Cabell replies to Luzerne County filing over write-in tally

Michael Cabell filed a legal response Tuesday in his quest to tally write-in votes, if any, in his tight Republican race for state representative in the 117th House District.

His filing describes the Luzerne County Election Board’s legal argument as “nothing but a red herring.”

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

Cabell is seeking credit for Republican write-in votes, although it’s unclear if any exist for either candidate because the board did not tally and itemize the 22 cast in that race.

The 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.

In addition, the tallying was not completed because 22 write-in votes was not enough for any other candidate to come close to the unofficial vote count of those on the ballot — 4,728 for Walsh and 4,725 for Cabell.

Cabell’s attorney, Shohin H. Vance of Kleinbard LLC in Philadelphia, argued the board’s refusal to review and cumulate the 22 Republican write-in votes in the 117th District must be reversed because “that decision contravenes clear precedent from the Pennsylvania Supreme Court.”

County Assistant Solicitor Gene Molino has said that ruling no longer matters because state legislators subsequently adopted standards developed by the Voting Standards Development Board on what constitutes a vote that include not counting write-ins for candidates when they appear on the ballot in a race.

Molino filed a memorandum of law Monday further detailing this position, and the court gave Cabell until 4:30 p.m. Tuesday to reply.

In his Tuesday filing, Vance argued the Supreme Court ruling still carries weight and “plainly established” write-in votes should be counted for a listed candidate if the “voter’s intent is clear.”

While wording “suggests” a write-in vote should not be cast for a listed candidate, neither the standard referenced by the board nor the election code “expressly provide that such votes should be deemed invalid,” Vance’s filing said.

Molino’s filing had noted all 67 counties in the state follow the standards and that granting the petition would have “significant consequences for the entire Commonwealth, not just this one contest in Luzerne County.”

Vance said Cabell is not suggesting that every county election board must review and tally write-in votes for candidates listed on the ballot “as a matter of course.”

But under the Supreme Court ruling, when a candidate specifically requests such review and action, the board “may not thwart the will of the electorate by refusing to act,” he wrote.

“The standards set forth in the notice are, therefore, just that — standards. And like any standards, subject to certain statutory guardrails and, if necessary, judicial approval, departure from the ordinary manner of tabulation may be warranted,” the filing said.

County Judges Tina Polachek Gartley, Richard M. Hughes III and Fred A. Pierantoni III are presiding over the matter and promised a timely ruling.

In a separate pending matter before the three-judge panel, Cabell asked the court to count one provisional ballot and reject another.

The Republican race is still too close to call due to the outstanding votes.

The board approved a batch of 13 Republican provisional ballots in that race, but they have not been opened and tallied due to Cabell’s appeal of one — a Lake Township ballot he does not want counted.

Depending on the court ruling, which is subject to appeal, there will be 12, 13 or 14 provisional ballots that advance through processing.

Reach Jennifer Learn-Andes at 570-991-6388 or on Twitter @TLJenLearnAndes.


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