Candidate Jamie Walsh in court seeking to throw out six mail ballots over date issue

Republican state representative candidate Jamie Walsh appeared in the Luzerne County Court of Common Pleas Monday asking judges to throw out six mail ballots in his race because the voters did not fill in the final two digits of the year on the outer envelope.

A decision is pending from the three-judge panel — Lesa S. Gelb, Tina Polachek Gartley and Richard M. Hughes III.

This proceeding was separate from challenges the county Election Board heard last week over paper provisional ballots in the 117th District.

As it stands, four votes separate the party’s two contenders — Walsh, with 4,728, and incumbent Mike Cabell, who has 4,724.

The six ballots Walsh wants uncounted already were incorporated in this tally.

On the night of the April 23 primary election, the tally at that point left Walsh with an eight-vote lead. When the six mail ballots were accepted by the election board on the first day of adjudication April 26, Walsh was ahead by only five votes, meaning Cabell picked up more of the six mail votes.

The six mail ballots were part of a batch of 111 in which voters 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 this primary, the “20” start of the year was pre-filled, but voters were supposed to write in “24” at the end.

A federal appeals court panel recently upheld enforcement of the technical date mandate.

The state issued guidance indicating ballots should not be disqualified due to the two year boxes left blank.

During the April 26 board adjudication session, Election Board Chairwoman Denise Williams had said voters may not have picked up on the blank boxes because the first two digits already were filled in. She questioned if the state should have pre-filled the entire year rather than just the first half, particularly because the outer envelopes are not reused for other elections. Williams said she supported following this guidance so those voters were not disenfranchised.

Assistant Solicitors Gene Molino and Paula Radick had advised the board of both the court ruling and the state guidance, saying the decision was up to the board.

Election Board Vice Chairwoman Alyssa Fusaro had argued the date was mandatory based on the court ruling, saying state guidance has been wrong before.

Election Board member Rick Morelli had said the month/day was in range for all 111, and he noted the timestamp marking the ballots as received reinforces the year is 2024.

Fusaro was the lone board member to vote against accepting the 111 ballots, with board members Albert Schlosser and Daniel Schramm voting yes with Morelli and Williams.

Monday hearing

Pittsburgh Attorney Gregory H. Teufel represented Walsh Monday, while Molino and Radick appeared on behalf of the election board. Cabell’s campaign chose not to participate in the court proceeding.

Stressing he is not taking a position for either campaign, Molino argued the challenge over the six mail ballots should be dismissed because it was filed too late.

Molino cited statute indicating the appeal must be filed within two days of the board’s April 26 adjudication decision to accept the ballots. The challenge was filed May 2.

Results of the ballots accepted April 26 were uploaded to the county’s public election database that evening, he noted.

Teufel maintained the two-day window did not start until April 30, when the county sent a report to the Pennsylvania Department of State.

County Acting Election Director Emily Cook said this report provides a status to the state on what results have been tallied to date and what remains to be counted.

On the argument of whether the ballots should be counted, Molino said legal counsel presented both the legal rulings and state guidance to the board.

He also noted the 111 without the final two year digits were placed in a separate category by the board. The board voted to reject other ballots with no dates and dates that fell outside the April 1-23 period in which mail ballots were issued and permitted to be returned. The board also chose not to count 19 ballots with an in-range month and day because the final two digits of the year were incorrect.

Teufel said a full in-range date is required by law.

Judge Polachek Gartley said the panel will take all the information presented under advisement.

Even though Walsh is focused only on ballots in the 117th District, Molino told the court the board cannot treat one portion of the 111 different than the others. If the court rules the six ballots with two blank years should not be counted, that decision would have to apply to all 111, Molino said.

Provisional challenges

Regarding provisional ballots, Walsh said Monday evening he is not appealing any election board decisions tied to provisional ballots.

The election board ruled on 14 challenged ballots Friday, deciding to stick with its original decision to proceed with accepting 13 and rejecting one.

However, the county cannot unseal and tally results from these 14 until the two-day appeal period lapses. With the option to electronically file appeals in county court after office hours, Walsh and Cabell had until midnight Monday.

Attorneys said they were expecting some appeals from Cabell, but he could not be reached for comment on the matter Monday.

If any appeals are filed, tallying of the entire batch must wait until all appeals are processed, attorneys said. Appeals must be filed in the county Court of Common Pleas and then, if still contested, the Commonwealth Court, attorneys said.