Luzerne County files legal response in Cabell write-in appeal

Luzerne County Assistant Solicitor Gene Molino filed a memorandum of law Monday in pending litigation stemming from the tight Republican race for state representative in the 117th House District.

Representing the county election board, Molino filed the document detailing the position that Republican write-in votes should not be tallied for incumbent Michael Cabell because his name appeared on that party’s ballot.

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 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.”

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.

At the end of a three-hour hearing on Cabell’s appeal last week, a three-judge county Court of Common Pleas panel gave the election board until noon Monday to file its legal arguments. Cabell will then have until 4:30 p.m. Tuesday to respond.

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

According to Molino’s Monday filing, which refers to the county board of elections and registration as the BOER:

The election board’s decision to not compute the 22 write-in votes was “based upon clear Pennsylvania law.”

Molino’s filing says the March 2004 Pennsylvania Supreme Court ruling deciding write-in votes cast for a named candidate should be counted is “irrelevant to this court’s present analysis.”

The General Assembly subsequently adopted standards in May 2006 stating write-in votes cast for a named candidate are invalid, it said. These standards have the “force and effect of law” and were published in the Pennsylvania Bulletin, it said.

Molino noted the Voting Standards Development Board and its resulting standards stemmed from difficulties various states experienced during the 2000 presidential election.

Congress enacted the Help America Vote Act (HAVA) of 2002, which required each state to “adopt uniform and nondiscriminatory standards that define what constitutes a vote and what will be counted as a vote for each category of voting system used in the state.”

All 67 counties in the state follow these standards, it said.

“To grant the petition for review would be a reversible error and have significant consequences for the entire Commonwealth, not just this one contest in Luzerne County,” the filing said, asking the court to deny and dismiss Cabell’s petition.

Another point was made in the notations stressing the “small vote separation between the candidates is of no moment.”

A candidate can be both nominated and elected to office with one more vote than his or her opponent, it said.

“In the instant matter, however, petitioner wants the BOER and this court to treat the contest for Representative in the General Assembly for the 117th Legislative District differently than every other contest in Luzerne County and every other contest in the Commonwealth of Pennsylvania. This court’s decision cannot be influenced by the vote margin in the subject contest.”

In addition to tallying write-ins, Cabell filed a separate appeal asking the court to count one provisional ballot and reject another.