As it stands based on court appeals, a dozen unopened provisional ballots could decide whether incumbent Michael Cabell or challenger Jamie Walsh wins the Republican nomination for state representative in the 117th District.
Because more than two months has passed since these 12 ballots were last publicly addressed, some may be unaware why they were not counted with other April 23 primary election ballots and where the voters reside.
Provisional paper ballots are cast at polling places when workers determine additional verification is needed for various reasons. During post-election adjudication, the county’s five-citizen election board reviews provisional ballots last to verify the voters were registered and did not also cast a mail ballot.
The election board had to hold a May 3 hearing on the 12 because they were challenged by Walsh.
Following a review of evidence, the board unanimously voted to accept all 12 provisional ballots.
Walsh’s initial objections to these ballots included outer envelope issues associated with stickers for voters to track their ballots and unchecked party affiliation boxes. His attorney withdrew a few objections during the May 3 proceeding and did not appeal any of the board’s decisions to accept this batch to the county Court of Common Pleas.
Even though the 12 were not challenged further, the county said the unsealing and tallying of all remaining outstanding provisional ballots in that race had to wait until appeals on other provisional ballots were adjudicated, which is why they have not yet been opened.
The 12 ballots were cast by these voters, according to the county: Nadine Simpson, Dorrance Township; Arnold Hardman, Harveys Lake; Catherine Cilvik, Harveys Lake; Daryl Chipeleski, Black Creek Township; Andrew Wesner, Sugarloaf Township District 1; Sharon Horensky, Dorrance Township; Larry Mills, Butler Township District 1; Carol Mills, Butler Township District 1; Dona Reinmiller, White Haven; David Horensky, Dorrance Township; Gloria Ricco, Butler Township District 3; and Michael Hess, Fairmount Township.
When the county determines it is free to process the 12 ballots, the county election board will follow its standard adjudication procedures by reviewing and opening them at a public meeting that will be publicly advertised in advance, said county Assistant Solicitor Gene Molino.
As background, provisional ballots must be inside blank inner secrecy envelopes. The secrecy envelopes are put in a separate pile and shuffled so the ballots inside (and thus selections) cannot be linked to any individual voter.
It’s unclear if the opening will occur before the 10-day appeal period has passed to contest a July 1 Commonwealth Court ruling on two other provisional ballots that were challenged by Cabell and also part of the board’s May 3 hearing.
Commonwealth Court granted Cabell’s request to tally a Butler Township ballot cast by his cousin, Shane O’Donnell, and reject another cast by Lake Township voter Timothy J. Wagner.
Thursday, July 11, is the deadline to appeal this ruling to the Pennsylvania Supreme Court. Walsh has said he was reviewing all pending rulings with his attorney to determine how he will proceed.
The county election board also has the option to appeal, but that decision would have to weigh the use of taxpayer funds for legal fees to further contest a case involving two ballots that already has been decided at an appeal level.
Cabell’s legal counsel said O’Donnell’s ballot should be counted because he did not officially relocate to McAdoo borough in Schuylkill County until March 29, and there is a 30-day window to vote at a prior residence preceding an election.
The board’s legal counsel said that option does not apply because O’Donnell changed his voter registration to McAdoo when he switched his vehicle registration to the new address in December. A county Court of Common Pleas panel had affirmed the election board’s decision to not count the ballot.
Commonwealth Court’s opinion said the facts show O’Donnell would not have been permitted to vote in McAdoo because he did not reside there at least 30 days preceding the election.
Regarding Wagner’s provisional ballot, Cabell argued it should not be counted because Wagner did not sign the outer envelope a second time when handing it in at the polling place.
The county Court of Common Pleas panel had agreed with the election board’s decision to accept the ballot, saying the Pennsylvania Supreme Court “has repeatedly recognized the need to construe the Election Code liberally in favor of enfranchisement where fraud is not an issue and a voter’s intent is clear.”
A majority of two judges on the Commonwealth Court panel issued the opinion reversing the county court decision, citing the mandatory signature requirement in state law. The third judge dissented from this opinion, saying Wagner’s electoral intent was “exceedingly clear” and that technical nonconformance with Election Code provisions is ‘not always fatal.”
Contacted late last week, Wagner said he is “very disappointed” in the ruling.
Officials said he had to vote provisionally because he was issued a mail ballot and did not surrender the mail ballot materials at the polling place to be voided so he could vote on the machines.
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.
Wagner said he agrees with some that the second signature requirement is excessive. He said he was aggravated by the whole process and was not verbally instructed by the poll worker to sign the second time before he turned in the provisional packet.
“I wanted to get it done and get out of there,” said Wagner, a veteran who had testified during a May 9 county court hearing on the matter. “It’s heartbreaking to think this ballot won’t be counted.”
Current status
Walsh and Cabell are three votes apart, with Walsh in the lead.
If the Commonwealth Court ruling holds, Cabell is expected to pick up a vote from O’Donnell, which would put Walsh two votes ahead. Wagner had said he voted for Walsh, but that vote would not be counted under the ruling.
Before tallying any outstanding provisional ballots, the board would have to unseal them to make sure the ballots are inside the required inner secrecy envelopes.
Assuming the other 12 are in order, there are a range of potential mathematical result scenarios that could put either candidate in the lead or even leave them tied.
Walsh had attempted to increase his three-vote lead by throwing out six mail ballots that contained a majority of votes for Cabell that already were tallied and incorporated into the vote results. Walsh argued the ballots were invalid because the voters did not fill in the last two digits of the year on the outer envelope, but Commonwealth Court upheld the county court ruling to accept these ballots. The deadline is Saturday, July 13, to appeal that ruling to the state Supreme Court.
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