HARRISBURG – A recent 5-2 ruling from the Supreme Court of Pennsylvania may bring the Republican Party primary election to a seat in the State House of Representatives for the Commonwealth’s 117th District one step closer to a resolution, as the Court found one voter’s provisional ballot to be invalid and another voter’s to be valid.
In a Sept. 13 memorandum opinion, the state Supreme Court upheld a July 1 decision from the Commonwealth Court of Pennsylvania, ruling that candidate Jamie Walsh’s attempt to throw out one provisional ballot in place of another was not successful, adding heightened tension to an already razor-thin primary race.
Walsh, a Ross Township resident challenging to represent Pennsylvania in the State House of Representatives, is for the moment in the lead with 4,735 votes over first-term incumbent Rep. Mike Cabell, a Butler Township resident, who has 4,730 votes.
The election initially took place on April 23, but subsequent examination and careful reviews of write-in, provisional and mail-in ballots conducted by the Luzerne County Board of Elections & Registration, not to mention subsequent legal action and appeals by both Walsh and Cabell, have protracted the end of the race.
The Commonwealth Court ruled earlier this summer that a ballot cast by Timothy J. Wagner, of Lake Township, should be rejected, while a ballot case by Shane O’Donnell, of Butler Township, should be accepted.
O’Donnell is a cousin of candidate Cabell.
The dispute of validity was because Wagner had not affixed two signatures to the outer envelope of his ballot, while there was a separate contention surrounding residency as to the ballot submitted by O’Donnell.
Walsh then appealed to the state Supreme Court, seeking to overturn the Commonwealth Court’s finding.
Justice Sallie Updyke Mundy authored the Court’s majority opinion, as fellow justices Debra Todd, Kevin Dougherty, David Wecht and Kevin Brobson joined it, while colleague Justice Christine Donohue wrote a concurring and dissenting opinion, joined by Justice Daniel McCaffery.
The justice quoted from Pennsylvania Election Code as it related to primary elections and provisional ballots.
“After casting the provisional ballot, the individual shall place it in a secrecy envelope. The individual shall place the secrecy envelope in the provisional ballot envelope and shall place his signature on the front of the provisional ballot envelope. All provisional ballots shall remain sealed in their provisional ballot envelopes for return to the county board of elections. Except as provided in subclause (5)(ii), if it is determined that the individual was registered and entitled to vote at the election district where the ballot was cast, the county board of elections shall compare the signature on the provisional ballot envelope with the signature on the elector’s registration form and, if the signatures are determined to be genuine, shall count the ballot if the county board of elections confirms that the individual did not cast any other ballot, including an absentee ballot, in the election,” Updyke Mundy said.
“A provisional ballot shall not be counted if: (A) either the provisional ballot envelope under clause (3) or the affidavit under clause (2) is not signed by the individual; (B) the signature required under clause (3) and the signature required under clause (2) are either not genuine or are not executed by the same individual.”
Updyke Mundy said that a reading of the state’s Election Code showed the original trial court’s ruling was in error, and the Commonwealth Court properly reversed it.
“[Pennsylvania Election Code] does not allow for differential treatment where the voter’s electoral intent is clear and there is no suggestion of fraud, or where the voter is later informed by telephone that the ballot was accepted. These considerations are presently forwarded as reflecting equitable principles, but we have held that where the General Assembly ‘has attached specific consequences to particular actions or omissions, Pennsylvania courts may not mitigate the legislatively prescribed outcome through recourse to equity.’ That being the case, the Board’s decision to canvass the Wagner ballot, and the [Luzerne] County court’s affirmance of that decision, failed to comply with the Election Code’s requirements,” Updyke Mundy stated.
Wecht wrote a concurring opinion, which joined the majority ruling in full.
“Yet again, we are called upon to decide whether the Election Code really means what it says. Like the majority, I believe that it does, and that the two issues presented in this appeal are resolved by the plain statutory language and the facts established in the trial court. I join the majority opinion in full,” Wecht said.
“The appellant, Jamie Walsh, argues that the Luzerne County Board of Elections should be required to count the provisional ballot cast by Timothy Wagner, even though Wagner did not sign the outer envelope as the Election Code requires. Rather than examining what the statute requires, Walsh would have us disregard the statute based upon Wagner’s clear electoral intent, the instructions of election workers, and the absence of any allegation of fraud. The majority correctly rejects this argument. Not only does the Election Code unambiguously require the signature – the voter ‘shall’ place his or her signature on the front of the envelope – the Code unambiguously imposes a consequence for failing to do so. The ballot ‘shall not be counted.”
In a concurring and dissenting opinion, Donohue, joined by McCaffery, rejected the majority’s conclusions.
“In the first issue before this Court, an elector cast a provisional ballot because he did not cast and did not surrender his requested mail-in ballot when he appeared to vote in person in his election district. I dissent from the majority’s holding that our Election Code requires the Board of Elections to not count that provisional ballot because the elector failed to sign the provisional ballot envelope,” Donohue said.
“In the second issue before this Court, an elector cast his provisional ballot in the election district of his former legal residence in circumstances where he was already registered in a different election district. I concur with the majority’s determination that his provisional ballot should have been counted by the Board of Elections.”
The state Supreme Court’s ruling puts the race one step closer to a conclusion and decreases Walsh’s five-vote lead over opponent Cabell to four – potentially leading to the County Board of Elections’ signing of the final results and the opportunity for both candidates to then ask for a recount.
Supreme Court of Pennsylvania case 55 MAP 2024
Commonwealth Court of Pennsylvania case 628 C.D. 2024
Luzerne County Court of Common Pleas case 2024-05082
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com