Jamie Walsh has received legal backing from several entities in his Pennsylvania Supreme Court appeal over two provisional ballots in the tight April 23 primary election Republican race for 117th District state representative against incumbent Mike Cabell, according to briefs filed Wednesday.
Walsh is seeking reversal of a Commonwealth Court decision granting Cabell’s request to reject Lake Township voter Timothy J. Wagner’s ballot and accept a Butler Township ballot cast by Cabell’s cousin, Shane O’Donnell.
In addition to Walsh’s own Wednesday filing presenting legal arguments for his position, the following submitted briefs related to one or both provisional ballots:
• The Democratic National Committee and Pennsylvania Democratic Party argued Wagner’s ballot should be accepted.
• The Pennsylvania Department of State argued for the acceptance of Wagner’s ballot and the rejection of O’Donnell’s.
• The Luzerne County Election Board, which is a named party in the appeal, argued in support of its original decision to accept Wagner’s ballot and reject O’Donnell’s.
Cabell has a seven-day deadline to file a response brief under the state Supreme Court’s expedited scheduling.
Walsh has an unofficial five-vote lead over Cabell, which means there’s no way for Cabell to overcome that difference through the two provisional ballots that are now the only matter awaiting adjudication. All other votes have been processed.
However, Walsh’s appeal is drawing attention from other outside parties because the resulting state Supreme Court ruling could have a bearing on future election decisions.
Walsh’s request for the state Supreme Court to take up the matter had emphasized this point, saying an answer is needed on the question of whether counties should count provisional ballots missing a signature.
“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,” his filing had said.
Cabell argued Wagner’s 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 county Court of Common Pleas judge panel had affirmed the county’s election board’s decision to accept 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.”
Filed by attorneys in Pittsburgh and Washington, D.C., the state and national Democratic party brief said it was being filed because they “have a particular interest in ensuring that eligible voters who follow election officials’ voting instructions in good faith are not denied their fundamental right to vote by having their ballots discarded.”
The state Supreme Court’s ruling on the Wagner ballot also could impact the resolution of another pending Commonwealth Court case related to the disqualifying of mail ballots due to voters failing to write the correct date, the filing said.
Past state Supreme Court determinations that a variety of inadvertent technical errors by eligible voters were “insufficient to justify discarding their timely cast ballots, applies with special force to the unusual facts here,” the Democratic party’s brief said in reference to Wagner.
It points to undisputed evidence that Wagner followed the instructions of the senior polling place election worker administering the provisional ballot process and that an election worker later confirmed his ballot had been accepted when he inquired.
Butler Township provisional
Cabell 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.
O’Donnell has said he was unaware he selected an option to change his voter registration address to McAdoo in December 2023, when he updated his vehicle to the future address during his vehicle registration renewal.
The county Election Board had rejected his ballot as part of a batch from people not registered to vote in the county.
A three-judge county Court of Common Pleas panel agreed with the board’s decision, saying O’Donnell was not disenfranchised because he could have voted at his new residence but chose not to.
However, the three-judge Commonwealth Court panel said O’Donnell’s ballot must be accepted, indicating 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.
Walsh’s lengthy Wednesday brief, prepared by Lititz-based Attorney J. Chadwick Schnee, of Schnee Legal Services, said O’Donnell’s Butler Township ballot should be rejected because “the record establishes that he was domiciled elsewhere more than 30 days prior to the 2024 primary election.”
“In the present case, Mr. O’Donnell lost his residence (for purposes of the Election Code) at the time he purchased a home in Schuylkill County, transferred his vehicle registration and transferred his voter registration to that county, as he, according to the trial court, was temporarily residing with his mother and brother while renovations were underway at his domicile in Schuylkill County,” Walsh’s filing said. “The fact that O’Donnell physically moved into his domicile in Schuylkill County from his temporary residence on March 29, 2024 is of no importance as he had already signaled his intent to be domiciled in Schuylkill County as of December of 2023.”
Wagner has said he selected Walsh, and it’s assumed O’Donnell’s vote is for 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.
The now three-month 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 primary.