As promised, Jamie Walsh filed an appeal Wednesday to the Pennsylvania Supreme Court over two provisional ballots in his tight Republican race for state representative against incumbent Michael Cabell.
Cabell later blasted Walsh for the decision and called for him to drop the appeal to the state Supreme Court.
Meanwhile, the state Supreme Court acted swiftly, giving Cabell and the Luzerne County Election Board until 2 p.m. Thursday to file an answer to Walsh’s filing or to indicate that no response will be presented.
The state Supreme Court has discretion over whether it agrees to take on the case.
Walsh is contesting a Commonwealth Court decision that granted 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 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.
Regarding Wagner’s ballot, Cabell argued it should not be counted because Wagner 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.”
While all three Commonwealth Court judges concurred on accepting O’Donnell’s ballot, the decision was 2-1 on Wagner’s ballot.
Two — 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’s appeal — formally called a “petition for allowance of appeal” — was filed by his new legal counsel, Lititz-based Attorney J. Chadwick Schnee, of Schnee Legal Services.
It’s expected O’Donnell’s vote was for Cabell, while Wagner has stated he selected Walsh.
Cabell and Walsh are currently three votes apart in the 117th District race, with Walsh in the lead.
The county election board has scheduled an adjudication session at 9:30 a.m. Friday to open and tabulate 12 provisional ballots in the race that are no longer subject to appeals.
Cabell response
Cabell issued a statement Wednesday afternoon about Walsh’s appeal and election integrity.
“Throughout this entire election, I have steadfastly adhered to every election law, ensuring a campaign grounded in integrity and respect for our democratic process. Regrettably, my opponent, Jamie Walsh, has chosen a different path, aligning with left-wing Democrats and deliberately undermining our election process,” Cabell’s statement said.
Walsh’s decision to appeal the Commonwealth Court’s ruling on mandating proper voter signatures on a provisional ballot is “a blatant attempt to subvert the will of the voters,” the statement said.
“His appeal is driven solely by the fact that the ballot in question would benefit him, a move that threatens to sow chaos in the 2024 election,” Cabell wrote.
“For the sake of our democratic principles and the integrity of our elections, I call on Jamie Walsh to withdraw his appeal immediately,” Cabell wrote. “Our Republic depends on the fair and lawful conduct of our elections, and I am committed to upholding these principles at ever turn.”
Walsh reiterated the Luzerne County Election Board, county Court of Common Pleas panel and one member of the three-judge Commonwealth Court panel had agreed Wagner’s ballot should be counted.
“The fact that Mr. Wagner’s vote is in question due to unclear guidance at the polling location is no fault of his own, and I am fighting this in order to enfranchise Mr. Wagner,” Walsh said.
“The only person trying to benefit from a questionable ballot is Mike Cabell himself, who succeeded in getting a ballot counted from someone registered to vote in a different county,” Walsh asserted.
New filing
Walsh’s appeal to the Supreme Court said Wagner’s ballot should be counted because he demonstrated “exceedingly clear” electoral intent and acted in conformity with instructions of election officials.
Wagner had testified he followed the instructions of a senior election worker at his polling place on how to complete the provisional ballot and accompanying envelope, it said.
The filing argues O’Donnell’s Butler Township ballot should be rejected because he was “domiciled and registered to vote elsewhere.”
It asserted testimony and evidence shows O’Donnell had voluntarily changed his voter registration to the McAdoo property in December 2023.
O’Donnell was not disenfranchised because he could have voted at his new residence but chose not to, it said.
For background, O’Donnell has said he was unaware he selected an option to change his voter registration address when he updated his vehicle to the future address during his vehicle registration renewal.
Walsh’s filing challenges the specifics of O’Donnell’s residency and said his physical move to Schuylkill County on March 29 “is of no importance as he had already signaled his intent to be domiciled in Schuylkill County as of December of 2023.”
“Just because O’Donnell — respondent’s cousin — claimed he resided in Luzerne County does not make it so,” it said.
To highlight the significance of the request before the state Supreme Court, Walsh’s filing notes the three-vote difference in the race and Friday’s tallying of the 12 other provisional ballots.
“Due to the razor-thin margin of votes, the outcome of this petition may very well decide which candidate appears on the 2024 general election ballot,” it said.
The filing cites several examples of Pennsylvania Rules of Appellate Procedure provisions that could permit the state Supreme Court to take on this matter, including:
• A holding of the intermediate appellate court that conflicts with one from the state Supreme Court on the same legal question.
• A presented question that is “one of such substantial public importance as to require prompt and definitive resolution by the Pennsylvania Supreme Court…”
An answer is needed on the question of whether counties should count provisional ballots missing a signature, it said.
“The public importance of this question is especially amplified with respect to the upcoming presidential election, and, if not decided now, will undoubtedly be litigated in the wake of this year’s general election,” the filing said.