Rep. Mike Cabell (R-Luzerne) lost his appeal to cumulate 22 write-in votes cast in the April 23 primary election in the 117th Legislative District on Tuesday.

The Commonwealth Court of Pennsylvania upheld the decision of the Court of Common Pleas of Luzerne County from May 15 that rejected Cabell’s appeal of its ruling.

Writing for the Court, Judge Matthew S. Wolf said that the sole issue before the Court was whether the Luzerne Board of Elections and trial court correctly held that the Pennsylvania Election Code prohibited the cumulation of write-in votes for candidates whose names are listed on the ballot. The Court concluded that the Election Code does prohibit and affirmed the Luzerne Court’s order.

Cabell, who presently trails challenger Jamie Walsh by three votes, asked the Board of Elections to cumulate 22 write-in votes cast on May 2. At question was whether writing in the name of a candidate when his/her name is already on the ballot is permissible.

In 2003, the state adopted the “Standards for What Constitutes a Vote” which provides examples of what constitutes valid and invalid votes on paper ballots and on optical scan electronic voting systems.

Regarding optical scan ballots, Optical Scan 14 discusses what constitutes a properly cast write-in vote. It provides:

A properly cast write-in vote shall contain a mark in the target area and, in the space provided, the written name of a candidate whose name does not otherwise appear on the ballot for that office.

Since the General Assembly amended Section 204(h) of the Election Code in 2006, the Court ruled that the Standards, including Optical Scan 14, have had the force and effect of law.

The court must still rule on Walsh’s appeal asking the court to throw out six already counted mail-in ballots. The candidates agree 12 other untallied provisional ballots should count, but state law prevents tabulating them until a decision on all the appeals, putting the final certification on hold.