A state appellate court has ruled in favor of incumbent state Rep. Mike Cabell in one of three appeals over his ongoing ballot battle with challenger Jamie Walsh.
Walsh leads Cabell by three votes following their hotly contested April 23 primary contest for the 117th House District Republican nomination in Luzerne County.
Commonwealth Court on Monday sided with Cabell, who argued that a provisional Butler Township ballot cast by his cousin, Shane O'Donnell, should be counted, while a provisional ballot cast by Lake Township voter Timothy J. Wagner should be rejected.
Commonwealth Court Judges Anne E. Covey and Stacy Wallace agreed with Cabell on both counts. Judge Matthew S. Wolf agreed with the majority on accepting O'Donnell's ballot, but dissented on rejecting Wagner's ballot.
The court must still rule on Cabell's appeal asking for 22 write-ins to count and Walsh's appeal asking the court to throw out six already counted mail-in ballots. The candidates agree 12 other untallied provisional ballots should count, but state law prevents tabulating them until a decision on all the appeals.
O'Donnell ballot
O'Donnell relocated to McAdoo, Schuylkill County, from Butler Township, Luzerne County, on March 29. Cabell's attorneys argued O'Donnell had a right to vote in his previous residence because there is a 30-day legal window for doing so.
O'Donnell's ballot had been rejected by the Luzerne County Election Board, and that move was upheld by a panel of three Luzerne County judges in May.
In his testimony, before county court, O’Donnell explained that he had purchased a home outside of the district in June 2023, but was living with relatives in Butler Township while renovating his new home in McAdoo.
County court found the testimony credible, Commonwealth Court noted, but "nonetheless reasoned" there was no actual disenfranchisement because "nothing prevented O’Donnell from exercising his franchise" in his new voting district in Schuylkill County.
The Commonwealth Court judges disagreed, faulting the lower court's reasoning.
Because county court found that O’Donnell moved out of the district 25 days before the primary, "it is axiomatic that he did not reside in his new district within the required “30 days immediately preceding the election," the court noted.
"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," Commonwealth Court's ruling states.
Wagner ballot
Cabell's team challenged the Wagner Ballot — although it was accompanied by a properly executed affidavit — on the ground that the provisional ballot envelope was not signed, as required under state Election Code.
According to county court testimony recounted in Monday's ruling, Wagner said he appeared in person at his Lake Township polling on April 23 and was informed by a poll worker that because he had been issued and did not return his mail-in ballot, he would need to complete a provisional ballot.
Wagner testified that he followed the instructions of a senior election worker in completing the provisional ballot and its accompanying envelope, the appeal states.
"She basically was leading me through everything. She was telling me what to do, what not to do. And yes, by the time I finished she had actually said 'I put the date on something for you so you didn’t have to,'" Wagner testified. As instructed, Wagner confirmed with elections officials several days later that his ballot had been accepted.
Cabell's team argued state Election Code is clear "that a provisional ballot shall not be counted if the voter does not sign the provisional ballot envelope."
The Election Board argued — and county court had agreed — that "well-settled precedent requires interpreting the Election Code in favor of enfranchisement."
The Commonwealth Court majority responded that county court "erred by ignoring the mandatory plain language" of the Election Code.
Judge Wolf challenged his colleagues' reasoning in a sharply worded dissent.
"The lack of signature on Mr. Wagner’s provisional ballot envelope is at most a minor irregularity, and (Cabell) did not present any reason, no less a compelling one, for throwing it out," Wolf wrote.
"There is not a hint of an allegation of fraud as to this vote; quite the opposite, it is undisputed that the vote was appropriately cast but for this minor irregularity," Wolf added. "On this record, the majority’s decision to disenfranchise Mr. Wagner based on a mere technicality defies common sense and Supreme Court precedent."
'The appeal is not moot'
The Election Board argued that with a three-ballot gap between the candidates and the status of additional ballots in dispute, arguments over the O'Donnell and Wagner ballots are not capable of changing the outcome of the election and therefore Cabell's appeal is moot.
"Because these appeals and the canvassing of the other 12 provisional ballots are pending, the outcome of this case may affect the result of the 2024 Primary Election. Accordingly, the appeal is not moot," Commonwealth Court responded.
