Dallas City News

The wait is on for Commonwealth Court rulings in the tight race for the Republican 117th House District contest because all required court briefs have been filed.

Incumbent Michael Cabell and challenger Jamie Walsh are currently three votes apart, with Walsh in the lead. The Republican April 23 primary victor is essentially assured the seat because there were no Democratic candidates or write-in nominees to appear on the November general ballot.

Three appeals of county Court of Common Pleas decisions are pending in Commonwealth Court.

Walsh is trying to throw out six already-tallied mail ballots because the voters did not fill in the last two digits of the year on the outer envelope.

Cabell is seeking the tallying of one paper provisional ballot and rejection of another. He also appealed a county court ruling denying the counting of Republican write-in ballots cast for him, if there are any in his race.

The new briefs in Commonwealth Court largely expand on previous arguments made in county court.

Walsh challenge

The six ballots Walsh wants uncounted were cast by voters who filled in the correct month and day on the outer envelope but failed to add “24” in the blank boxes at the end of the year.

As part of a state redesign of mail ballots that took effect in all counties for the 2024 primary, the “20” start of the year was pre-filled, but voters were supposed to write in “24” at the end.

The county Election Board voted 4-1 to accept the six ballots as part of a batch of 111 mail ballots missing only the last two year digits. Most of the six mail ballot votes were for Cabell based on the tally update.

Walsh’s legal counsel argues a full date is required as affirmed by a 2023 Supreme Court decision.

A three-judge county court panel said the pre-printed 20 was specifically produced for the 2024 primary election and “therefore, it would stand to reason that the date, as written, could only be for the calendar year 2024.”

In the new Commonwealth Court briefs:

Cabell’s attorneys said Walsh’s filing should never have been taken up by county court in the first place because Walsh did not contest the votes within two days after the election board voted to accept them.

The county election board also made this argument in county court and restated it in the Commonwealth Court filing.

In an amicus brief, the Pennsylvania Department of State also supported dismissal due to the two-day requirement.

Walsh’s attorney had argued the two-day clock did not begin until the board signed off on partial election results a few days later.

The state’s filing disagreed with this interpretation.

“First, no matter how he describes his petition, Walsh is in fact contesting the Board’s April 26 canvassing decision. As this court just held, parties cannot dance around the Election Code’s applicable rules by trying to style their petition as something other than what it is.”

The election board and state briefs said the county court decision to affirm the board’s tallying of the votes was correct.

Cabell provisional challenge

Cabell argued Lake Township voter Timothy J. 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 county judges said 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.”

The Butler Township provisional ballot Cabell wants tallied was cast by his cousin, Shane O’Donnell.

The county Election Board had rejected this ballot as part of a batch from people not registered to vote in the county.

Cabell’s legal counsel said 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.

The board’s legal counsel said that option does not apply because O’Donnell changed his voter registration to McAdoo when he switched his vehicle registration to the new address in December.

In the Commonwealth Court filings:

Cabell reiterated the law “expressly prohibits” election boards from tallying any ballot without both signatures and that Wagner forfeited his right to cure this defect by failing to appear before the board when the issue was first raised.

Regarding O’Donnell, Cabell’s filing said his registration was “transferred in violation of law” through a vehicle registration, in part because the transfer did not involve completion of a “removal notice” containing “various warnings designed to ensure that the elector understands the consequences of signing and submitting the form.”

The election board’s filing said Wagner demonstrated his intention to vote with no evidence of fraud and that O’Donnell was registered to vote in Schuylkill County. Its filing also added an argument that the appeal should be dismissed as moot because the two provisional votes are not capable of altering the outcome of the election when three votes separate the candidates.

Cabell write-in challenge

At issue is whether the 22 Republican write-in votes in this race should be itemized and, if applicable, credited toward the tally of a candidate already appearing on the ballot (Cabell or Walsh).

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.

Cabell’s attorneys continue arguing the board’s refusal to review and cumulate write-in votes must be reversed because that decision goes against a Pennsylvania Supreme Court opinion’s “unmistakable holding.”

The county 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.”

Reach Jennifer Learn-Andes at 570-991-6388 or on Twitter @TLJenLearnAndes.