Six mail-in ballots in an unresolved Luzerne County Republican state House primary election race should remain in the final count, a state appeals court ruled Wednesday.
The Commonwealth Court ruling, the last of three this week centering on differing types of votes cast, brings an outcome closer in the 117th House District contest but state Supreme Court appeals could delay that further.
Since Luzerne County elections officials posted their latest count online in early May, challenger Jamie Walsh has led incumbent first-term Rep. Mike Cabell by three votes – 4,728 to 4,725. The primary election was April 23.
Walsh said he plans to meet with his lawyer Monday to discuss whether to appeal to the Supreme Court the ruling on the mail-in ballots and another Commonwealth Court ruling Monday on two uncounted provisional ballots. In that ruling, the court said one provisional should count and the other shouldn’t, reversing county court and Board of Elections and Registration decisions.
Walsh said Wednesday he isn’t feeling anxiety over the delay in getting a final result.
“This is all part of the judicial process and you can't rush it. You just have to be patient and wait for the opinions to come out,” he said. “Everybody wants this done yesterday, and I understand that. But at the same token, we’ve got to make sure … these opinions are thought through by the courts.”
Cabell could not be reached for comment on whether he will appeal a Commonwealth Court ruling Tuesday that blocked a review of 22 write-in ballots.
The candidates have 10 days to appeal from the date of each ruling. The elections board can't tally valid uncounted ballots until the appeals are over.
The elections board already counted the six mail-in ballots so the latest ruling won’t change the final result.
Unless the Supreme Court overturns the Commonwealth Court rulings, the result will change only based on votes cast on 13 uncounted provisional ballots -- the one allowed by the court this week and 12 that both candidates agree should count and were never disputed.
Cabell needs nine of the 13 to win by two votes and eight to tie. If he gets seven or fewer, Walsh wins. The winner will likely be the next state representative because no Democratic candidate is on the ballot.
Poll workers hand out provisional ballots on Election Day if a voter’s eligibility is in dispute. Elections officials sort out eligibility later.
In the mail-in case, Walsh appealed the Luzerne County Court’s decision to uphold an elections board decision to count the mail-in ballots. The ballots split four for Cabell and two for Walsh.
Walsh contends the six voters didn’t fill in “24” to complete the year on an envelope with the “20” part of 2024 pre-printed and the rest a blank.
Citing state law, the county judges and elections board said that shouldn’t matter. The county court said all the mail-in ballots were dated between the permissible range of April 1 to 23. And the envelopes were produced for the 2024 primary so “it would stand to reason that the date, as written, could only be for the calendar year 2024,” the court said.
Commonwealth Court did not rule on dating matter. Rather, the court focused on whether Walsh met the deadline to appeal the elections board’s decision to count the votes.
The court said the election board decided to count the six ballots on April 26. Walsh should have appealed by May 1, but waited until May 2, the court said.
The appeals court sent the matter back to the county court to dismiss the case based on the timing issue.
