Cabell wins Commonwealth Court appeal to count one provisional ballot, reject another

Commonwealth Court issued a ruling Monday on one of three pending appeals in the tight race for the Republican 117th House District contest — this one granting incumbent Michael Cabell’s request to count one paper provisional ballot and reject another.

Cabell and Republican April 23 primary election challenger Jamie Walsh are currently three votes apart, with Walsh in the lead.

Monday’s ruling centered on Cabell’s efforts to tally a Butler Township ballot cast by his cousin, Shane O’Donnell, and reject another cast by Lake Township voter Timothy J. Wagner.

A majority of the three-judge Commonwealth Court panel agreed with Cabell’s legal arguments.

Cabell argued 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.

A county Court of Common Pleas judge panel had ruled Wagner’s ballot should be counted, saying 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 county Election Board had rejected O’Donnell’s 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. The county judge panel had affirmed the election board’s decision to not count the ballot.

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.

In Monday’s decision, Commonwealth Court Judges Anne E. Covey and Stacy Wallace issued the opinion reversing the county court decision.

Commonwealth Court Judge Matthew S. Wolf, the remaining panel member, said he joins the majority opinion regarding accepting O’Donnell’s ballot but disagrees with the rejection of Wagner’s ballot.

Opinion specifics

According to the opinion from Covey and Wallace:

Cabell’s appeal of two provisional ballots should not be dismissed as moot due to the three-vote difference because there are more than those two ballots at play.

In one of the two pending appeals, 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.

Meanwhile, Cabell appealed a county court ruling denying the counting of Republican write-in ballots cast for him, if there are any in his race.

Furthermore, the opinion states there are 12 more provisional ballots in the race that are no longer contested by either candidate, and the processing and tallying of these 12 ballot was put on hold pending adjudication of all appeals in the 117th race.

The opinion said the judges are required to reverse the trial court’s determination to accept the Wagner ballot due to the mandatory signature requirement in state law.

On the subject of O’Donnell, the opinion said 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.

“Thus, applying the trial court’s reasoning to its findings of fact, O’Donnell would not have been permitted to vote in any district on April 23, 2024, and would indeed have been disenfranchised,” the opinion said.

Wolf’s opinion said he dissents on the rejection of Wagner’s ballot. He stated Wagner’s electoral intent was “exceedingly clear” and pointed to the 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.”

Wolf said he views the provisional ballot envelope signature requirement as a technical one.

“As precedent illustrates, technical nonconformance with Election Code provisions is not always fatal, even where the provision at issue includes the word ‘shall,’” he wrote.

Walsh said Monday he will offer a statement after he has an opportunity to review the matter with legal counsel.