the parties and their representatives and other

legally constituted watchers (the “Canvass Watchers”) to observe the entire canvass process for

the mail-in and absentee ballots by:

1. Using two rooms instead of one, but only allowing the Canvass Watchers to be in

a tiny holding pen at the edge of the room where the ballots will be scanned. The holding pen

does not even afford a sufficient view of all of the ballot scanners and operators and, at best a

highly obstructed view of the room where the ballot envelopes are opened and no view of the

area where a committee chosen by the Election Board will make the decisions about the

legality/staleness of ballots - - affording the Canvass Watchers no opportunity to observe and

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protect any objection(s) they may have.

2. Providing a single 40” flat screen television in the holding pen so the Canvass

Watchers permitted to be in the pen can see views obtained from approximately 12 ceiling

cameras located throughout the two rooms that are supposed to be a substitute for actually

observing the entire canvass process.

3. The vast majority of the Canvass Watchers will not even be able to be in the

holding pen and will be relegated to a remote “overflow room” that has two 40” flat screen

televisions meant to be a substitute view for the entire canvassing process.

These blatant failures to adhere to Election Code were made known to the Board of

Elections by plaintiff Barnette through her counsel’s letter dated November 1, 2020, a copy of

which is attached hereto as Exhibit A. That letter followed Barnette’s letter of October 31, 2020,

(attached hereto as Exhibit B), where she requested that the Board of Elections supply her with

the written procedures they will employ regarding the handling, security, chain of custody and

canvass of the mail-in and absentee ballots and, also requesting that they be permitted to make a

video recording of the process, while painstakingly adhering to privacy and security concerns.

Barnette’s requests were ignored, brushed off or red-taped into oblivion by the response of the

Election Board via County Solicitor Josh Stein’s letter of November 2, 2020, a copy of which is

attached hereto as Exhibit C, along with the email exchanges between the parties related thereto.

Montgomery County’s failure to comply with the Election Code and the Supreme Court’s

holding results in the disparate treatment of voters in violation of the Equal Protection Clause of

the Fourteenth Amendment. Equivalent votes in different counties and amongst similarly

situated Montgomery County electors are being treated differently. Pennsylvania voters should

not be treated differently based on the county where they are required to vote.

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PARTIES, JURISDICTION, AND VENUE

1. Plaintiff, Kathy Barnette, is a resident of the Commonwealth of Pennsylvania,

residing in Montgomery Country, and is an elector therein and a candidate for the Fourth

Congressional District in Pennsylvania.

2. Plaintiff, Clay D. Breece, is a resident of the Commonwealth of Pennsylvania,

residing in Berks County, and is an elector for the Fourth Congressional District in Pennsylvania.

3. Defendant, Montgomery County Board of Elections is responsible for overseeing

the conduct of elections in Montgomery County, including the conduct of election personnel at

polling locations throughout the county.

4. Defendant, Kenneth E. Lawrence, Jr., is the Chairman of the Board of Elections

and the Vice Chair of the Montgomery County Board of Commissioners and is sued in his

official capacity.

5. Defendant, Valerie A. Arkoosh, MD, MPH, is the Vice Chair of the Board of

Elections and Chair of the Montgomery County Board of Commissioners and is sued in her

official capacity.

6. Defendant, Frank Dean, is the Montgomery County Director of Mail-In Voting

and is sued in his official capacity.

7. This Court has jurisdiction of this matter pursuant to 42 U.S.C. § 1983 and 28

U.S.C. § 2201.

8. Venue is proper under 28 U.S.C. § 1391(b).

BACKGROUND

9. The Pennsylvania Election Code states: “The county board of elections shall meet

no earlier than seven o’clock A.M. on election day to pre-canvass all ballots received prior to the

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meeting.” 25 P.S. § 3146.8(g)(1.1.).

10. “The word ‘pre-canvass’ shall mean the inspection and opening of all envelopes

containing official absentee ballots or mail-in ballots, the removal of such ballots from the

envelopes and the counting, computing and tallying of the votes reflected on the ballots. The

term does not include the recording or publishing of the votes reflected on the ballots.” 25 P.S. §

102(q.1).

11. “A county board of elections shall provide at least forty-eight hours’ notice of a

pre-canvass meeting by publicly posting a notice of a pre-canvass meeting on its publicly

accessible Internet website.” 25 P.S. § 3146.8(g)(1.1.).

12. And, “one authorized representative of each candidate in an election and one

representative from each political party shall be permitted to remain in the room in which the

absentee ballots and mail-in ballots are pre-canvassed. No person observing, attending or

participating in a pre-canvass meeting may disclose the results of any portion of any pre-canvass

meeting prior to the close of the polls.” Id.

13. During the pre-canvasing, the county board first “shall examine each ballot cast to

determine if the declaration envelope is properly completed and to compare the information with

the information contained in the ‘Registered Absentee and Mail-in Voters File.’” 25 P.S. §

3146.8(g)(3).

14. Then the board “shall open the envelope of every unchallenged absentee elector

and mail-in elector in such manner as not to destroy the declaration executed thereon.” 25 P.S. §

3146.8(g)(4)(i).

15. “If any of the envelopes on which are printed, stamped or endorsed the words

‘Official Ballot Election contain any text, mark or symbol which reveals the identity of the

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elector, the elector’s political affiliation or the elector’s candidate preference, the envelopes and

the ballots contained therein shall be set aside and declared void.” 25 P.S. § 3146.8(g)(4)(ii).

16. Finally, the county board “shall then break the seals of such envelopes, remove

the ballots and count, compute and tally the votes.” 25 P.S. § 3146.8(g)(4)(iii).

17. The Montgomery County Board of Elections has verified that, in contravention of

Pennsylvania’s Election Code, Montgomery County officials began pre-canvassing before

November 3, 2020, by inspecting newly received mail-in ballots and/or absentee ballots and

noting any defects such as defects in declarations or a missing inner envelope also known as a

“secrecy envelope.” Email from Joshua M. Stein, Esquire to Julia Vahey, 10/31/20; Email from

Frank Dean (Dean) to Lee Soltysiak and Josh Stein, 10/31/20 (hereinafter “Ex. D”); Excel

spreadsheet attached to Email from Dean to Lee Soltysiak and Josh Stein, 10/31/20 (hereinafter

“Ex. E”).

18. Specifically, in his October 31, 2020 e-mail, Dean sent the “latest list of ballots

with defects” to Lee Soltysiak and Josh Stein and wrote: “If the defect is an Incomplete

Declaration or Missing Secrecy Envelope, the voter need only come to 1430 DeKalb Street,

Norristown, PA 19401. They will be given the opportunity to correct their declaration or we will

provide them with a secrecy envelope, which they can insert and reseal inside the Ballot Return

Envelope.” Ex. D.

19. Dean further wrote: “For the remainder of defects, the voter needs to go to Voter

Services, One Montgomery Plaza, 425 Swede Street, Suite 602, Norristown, PA 19404 and

request a Cancel/Replace.” Ex. D.

20. The Supreme Court of Pennsylvania stated: “[U]nlike in-person voters, mail-in or

absentee voters are not provided an opportunity to cure perceived defects in a timely

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manner.” In re: November 3, 2020 General Election, No. 149 MM 2020, at *12.

21. The Excel spreadsheet attached to Dean’s October 31, 2020 e-mail indicates that

Montgomery County began pre-canvassing as early as October 21, 2020, based on start and end

times in the spreadsheet, and contacted some but not all voters with defects in their ballots. Ex.

E.

22. Dean’s October 31, 2020 e-mail and Excel spreadsheet demonstrates that

Montgomery County engaged in pre-canvassing prior to 7:00 a.m. on Election Day by inspecting

absentee and/or mail-in ballots. Exs. A & B. Dean’s Excel spreadsheet specifically notes ballots

have defective declarations and lack a secrecy envelope. Ex. E.

23. Montgomery County never provided public notice 48 hours prior to engaging in

pre-canvassing.

24. Montgomery County deprived one authorized representative from each candidate,

including Barnette, and each party from being in the room in which the mail-in and absentee

ballots are pre-canvassed.

25. Montgomery County also essentially unlawfully disclosed a portion of a pre-

canvass meeting prior to the close of the polls.

26. Montgomery Count allowed voters to change their ballots by, for example,

changing their declarations or adding a secrecy envelope in the Ballot Return Envelope.

27. Upon information and belief, Berks County has not deviated from the Election

Code standards by adding their own language or engaging in pre-canvasing or limiting the ability

of their Canvass Watchers to actually observe the entire canvass of the mail-in and absentee

ballots in that county; and does not intend pre-canvass or canvass such ballots prior to 7:00 a.m.

on Election Day. Unlike the Montgomery County Board of Elections, the Berks County Board

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of elections has provided public notice and stated: “Due notice is hereby given that the pre-

canvass of mail-in and absentee ballots will commence on November 3, 2020 at 7:00AM,

Doubletree by Hilton Hotel Reading, 701 Penn Street, Reading, PA 19601.” Berks County

Public Notice of Pre-Canvassing, https://www.co.berks.pa.us/Dept/Elections/Pages/default.aspx

(last visited Nov. 2, 2020).

28. Berks County in Pennsylvania is following the Election Code by (a) refraining

from pre-canvasing until 7:00 a.m. on Election Day and (b) not providing electors an opportunity

to change their ballots after submitting the ballots to Berks County. They are also providing their

Canvass Watchers a full and fair opportunity to observe the entire canvass process, unlike

Montgomery County.

29. Montgomery County’s actions violate the Election Code of Pennsylvania, the

Supreme Court of Pennsylvania’s holding, and the Equal Protection Clause of the Fourteenth

Amendment.

30. As a result of Montgomery County’s actions, similarly situated voters are being

treated differently based on the county where they are required to vote. In other words,

equivalent votes in different counties are being treated differently.

31. In Bush v. Gore, 531 U.S. 98, 104-05 (2000), the Court determined that Florida’s

disparate method of determining a legal vote amounted to an unconstitutional abridgment of the

right to vote. The Supreme Court held that “[h]aving once granted the right to vote on equal

terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over

that of another.” Id. (citing Harper v. Va. Bd. of Elections, 383 U.S. 663, 665 (1966) (“[O]nce

the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the

Equal Protection Clause of the Fourteenth Amendment.”).

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32. At this juncture, in order to make sure that voters in Berks County and

Montgomery County are treated equally, Defendants must set aside and declare void any ballots

that have been submitted to Montgomery County and subsequently changed.

33. Currently, the Montgomery County Board of Elections has identified at least

1,200 electors as of Dean’s October 31, 2020 e-mail, who submitted a defective mail-in or

absentee ballot. Plaintiff does not challenge Montgomery County’s actions with respect to any

mail-in or absentee ballot that was not submitted by the voter.

34. Defendants have exalted Montgomery County mail-in and absentee voters over

other voters such as voters in Berks County in the Commonwealth of Pennsylvania.

35. Plaintiff is running as the candidate in the 4th Congressional District for the

Republican Party, and she will be at a significant disadvantage as the 4th Congressional District

consists of both Montgomery County and Berks County. A vote that could count in

Montgomery County will not count in Berks County because of the decisions made by

Defendants in violation of Pennsylvania’s Election Code and the Supreme Court of

Pennsylvania’s holding.

36. In short, the Montgomery County Board of Elections practice is unlawful and

unconstitutional, and it should be stopped.

37. The standard being applied by Montgomery County Election Board will result in

similarly situated electors in Montgomery County, whose ballots have the same kinds of

disqualifying issues that would render them stale, but which are detected on or after November

3rd, from those whose ballots are shown in the Ballots for Sale photo who the county will permit

to revote if they show up on or before November 3rd. And, the improper pre-canvass and

opportunity to revote given to some Montgomery County electors is not being offered at all - -

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and properly so, by the Berks County Board of Elections, resulting in their 4th Congressional

District electors being treated differently from the Montgomery County electors whose ballots

were pre-canvassed prior to 11/03. None of the electors from either county should be permitted

to revote and none of their ballots should have been pre-canvassed in any event.

COUNT I
Violation of the Fourteenth Amendment of the Constitution of the
United States of America

38. The allegations set forth in the foregoing paragraphs are incorporated herein as

though set forth at length.

39. The Board’s action presents not only a problem under Pennsylvania’s Election

Code but it violates the Equal Protection Clause of the Fourteenth Amendment. Bush v. Gore,

531 U.S. 98, 104-05 (2000) (“[H]aving once granted the right to vote on equal terms, the State

may not, by later arbitrary and disparate treatment, value one person’s vote over that of

another.”)

40. The Montgomery County Board of Elections has placed Montgomery County

mail-in and absentee voters on a pedestal by engaging in pre-canvassing of absentee or mail-in

ballots prior to 7:00 a.m. on Election Day, by contacting select voters to notify them that they

may change their ballot, and by permitting select voters to change their ballots.

41. Plaintiff has no adequate remedy at law and will suffer serious and irreparable

harm to their constitutional rights unless Defendants are enjoined and compelled to enforce the

mandates of the Election Code.

PRAYER FOR RELIEF

WHEREFORE, plaintiffs respectfully request that this Court enter an Order:

a. Enjoining the defendants and anyone acting on their behalf from pre-canvassing

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ballots before 7:00 a.m., Tuesday, November 3, 2020.

b. Enjoining the defendants and anyone acting on their behalf from contacting any

elector whose mail-in ballot or absentee ballot contains perceived and actual defects and

allowing the elector to change their ballot.

c. Setting aside, sequestering and declaring spoiled any mail-in or absentee ballots

that have been changed by an elector or otherwise not conforming with the Election Code;

d. Declaring the defendants’ conduct unconstitutional;

e. Awarding Plaintiff’s attorneys fees and costs under 42 U.S.C. § 1983, 1988; and

f. Awarding Plaintiff any other appropriate relief.

Dated: November 3, 2020 Respectfully submitted,

/s/ Andrew Teitelman

Andrew Teitelman
PA ID No. 43545
Law Offices of Andrew Teitelman P.C.
380 Red Lion Rd Ste 103
Huntingdon Valley, PA, 19006
Tel: 267-255-6864 Fax: 215-434-7491
Email: [email protected]

/s/ Thomas E. Breth

Thomas E. Breth
PA ID No. 66350
Dillon McCandless King Coulter & Graham
LLP
128 West Cunningham Street
Butler, PA. 16001
724-283-2200

Counsel for Plaintiffs

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