The state Supreme Court has agreed to hear an appeal to determine whether votes cast on provisional ballots should be included in the narrow Republican primary for a seat in the Luzerne County House of Representatives.
The case is one of three pending in the court in the 117th Congressional District race, where incumbent state Rep. Mike Cabell (R-Luzerne) and his opponent Jaime Walsh, who has already declared victory, are fighting to pick up all the uncounted votes.
At issue in the appeal accepted Wednesday is whether two provisional ballots — one submitted without a signature and the other cast by a voter who recently moved to another county — should be counted.
The Supreme Court has not announced whether it will hear an appeal filed by Walsh in a dispute over six mail-in votes, or by Cabell, who wants the county election board to count 22 votes cast for state representative in the district.
Walsh, who declared victory earlier this month, has a five-vote lead over incumbent Cabell, according to unofficial election results in Luzerne County. Only write-in votes could change the outcome of the race, although Walsh’s lawyer said the likelihood of that is slim.
There is no Democratic candidate for this position, so the winner of the primary is expected to be the winner in November.
Walsh argues that the Court of Common Pleas erred in overturning the decisions of the Luzerne County Election Commission and a panel of Luzerne County judges who ruled that one of the provisional ballots should be counted and the other should not.
The election commission and county judges ruled, following guidance from state election officials, that a provisional ballot without one of the two required signatures should be counted because the voter’s intent was clear.
A Commonwealth Court panel ruled by a 2-1 majority that the vote should not be counted, citing a statutory requirement that both the declaration and the ballot’s outer envelope must be signed by the voter.
In his letter to the Supreme Court, Walsh says the issue has not been previously decided by the court and is likely to come up in future elections. He also claims the Commonwealth Court ruling conflicts with the Supreme Court’s 2020 ruling.
Citing a separate opinion by Commonwealth Court Judge Matthew Wolf, Walsh argues that a 2020 ruling regarding absentee and mail-in votes with missing or incorrect information requires courts to interpret the Electoral Code in favor of allowing votes to be counted.
Because the vote took place in the presence of election workers and the voter testified as to his or her intentions, the lack of a signature should be considered a “technical error,” Walsh said.
He also claims that the Commonwealth Court panel erroneously ruled that the second provisional vote should be counted because the voter claimed to still be living in Luzerne County, albeit temporarily with her mother. Walsh argued that the voter had already transferred his voter registration to Schuylkill County and could have voted there.
