Jamie Walsh, a Republican state representative candidate, went to Luzerne County Court of Common Pleas on Monday to request the rejection of six mail ballots in his election because the voters did not write the last two numbers of the year on the outer envelope.
The decision from the three-judge panel — Lesa S. Gelb, Tina Polachek Gartley and Richard M. Hughes III — is still pending.
This case was separate from the challenges the county Election Board dealt with last week regarding paper provisional ballots in the 117th District.
Currently, there are four votes that separate the party’s two contenders: Walsh, with 4,728, and the incumbent Mike Cabell, who has 4,724.
The six ballots that Walsh wants to be disregarded were already included in this count.
On the night of the April 23 primary election, the tally initially showed Walsh with an eight-vote lead. However, when the six mail ballots were accepted by the election board on April 26, Walsh was only ahead by five votes — which means Cabell gained more of the six mail votes.
The six mail ballots were part of a batch of 111 in which voters correctly wrote the month and day on the outer envelope but did not add '24' in the empty boxes at the end of the year.
Due to a state redesign of mail ballots that was implemented in all counties for this primary, the '20' in the beginning of the year was pre-filled, but voters were required to write '24' at the end.
A federal appeals court panel recently upheld enforcement of the technical date rule.
The state provided guidance stating that ballots should not be invalidated due to the two year boxes being left blank.
During the April 26 board adjudication session, Election Board Chairwoman Denise Williams mentioned that voters might not have noticed the empty boxes because the first two digits were already filled in. She questioned whether the state should have filled in the entire year instead of just the first half, especially since the outer envelopes are not reused for other elections. Williams expressed support for following this guidance to prevent the disenfranchisement of those voters.
Assistant Solicitors Gene Molino and Paula Radick informed the board about both the court ruling and the state guidance, stating that the decision was up to the board.
Election Board Vice Chairwoman Alyssa Fusaro argued that the date was mandatory based on the court ruling, pointing out that the state guidance has been incorrect in the past.
Election Board member Rick Morelli noted that the month/day was within range for all 111 ballots, and he observed that the timestamp indicating the receipt of the ballots reinforces that the year is 2024.
Fusaro was the only board member to vote against accepting the 111 ballots, while board members Albert Schlosser and Daniel Schramm voted in favor along with Morelli and Williams.
Monday's hearing
Pittsburgh Attorney Gregory H. Teufel represented Walsh on Monday, while Molino and Radick appeared on behalf of the election board. Cabell’s campaign chose not to participate in the court proceeding.
Molino, stressing that he is not taking any side, argued that the challenge over the six mail ballots should be dismissed because it was filed too late.
Molino mentioned a law that says the appeal must be submitted within two days of the board’s April 26 decision to accept the ballots. The challenge was submitted on May 2.
He pointed out that the results of the ballots accepted on April 26 were added to the county’s public election database that evening.
Teufel argued that the two-day period didn't start until April 30, when the county sent a report to the Pennsylvania Department of State.
County Acting Election Director Emily Cook said this report gives the state an update on the current results and what still needs to be counted.
Regarding the debate about whether the ballots should be counted, Molino said the legal advisor presented both the legal rulings and state guidance to the board.
He also mentioned that the board placed the 111 ballots without the final two year digits in a separate category. They decided not to count other ballots with no dates or dates that were outside the April 1-23 period in which mail ballots were allowed to be returned. The board also chose not to count 19 ballots with a correct month and day but the wrong final two digits of the year.
Teufel stated that the law requires a complete date within the specified range.
Judge Polachek Gartley said the panel will consider all the information presented.
Despite Walsh's focus only on the ballots in the 117th District, Molino told the court that the board cannot treat one portion of the 111 ballots differently. If the court decides that the six ballots with two blank years should not be counted, that ruling would apply to all 111, Molino said.
