Wait on for PA Supreme Court ruling in Cabell/Walsh race

Now that all legal briefs have been filed, the wait is on for a Pennsylvania Supreme Court ruling in the April 23 primary election Republican race for 117th District state representative between Jamie Walsh and incumbent Mike Cabell.

Walsh has an unofficial five-vote lead over Cabell, which means Cabell can’t overcome that difference through the two provisional ballots at issue in the pending state Supreme Court case — the lone pending litigation in the race.

Cabell’s response brief was the last submission due under the state Supreme Court’s expedited scheduling, and it was filed Aug. 7.

Walsh appealed to the state Supreme Court seeking reversal of a Commonwealth Court decision granting Cabell’s request to reject Lake Township voter Timothy J. Wagner’s ballot and accept a Butler Township ballot cast by Cabell’s cousin, Shane O’Donnell.

In his new filing, Cabell continued his argument that Wagner’s 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 affirmed the county’s election board’s decision to accept Wagner’s ballot, saying the state 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.”

Two of the Commonwealth Court judges — a majority — said the acceptance of Wagner’s ballot must be reversed due to the mandatory signature requirement in state law. The remaining judge dissented, citing Wagner’s “exceedingly clear” electoral intent and the state 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.”

Cabell’s new response filing said the state General Assembly, through Section 1204 of state election law, “attached a clear consequence for Timothy Wagner’s failure to sign his provisional ballot’s envelope: it shall not count.”

It said Walsh, the appellant, “does not explain why this court can ignore those plain terms.”

“Instead, appellant appeals to this court’s equitable powers and complains that the signature on the envelope is merely technical or superfluous. But these considerations are irrelevant where Section 1204 unmistakably provides that such a provisional ballot shall not count,” it said.

If the state Supreme Court accepts Walsh’s arguments, “it would be rewriting Section 1204 in direct contravention of the General Assembly’s intent,” Cabell’s filing said.

Regarding O’Donnell’s ballot, Cabell continues to argue it should be counted because O’Donnell 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.

O’Donnell has said he was unaware he selected an option to change his voter registration address to McAdoo in December 2023, when he updated his vehicle to the future address during his vehicle registration renewal.

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

A three-judge county Court of Common Pleas panel agreed with the board’s decision, saying O’Donnell was not disenfranchised because he could have voted at his new residence but chose not to.

However, the three-judge Commonwealth Court panel said O’Donnell’s ballot must be accepted, indicating 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.

Cabell’s new filing said the Commonwealth Court panel “correctly concluded that Mr. O’Donnell’s residence, and not his voter registration, was the material inquiry” to determine he should vote in Butler Township “to avoid an absurd result” of being disenfranchised.

Cabell also argued any regulations permitting changes to voter registration through vehicle registration must be voided due to a lack of statutory authority.

His filing also noted it is “irrelevant” that O’Donnell is Cabell’s cousin. “Mr. O’Donnell testified that he regularly voted, and did not intentionally vote in the District to vote for his cousin,” a notation said.

The battle over the Republican nomination could be the determination of which candidate is seated in the 117th District because no Democratic contenders surfaced in the primary.

The county Election Board cannot issue final results and certify the election until the provisional ballot case is adjudicated.

Cabell has not yet announced a decision on whether he will seek a recount, which is an option he had said his campaign was exploring.