Republican state House candidate Jamie Walsh will appeal a July 1 Commonwealth Court ruling that favored opponent Mike Cabell’s request to count one provisional ballot and discard another in their battle for the 117th District in Luzerne County.
"They accepted a ballot from someone who is now not registered to vote in the district, and they disqualified another gentleman who is registered to vote in the district and testified his intent to vote," Walsh said Tuesday afternoon.
Cabell said he would be releasing a statement later Tuesday.
Walsh's appeal, which is being handled by Lititz-based Attorney J. Chadwick Schnee, is expected to be filed by the end of business on Wednesday, Walsh said.
Walsh challenged first-term Rep. Cabell in the April 23 primary, and still leads by three votes, according to an unofficial count posted to the county's website.
Status of undisputed provisional ballots
But there are 12 undisputed provisional ballots not yet opened and counted — in addition to the two at the center of the latest appeal — which could determine the outcome of the race.
The Luzerne County Election Board previously scheduled a special meeting for 9:30 a.m. Friday to count those ballots if no further appeals were filed.
With no appeal filed as of Tuesday, Luzerne County Assistant Solicitor Gene Molino said the Board of Elections still planned to hold the special meeting on Friday morning to count 13 provisional ballots — the 12 unchallenged ballots plus the 13th that was allowed under the Commonwealth Court ruling.
If Walsh files his appeal Wednesday as planned, Molino said Friday's meeting would still proceed, but the board would only count the 12 unchallenged ballots.
The meeting will take place in Room 301 of Luzerne County's Penn Place Building, 20 North Pennsylvania Ave., Wilkes-Barre.
Appeal re: O'Donnell ballot
In the meanwhile, Walsh's appeal could be headed to the state's highest court regarding the two contested provisionals.
Cabell had 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.
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.
The panel of three Commonwealth Court judges unanimously disagreed last week, arguing that O'Donnell could not have voted in his new district in McAdoo because he hadn't lived there the required 30 days, therefore the county court had disenfranchised him.
Appeal re: 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's outer envelope was not signed, as required under state Election Code.
According to county court testimony recounted in the Commonwealth Court ruling, Wagner said he appeared in person at his Lake Township polling place 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.
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," particularly where there is no evidence of fraud and a voter’s intent is clear.
Two of three Commonwealth Court judges responded that county court "erred by ignoring the mandatory plain language" of the Election Code.
Judge Matthew S. Wolf dissented on that ruling, writing: "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."
Walsh reiterated that he will fight those conflicting rulings.
"In one breath they disenfranchised Mr. Wagner's vote, but then allowed for improperly tabulating a non resident's ballot," he said.
Many moving parts
The battle over the 117th has led to several court actions, with three of them coming into play last week:
- On Monday, there was the O'Donnell/Wagner ruling, which Walsh plans to appeal, as noted.
- Cabell had appealed to Commonwealth Court asking for 22 write-ins to count. The court ruled against him last Tuesday.
- Walsh also had asked Commonwealth Court to throw out six already counted mail-in ballots. In a ruling issued last Wednesday, the court declined to do so. Walsh said Tuesday he will not appeal that ruling.
It was unclear how quickly the high court might take up Walsh's appeal on the O'Donnell/Wagner ruling.
"In talking with my lawyer he did say that since it's an election-related issue it should be expedited," Walsh said.
"Now what the definition of expedited means, I don't know," he added. "I thought Commonwealth Court was expediting things and it took five weeks to get a decision."
