The Pennsylvania Supreme Court has agreed to hear Jamie Walsh’s appeal over two provisional ballots in his tight April 23 primary election Republican race for state representative against incumbent Mike Cabell in the 117th Legislative District.
The state Supreme Court has discretion over whether it agrees to weigh in on such appeals.
In the latest unofficial results, Walsh has a five-vote lead over Cabell.
Regarding the provisional ballots, Walsh is contesting a Commonwealth Court decision that granted Cabell’s request 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.
Walsh is seeking the opposite: rejection of O’Donnell’s ballot and acceptance of Wagner’s ballot.
Wagner has said he selected Walsh, and it’s assumed O’Donnell’s vote is for Cabell.
Cabell’s legal counsel had argued O’Donnell’s ballot 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, the 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.
The Luzerne County Court of Common Pleas judge panel had affirmed the county’s election board’s decision to count Wagner’s ballot, saying the state 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 has said he believes Commonwealth Court erred on both decisions.
“I am thankful that the Supreme Court is taking this under advisement, especially regarding the disenfranchisement of Mr. Wagner,” Walsh said Wednesday.
Wednesday’s state Supreme Court order said the matter will be submitted based on legal briefs. Walsh’s brief is due within seven days of Wednesday’s order. Cabell will then have seven days after Walsh’s filing to submit a brief. No reply briefs will be accepted, it said.
“Given the expedited schedule, no briefing extensions will be entertained,” the order said.
The state Supreme Court has not yet issued a decision on whether it will accept two other appeal requests.
Cabell filed a petition of allowance for appeal seeking the tallying and crediting of write-in votes, if any, in the race.
Walsh also filed a petition seeking the removal of six mail ballot votes from the current unofficial tally because the voters did not fill in the last two digits of the year on the outer envelope. Most of these votes were for Cabell.
The current battle over the Republican nomination likely will be the determination of which candidate is seated in the 117th District. Because no Democratic contenders surfaced in the April 23 primary election, it appears the Republican nominee will be unopposed in the November general.