Jamie Walsh files Commonwealth Court appeal over ballot date issue

Both Republican candidates in the tight race for state representative in the 117th House District now have pending appeals in Commonwealth Court.

Candidate Jamie Walsh said Monday he is contesting a Luzerne County Court of Common Pleas ruling that denied his request 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.

His opponent, state Rep. Michael Cabell, had announced Friday he is filing a Commonwealth Court seeking to overturn county court decisions on the tallying of two provisional ballots.

As it stands, the April 23 primary election candidates are three votes apart, with Walsh in the lead. The primary may be the final fight in this race because no Democratic contenders appeared on the ballot or obtained that party’s nomination through write-in votes.

Walsh appeal

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

These 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.

The county’s election board had accepted the six ballots during its April 26 adjudication session as part of a batch of 111 mail ballots missing only the last two digits of the year.

A federal appeals court panel recently upheld enforcement of the technical date mandate on mail ballots, but the Pennsylvania Department of State issued guidance advising county boards to accept those without the “24” if everything else was in order.

County 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.

Four of the five board members accepted the ballots, with board Vice Chairwoman Alyssa Fusaro providing the lone no vote.

A three-judge county court panel agreed the board properly accepted the 111 ballots, saying, “To do otherwise would disenfranchise these Pennsylvania voters,” its May 8 ruling said.

Most of the six mail ballot votes were for Cabell based on how the tally changed when the unofficial results were updated.

Pittsburgh Attorney Gregory H. Teufel represented Walsh and had argued in court that a full in-range date is required by law.

Walsh said Monday he decided to appeal to Commonwealth Court because clarity is needed.

“If we don’t have this nailed down by the fall, what’s going to be the next exception? There’s too much at stake in the fall to not have clear guidance, and the fact that the state guidance conflicts with the election code is another problem that needs to be fixed,” Walsh said.

Cabell appeal

In a statement last week, Cabell had said the appeal continues his “commitment to ensuring the integrity of the electoral process and the principle that every legally cast ballot must be counted.”

He lost his county court appeal May 15 asking judges to order the county election board to accept a Butler Township provisional ballot and reject a Lake Township one.

The Lake Township ballot of voter Timothy J. Wagner was contested by Cabell due to an outer envelope signature issue.

Voters are instructed to sign in two places on the outer provisional ballot envelope — first to affirm the ballot is the only one they are casting and second after they have filled out the ballot and inserted it in a secrecy envelope. The post-completion signature was missing in this case.

Representing Cabell, Attorney Shohin H. Vance of Kleinbard LLC in Philadelphia has said this signature is mandatory, citing an unpublished Commonwealth Court opinion.

Molino, representing the election board, has said there also is a Delaware County Court of Common Pleas opinion that takes the opposite view from the opinion cited by Vance, favoring the acceptance of such ballots.

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

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

Vance argued O’Donnell’s ballot should be counted because he did not officially relocate to Schuylkill County until March 29, and there is a 30-day window to vote at a prior residence preceding an election.

O’Donnell said he changed his vehicle registration to the Schuylkill County address in December 2023 but retained his Butler Township address on his driver’s license and lived in Butler Township until March 29. He said he was surprised to learn he was no longer registered in Butler Township on Election Day. He testified he did not recall checking any boxes on the vehicle registration that would also change his voter registration address or receiving anything from Schuylkill County informing him he was now registered there.

County Acting Election Director Emily Cook had testified motorists must click on a box on the state transportation department vehicle registration renewal site if they don’t want to change their voter registration address while updating their vehicle registration address.

Vance said the 30-day window to vote at a prior address is based on residence, not vehicle registration, and no evidence was presented asserting that O’Donnell moved before March 29.

Molino said he would agree with Vance’s interpretation if O’Donnell had not registered to vote in Schuylkill County.

In a statement last week, Cabell said the issues raised in his appeal will include a change made to a registered voter’s address under the new “motor voter” program administered by the Pennsylvania Department of State and Pennsylvania Department of Transportation.

As of Monday afternoon, Cabell had not yet filed a Commonwealth Court ruling denying his separate filing seeking tallying of write-in votes.

The three-judge county court panel affirmed the election board’s decision to not tally and provide credit for write-in votes, if any, that were cast in his race because Cabell’s name already appeared on the ballot.

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.

Status of tally

Due to the pending legal challenge, the county Election Board last week certified the primary results without including the 117th race or 14 Republican provisional ballots that are still subject to litigation in that race.

This group of 14 consists of 13 ballots accepted by the board (including the Lake Township one) and the one the board rejected from Butler Township.

None of these provisional ballots were unsealed and tallied due to the pending appeal.

Based on a review of the law, Molino has said the election board won’t open and process any of these provisional ballots until candidate appeals are fully adjudicated with court rulings.

It’s unclear what would happen if Walsh wins his appeal because the 111 ballots missing the last two digits of the year already were incorporated into results.

Even though Walsh is focused only on ballots in the 117th District, Molino had told county judges 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 had said.