Jamie Walsh said Tuesday morning he is appealing a ruling over two provisional ballots to the Pennsylvania Supreme Court in the tight April 23 primary election Republican race for state representative in the 117th Legislative District.
He is contesting a Commonwealth Court decision granting incumbent opponent Michael Cabell’s appeal to count a Butler Township ballot cast by Cabell’s cousin, Shane O’Donnell, and reject a ballot cast by Lake Township voter Timothy J. Wagner.
Cabell’s legal counsel had argued the ballot of O’Donnell, Cabell’s cousin, should be counted because he did not officially relocate to McAdoo borough in Schuylkill County until March 29, and there is a 30-day window to vote at a prior residence preceding an election.
Luzerne County’s Election Board had rejected O’Donnell’s ballot as part of a batch from people not registered to vote in the county, and a three-judge Luzerne County Court of Common Pleas panel agreed with the board’s decision. However, a three-judge Commonwealth Court panel said O’Donnell’s ballot must be accepted, saying the facts show O’Donnell would not have been permitted to vote in McAdoo because he did not reside there at least 30 days preceding the election.
Cabell argued Wagner’s provisional ballot should not be counted because he did not sign the outer envelope a second time when handing it in at the polling place.
A Luzerne County Court of Common Pleas judge panel had affirmed the county’s election board’s decision to count Wagner’s ballot, saying the Pennsylvania Supreme Court “has repeatedly recognized the need to construe the Election Code liberally in favor of enfranchisement where fraud is not an issue and a voter’s intent is clear.”
Two of the Commonwealth Court judges — a majority — said the acceptance of Wagner’s ballot must be reversed due to the mandatory signature requirement in state law. The remaining judge dissented, citing Wagner’s “exceedingly clear” electoral intent and the state Supreme Court’s recent reinforcement of a long-standing principle that the election code should be liberally construed in election appeals “so as to not deprive electors of their right to elect a candidate of their choice.”
Walsh said Tuesday he feels a sense of duty to appeal to the state Supreme Court, which will have discretion over whether it agrees to take on the case.
“I am filing an appeal to the PA Supreme Court challenging the disenfranchising of a resident’s ballot and the improper tabulation of a non-resident ballot,” Walsh said.
Walsh said his appeal will be handled by his new legal counsel, Lititz-based Attorney J. Chadwick Schnee, of Schnee Legal Services. He expects the appeal will be filed by the end of business Wednesday.
He had held off on commenting about the Commonwealth Court ruling issued last week until he had an opportunity to meet with legal counsel and said he is now ready to offer his assessment:
“I felt that the Commonwealth Court erred on both decisions, where in one breath the Commonwealth Court said it didn’t want to disenfranchise anyone and then disenfranchised Mr. Wagner,” Walsh said.
Walsh currently has a three-vote lead over Cabell, but there are 12 provisional ballots not yet opened and tallied — in addition to the ones cast by O’Donnell and Wagner.
Processing of these provisional ballots was put on hold until appeals were exhausted, and the board planned to meet Friday to open them if no appeal was filed before Thursday’s deadline.
County officials have said the remaining 12 must be set aside pending the outcome of appeals, so it is unclear if the board will still be able to proceed Friday.
Walsh said Tuesday he believes the 12 should still be opened Friday because those 12 are no longer contested by any candidates.
Check back later for updated coverage.