Judges deny Cabell’s appeal over election ballots and write-ins

A three-judge Luzerne County Court of Common Pleas panel has denied state Rep. Michael Cabell’s request to count one provisional ballot, reject another and tally any write-in votes in his tight race for the Republican nomination, according to a Wednesday ruling.

The ruling also affirmed the county Election Board’s decisions involving both the provisional ballots and write-ins.

Three votes separate the party’s two April 23 primary election contenders in the 117th District, with Cabell’s opponent, Jamie Walsh, in the lead, according to unofficial results.

County Court of Common Pleas Judges Tina Polachek Gartley, Richard M. Hughes III and Fred A. Pierantoni III presided over the matter.

County Assistant Solicitor Gene Molino said he was pleased with the court’s rulings.

Cabell has the option to appeal the rulings to Commonwealth Court. He could not immediately be reached for comment on his plans.

Walsh said Wednesday that he appreciates the due diligence of both the court and election board.

“I think we’ve seen the full process play out over the last few weeks, and this will finally bring closure to the matters at hand,” Walsh said.

The big question is when the outstanding provisional ballots can be counted.

The Lake Township provisional ballot Cabell sought to dismiss was part of a batch of 13 Republican ones in that race that the county election board approved. However, none of these ballots have been opened and tallied due to the pending county court appeal.

Molino said Wednesday he is further reviewing election code provisions related to provisional appeals to determine when the ballots may be opened. It’s possible the county may still have to wait until the conclusion of a Commonwealth Court appeal, if one is filed, he said.

The election board is scheduled to certify April 23 primary election results at 10 a.m. Thursday, minus the tally in the 117th House District due to the legal challenge.

The Lake Township ballot of voter Timothy J. Wagner was contested by Cabell due to an outer envelope signature issue.

Voters are instructed to sign in two places on the outer provisional ballot envelope — first to affirm the ballot is the only one they are casting and second after they have filled out the ballot and inserted it in a secrecy envelope. The post-completion signature was missing in this case.

Representing Cabell, Attorney Shohin H. Vance of Kleinbard LLC in Philadelphia said this signature is mandatory, citing an unpublished Commonwealth Court opinion.

Molino said there also is a Delaware County Court of Common Pleas opinion that takes the opposite view from the opinion cited by Vance, favoring the acceptance of such ballots.

During last week’s court hearing on the matter, Election Board Chairwoman Denise Williams testified the board has consistently accepted provisional ballots missing one of the two signatures when everything else was in order.

Wagner also testified.

The Butler Township provisional ballot Cabell wanted tallied was cast by his cousin, Shane O’Donnell, who also testified last week.

The board had rejected this ballot during adjudication as part of a batch from people not registered to vote in the county.

Vance argued O’Donnell’s ballot should be counted because he did not officially relocate to Schuylkill County until March 29, and there is a 30-day window to vote at a prior residence preceding an election.

O’Donnell said he changed his vehicle registration to the Schuylkill County address in December 2023 but retained his Butler Township address on his driver’s license and lived in Butler Township until March 29. He said he was surprised to learn he was no longer registered in Butler Township on Election Day. He testified he did not recall checking any boxes on the vehicle registration that would also change his voter registration address or receiving anything from Schuylkill County informing him he was now registered there.

County Acting Election Director Emily Cook testified motorists must click on a box on the state transportation department vehicle registration renewal site if they don’t want to change their voter registration address while updating their vehicle registration address.

Vance said the 30-day window to vote at a prior address is based on residence, not vehicle registration, and no evidence was presented asserting that O’Donnell moved before March 29.

Molino said he would agree with this interpretation if O’Donnell had not registered to vote in Schuylkill County.

Regarding 22 Republican write-in votes in the race, Vance and Molino presented differing legal analysis on whether they should be itemized and credited toward the tally for a candidate already appearing on the ballot in that race.

The election board has long held the position the law allows voters to select someone named on the ballot or write in the name of someone else.