After three hours of testimony and legal arguments, no decision was made Thursday on state Rep. Michael Cabell’s request for judges to count one provisional ballot, reject another and tally any write-in votes in his tight race for the Republican nomination.
Three votes separate the party’s two April 23 primary election contenders in the 117th District, with Cabell’s opponent, Jamie Walsh, in the lead, according to unofficial results.
County Court of Common Pleas Judges Tina Polachek Gartley, Richard M. Hughes III and Fred A. Pierantoni III presided over the hearing.
The panel gave county Assistant Solicitors Gene Molino and Paul Radick until noon Monday to submit a legal brief presenting arguments on behalf of the county’s five-citizen Election Board, particularly related to the write-in issue.
Cabell, who was not in attendance and was represented by Philadelphia attorney, Shohin H. Vance, will then have until 4:30 p.m. Tuesday to reply to the county’s filing.
Walsh, who represented himself pro se, or without legal counsel, during Thursday’s proceeding, also will have an opportunity to submit a filing to the court during this window.
Gartley, who chairs the court panel, said the judges are aware “time is clearly of essence.”
“We will move quickly and efficiently upon receipt of your filings,” she said.
The pending challenge over provisional ballots must delay Monday’s certification of the primary election results, county Manager Romilda Crocamo announced Thursday.
The provisional ballot portion of Cabell’s challenge focuses on a Lake Township ballot that had been accepted by the election board and a Butler Township ballot the board had rejected.
Both impacted voters — Timothy J. Wagner and Shane O’Donnell — testified Thursday.
On the matter of write-in votes, Vance said he does not know if there are any write-in votes for Cabell because the board did not itemize them. There may be none.
The board’s argument is the law allows voters to select someone named on the ballot or write in the name of someone else.
County Acting Election Director Emily Cook testified there are approximately 22 write-in votes that were lumped into a general “scattered” category in the Republican 117th District race because there were not enough write-in votes to surpass either of the candidates on the ballot.
Lake Township
Voters are instructed to sign in two places on the outer provisional ballot envelope — first to affirm the ballot is the only one they are casting and second after they have filled out the ballot and inserted it in a secrecy envelope. The post-completion signature was missing in this case.
Vance said this signature is mandatory, citing an unpublished Commonwealth Court opinion.
Molino said there also is a Delaware County Court of Common Pleas opinion that takes the opposite view from the opinion cited by Vance, favoring the acceptance of such ballots.
Election Board Chairwoman Denise Williams testified the board has consistently accepted provisional ballots missing one of the two signatures when everything else was in order.
Wagner, an honorably discharged veteran who served during the Vietnam War, testified that he had to vote with a provisional paper ballot at the polls because he was recorded as receiving a mail ballot.
Cook verified a requested mail ballot had been issued to him but never returned.
Wagner said the polling place worker set up the provisional packet at a table and gave him instructions.
He said he was frustrated with the provisional process, especially when he saw some friends there looking puzzled about why he wasn’t voting on the ballot marking devices.
Wagner said he just wanted to vote, especially for Donald Trump, prompting cheers in the courtroom largely filled with Republicans — primarily Walsh supporters.
He also prompted audience chuckles when he described his struggle sealing the secrecy and outer envelopes because his mouth was so dry.
Wagner said he couldn’t remember the outer envelope signature part of the process.
Vance asked how Wagner learned about the court proceeding, and he said from Walsh.
The elderly Wagner’s personality was a crowd pleaser, and he received another round of applause when he completed his testimony.
Butler Township
In the second appeal, Cabell argued the ballot of O’Donnell, his cousin, should be counted in Butler Township District 3 because he did not officially relocate to Schuylkill County until March 29, and there is a 30-day window to vote at a prior residence preceding an election.
The board had rejected this ballot during adjudication as part of a batch from people not registered to vote in the county.
In his appeal, Cabell said O’Donnell changed his vehicle registration to the Schuylkill County address in December 2023 but retained his Butler Township address on his driver’s license and lived in Butler Township until March 29. It said he was “surprised to learn” he was no longer registered in Butler Township on Election Day.
O’Donnell, 29, repeated all those details on the stand and said he has voted as often as he could since turning 18 because he believes his vote matters.
Until March 29, he said he lived and slept in a Butler Township mobile home he leased with his mother.
O’Donnell said he changed his one-year vehicle registration to the new address the end of December because he knew he would be relocating within a year. He did not recall checking any boxes on the vehicle registration that would also change his voter registration address or receiving anything from Schuylkill County informing him he was now registered there.
Cook testified motorists must click on a box on the state transportation department vehicle registration renewal site if they don’t want to change their voter registration address while updating their vehicle registration address.
Vance said the 30-day window to vote at a prior address is based on residence, not vehicle registration, and no evidence was presented asserting that O’Donnell moved before March 29.
Molino said he would agree with this interpretation if O’Donnell had not registered to vote in Schuylkill County.
Write-ins
Vance apologized for his court filing implication that there were five write-in votes for Cabell in this election. He told the judges the five Cabell name variations he listed were based on past write-ins Cabell had received in the 2022 election.
He argued the board’s refusal to review and cumulate the 22 Republican write-in votes in the 117th District must be reversed because “that decision contravenes clear precedent from the Pennsylvania Supreme Court.”
Molino said that ruling no longer matters because state legislators subsequently adopted standards developed by the Voting Standards Development Board on what constitutes a vote that include not counting write-ins for candidates when they appear on the ballot in a race.
Walsh argued in court that Cabell should have filed a challenge seeking a write-in tally earlier in the process, based on the board’s clear adjudication schedule.