PA Supreme Court declines to hear write-in appeal sought by Mike Cabell

The Pennsylvania Supreme Court has declined to hear Mike Cabell’s appeal regarding write-in votes in his tight April 23 primary election Republican race for state representative against Jamie Walsh in the 117th Legislative District, according to an order issued Thursday.

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, the incumbent.

It’s unclear if any Republicans wrote the names of Cabell or Walsh because the county election board did not itemize the 22 write-ins for that contest.

The election board has long held the position the law allows voters to select someone named on the ballot or write in the name of someone else. Luzerne County Court of Common Pleas and Commonwealth Court panels both concurred with the election board’s decision.

Cabell has argued he must receive credit for write-ins, if any, due to a past state Supreme Court opinion.

The election board’s legal counsel said the tallying of write-in votes for a person whose name already appears on the ballot as a candidate is not permitted by the state Election Code and standards adopted by the Voting Standards Development Board that have the “force and effect of law.”

Cabell’s petition for allowance of appeal to the state Supreme Court continued legal arguments asserting the election board must record and cumulate the write-in votes and that Commonwealth Court erred in its conclusion.

Thursday’s state Supreme Court order said simply that Cabell’s petition seeking an appeal was denied.

The decision came a day after the state Supreme Court issued an order stating it will hear Walsh’s appeal over two provisional ballots.

Walsh is seeking reversal of a Commonwealth Court decision granting 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.

Wagner has said he selected Walsh, and it’s assumed O’Donnell’s vote is for Cabell.

Walsh is seeking rejection of O’Donnell’s ballot and acceptance of Wagner’s ballot.

The state Supreme Court order said the two-ballot provisional 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 the remaining appeal request in the 117th District race regarding Walsh’s effort to remove 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.

Thursday’s ruling makes it more likely Walsh will maintain his lead because write-ins were the only outstanding issue not quantified. The potential write-in votes for either candidate, if any, were unknown because the names voters wrote were not itemized.

With the provisional ballots, the most Cabell can expect to gain is one vote.

And because the six mail ballots contested by Walsh were already factored into the tally, a state Supreme Court decision, if entertained, could keep the tally the same or deduct votes for both, but mostly Cabell.

Cabell has not yet announced a decision on whether he will seek a recount, which is an option he had said his campaign was exploring.

Walsh said Thursday he is grateful for the Supreme Court decision and believes the court “got this right.”

“I believe it’s time now for Mike Cabell to concede,” Walsh said.

Cabell could not immediately be reached for comment Thursday.

The current battle over the Republican nomination could be the determination of which candidate is seated in the 117th District because no Democratic contenders surfaced in the April 23 primary election.