Commonwealth Court rejects Michael Cabell’s appeal seeking tallying of write-in votes

Commonwealth Court issued another ruling Tuesday in the tight Republican 117th House District race, denying incumbent Michael Cabell’s appeal seeking the tallying of write-in votes, if any.

The ruling comes a day after Commonwealth Court granted Cabell’s appeal seeking the acceptance of one provisional ballot and rejection of another.

Commonwealth Court has not yet issued an opinion on the remaining filing from Cabell’s opponent, Jamie Walsh, seeking to throw out six already-tallied mail ballots missing the last two digits of the year on the outer envelopes.

Cabell and Walsh are 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.

In the matter decided Tuesday, the issue was 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 argued 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.”

A county Court of Common Pleas panel denied Cabell’s challenge of the election board decision, prompting his appeal.

According to the opinion issued Tuesday, all three presiding Commonwealth Court Judges — Anne E. Covey, Stacy Wallace and Matthew S. Wolf — agreed with the county election board and affirmed the county trial court’s order.

The voting standards referenced by the election board have had the force and effect of law since state legislators amended the election code in 2006, the opinion said, adding that the Supreme Court’s 2004 decision cited by Cabell “predates this legislative change.”

What’s next?

The candidates and election board have the right to appeal the rulings to the Pennsylvania Supreme Court.

Petitions for allowance of appeal would have to be filed within 10 days of the order, and the Supreme Court has discretion over whether it will agree to hear such cases.

It’s unclear if any results will be updated in the Republican race before the appeal period has passed.

In addition to the single provisional ballot that Commonwealth Court decided should be counted, there are 12 more provisional ballots in the race that are no longer contested by either candidate. The processing and tallying of those 12 ballots was put on hold pending adjudication.

While the single ballot that was accepted is likely for Cabell because it was cast by his cousin, the selections of the other 12 remain unknown.

In the still-outstanding appeal filed by Walsh, the six mail ballots he is attempting to throw out were already tallied and incorporated in the current results that left Walsh with a three-vote lead. Most of those six votes were for Cabell.

Walsh said Tuesday he will comment after he has an opportunity to review the matter with legal counsel.

Cabell has not yet issued a statement on the rulings.