A panel of Luzerne County court judges will decide soon whether six challenged mail-ballots in state 117th House District will count.
Meanwhile, the final fate of 14 uncounted provisional ballots also remained undetermined Monday. The county Board of Elections and Registration ruled 13 valid Friday, but a court appeal could change that.
For now, gutter installation company owner Jamie Walsh, of Ross Township, still leads state Rep. Mike Cabell, of Butler Township, by a mere four votes, 4,728 to 4,724.
The judges – Tina Polachek Gartley, Lesa Gelb and Richard Hughes – listened to arguments on the six mail-in ballots Monday morning. They did not immediately rule and gave lawyers until Wednesday at noon to file final written arguments.
The elections board voted April 26 to validate and count mail-in ballots. Four voters chose Cabell, two chose Walsh. Walsh’s lead expands to six votes if the mail-ins aren’t counted.
Walsh appealed the board’s mail-in decision to the county court. He contends the votes should not count because voters failed to write “24” to the complete year of the date the voter wrote on the return envelope of the mail-in ballot. The envelope has the “20” of this year pre-printed on it. The six ballots for the 117th were among 111 countywide missing “24.” The board said they all should count.
Voters are supposed to put ballots inside a secrecy envelope, then put that envelope into a return envelope that they sign and date.
Elections board lawyer Gene Molino said the court should dismiss Walsh’s appeal for two main reasons.
First, Walsh appealed too late.
Molino said Walsh had two business days to appeal after the board decision. Because April 26 was a Friday, that meant the appeal deadline was the close of business Tuesday, April 30, Molino said.
Instead, Walsh’s lawyer, Gregory H. Teufel, filed Thursday, May 2.
Teufel argued he filed on time. He acknowledged the board decided on the ballots April 26, but did not sign the unofficial count’s results until April 30, Teufel said. That gave him until May 2 to file, he said.
Two county elections officials testified otherwise. Elections board chairwoman Denise Williams and acting elections director Emily Cook said the Tuesday signing was only on a document that let the Department of State know the progress of the official count. The department oversees Pennsylvania elections.
Molino said that progress report is only a state administrative requirement. The date the board validated the six ballots is what matters because state law specifically says that’s what counts regardless of when the decision is put in writing, he said.
Teufel’s second reason for rejecting the ballots centered on a recent federal appeals court ruling.
On March 27, the U.S. Court of Appeals for the 3rd Circuit upheld the validity of a state requirement that a voter sign and date the envelope used to return a mail-in ballot. The state Supreme Court upheld the requirement first in February. A group of voting advocates sued to overturn the ruling, and a federal District Court overturned it, which led to the circuit court ruling.
Teufel said the missing “24” means the date is incomplete, the ballot lacks a valid date, and the ballot is invalid.
Molino disputed that. He cited Department of State guidance issued April 19 to election directors statewide. The guidance led elections officials to believe a mail-in ballot could count if the year is incomplete, he said.
In the guidance, obtained by WVIA News, department Deputy Secretary Jonathan Marks said elections officials would not be justified in rejecting a ballot “if the voter entered the month and day but did not write ‘24’ in the year field.”
The judges may soon be involved in deciding on the provisional ballots, too.
The elections board ruled 13 of the 14 provisional ballots valid during a hearing Friday and upheld its decision to rule the other invalid. Cabel and Walsh had until close of business Monday to appeal the rulings county court.
Teufel said Walsh considered appealing some rulings, but decided against it.
Shohin Vance, Cabell’s lawyer, said Friday he would likely challenge the ruling on the invalidated ballot and one of the valid ballots. Efforts to reach Vance and Cabell on Monday were not immediately successful.
Election rules allow someone to cast a provisional ballot when the person's eligibility to vote is in doubt. Election boards determine eligibility during official counts later.
