A third group of disputed votes may soon come into play in the unresolved Republican race for the state 117th House District seat.
State Rep. Mike Cabell wants the Luzerne County Court to order election officials to review 22 write-in votes cast in the race and add to his total any votes that reflect "a clear intent" to vote for him.
Shohin H. Vance, Cabell’s lawyer, petitioned for a court review of the write-in votes Monday.
The status of six counted mail-in ballots is already before the court. Another 14 provisional ballots remain uncounted with two also disputed in court Monday by Vance.
In all, at least 42 votes are either uncounted, disputed or both.
The current, unofficial vote tally has gutter installation company owner Jamie Walsh ahead of Cabell by only four votes, 4,728 to 4,724.
The county Board of Elections and Registration voted Thursday to reject counting write-in votes cast for Cabell. Citing the state Election Code, the board rejected the write-ins because Cabell’s name already appears on the Republican ballot, according to Vance’s petition.
Vance makes a highly technical, legal case in arguing the write-ins should count. He says rejecting write-ins was okay when people voted on mechanical voting machines. The Election Code governing mechanical machines specifically says write-in votes cast for a candidate listed on the ballot should not count.
However, Vance points out, Luzerne County uses electronic voting machines just as the state’s 66 other counties do.
In the section of the Election Code governing electronic voting machines, the law says a voter may vote for “any person or persons whose name is not printed on the ballot as a candidate for such office,” but the section does not specifically say the vote should not count, Vance argues.
He cites state appeals court rulings in a 2003 Snyder County commissioners race. The race for the third seat on the board of commissioners was tied at first. When election officials decided to include 10 write-in votes, one candidate won by seven votes.
The county court threw out the write-ins, but the state Commonwealth Court reinstated them and the state Supreme Court affirmed the votes should count.
The Supreme Court said ambiguity in election law should favor letting a vote count and “marking a ballot in voting is not a matter of precision engineering but of an unmistakable registration of the voter’s will.”
Because of that, the Luzerne elections board should count write-in ballots marked with Mike Cabell, Michael Cabell, M. Cabell, M.K. Cabell and Cabell, Vance contends.
They all reflect “a clear intent” to vote for Cabell, he says.
The 22 disputed write-in votes add to two other groups of ballots already in dispute.
On Friday, after a two-hour hearing, the elections board voted to count 13 provisional ballots and upheld its decision to reject another.
On Monday, Vance also asked the county court to overturn the board’s decisions to reject one provisional and to count one of the 13. Vance did not appeal on the other 12, which elections officials said won’t be counted until this court case is decided.
Who the 14 voters voted for is unknown because the elections board hasn’t opened the provisional ballots. 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.
A panel of county judges is also awaiting final written legal arguments in a dispute over six mail-in ballots – four cast for Cabell and two for Walsh.
Walsh contends the six shouldn’t have counted because they were missing the “24” of the current year on the back of a pre-printed mail-in return envelope that lists the year as “20” with a blank following.
