[J-59-2024]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.

IN RE: CANVASS OF PROVISIONAL 

BALLOTS IN THE 2024 PRIMARY 

ELECTION

APPEAL OF: JAMIE WALSH

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No. 55 MAP 2024

Appeal from the Order of the 

Commonwealth Court at 628 CD 

2024 dated July 1, 2024 Reversing 

the Order of the Luzerne County 

Court of Common Pleas, Civil 

Division, at 2024-05082 dated May 

15, 2024.

SUBMITTED: August 7, 2024

OPINION

JUSTICE MUNDY DECIDED: September 13, 2024

In this appeal by allowance, Appellant Jamie Walsh challenges the Commonwealth 

Court’s ruling that a particular provisional ballot cast in Luzerne County should not be 

counted because the outer envelope was unsigned. He also disputes that court’s 

separate ruling that a different provisional ballot should be counted because the voter

resided in the election district within 30 days before the date of the election.

I. Background

Walsh and Mike Cabell competed in the April 23, 2024, primary election for the 

Republican nomination to represent the 117th District in Pennsylvania’s House of 

Representatives. Several dozen provisional ballots were returned by voting districts in 

Luzerne County. Walsh led Cabell by three votes before any of them were counted. On 

April 29, 2024, the Luzerne County Board of Elections began hearings for interested 

parties to review the provisional ballots. Cabell challenged a ballot submitted by Timothy 
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Wagner on the basis that the envelope was not signed, and Walsh challenged a 

provisional ballot submitted by Shane O’Donnell, who was registered to vote in McAdoo, 

Schuylkill County. The Board ultimately determined the Wagner ballot should be counted, 

but the O’Donnell ballot should not be counted.

Cabell appealed to the common pleas court, which held a hearing at which Wagner 

and O’Donnell provided testimony. Wagner testified that on election day he went to the 

polling place and was informed by a poll worker that because he had been issued a mailin ballot, but did not return it, he would have to vote by provisional ballot. He followed the 

election worker’s instructions in completing the ballot, placing it in a secrecy envelope, 

and placing that envelope in an outer envelope, the latter of which he was required by 

law to sign. See 25 P.S. § 3050(a.4)(3) (discussed below). Wagner later called a phone 

number he was given at the polling place and was told his ballot had been accepted. At 

the hearing Wagner could not remember whether he had signed the outer envelope, and 

he thought he “probably” did, see N.T., May 9, 2024, at 22, but it turned out he did not. 

In the end, because there was no evidence of fraud and Wagner’s intent to vote for Walsh 

was clear, the county court affirmed the Board’s decision to canvass the ballot.

O’Donnell testified that he appeared at his polling place in Butler Township, 

Luzerne County on election day but the poll workers could not find his name on the voter 

list. They let him vote by provisional ballot because he had previously voted in the district. 

O’Donnell had purchased a home in McAdoo in June 2023, but he resided with his mother 

and brother in Butler Township from that point until March 29, 2024, while his new home 

underwent renovations. O’Donnell noted he had changed the address for his vehicle 

registration in December 2023, and he expressed that PennDOT must have made the 

change to his voter registration at that time.1 Although March 29 was less than 30 days 

1 An election official testified this was consistent with PennDOT’s practice.
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before the election, the trial court affirmed the Board’s decision not to count his vote 

because that decision did not disenfranchise O’Donnell inasmuch as he could have voted 

in his new district in Schuylkill County.

A divided three-judge panel of the Commonwealth Court reversed both rulings in 

a memorandum opinion. In re Canvass of Provisional Ballots in the 2024 Primary 

Election, No. 628 C.D. 2024, 2024 WL 3252970 (Pa. Cmwlth. July 1, 2024) (“Luzerne 

Provisional 2024”). In relation to the Wagner ballot, the majority acknowledged that where 

the language of the Election Code is uncertain, it should be interpreted liberally in favor 

of the right to vote. Here, however, the Election Code states a provisional ballot “shall 

not be counted” if the voter fails to sign the envelope. 25 P.S. § 3050(a.4)(5)(ii). Based 

on the plain language of that provision, the majority held Wagner’s ballot should not be 

counted. In reaching its holding, the majority quoted from a prior unpublished decision in 

which it had arrived at the same conclusion. See Luzerne Provisional 2024, 2024 WL 

3252970, at *4 (quoting In re: Allegheny Cnty. Provisional Ballots in the 2020 Gen. 

Election, No. 1161 C.D. 2020, slip op. at 7-9 (Pa. Cmwlth. Nov. 20, 2020) (“Allegheny 

Provisional 2020”), alloc. denied, 242 A.3d 307 (Pa. 2020)).2

Regarding the O’Donnell ballot, the majority pointed out that under Section 701(3)

of the Election Code a person who moves out of his voting district within 30 days prior to 

the election is allowed to vote in his old district. See 25 P.S. § 2811(3). Because 

O’Donnell moved into his new home less than 30 days before the election, the majority 

held the trial court erred by excluding his ballot. See Luzerne Provisional 2024, 2024 WL 

3252970, at *5.

2 The court noted it may reference such unreported decisions for their persuasive value. 

See id. at 7 n.7 (citing 210 Pa. Code § 69.414(a)).
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Judge Wolf filed a responsive opinion in which he joined the majority with regard 

to the counting of the O’Donnell ballot but dissented as to the Wagner ballot. See id. at 

*5-*7. In this respect, he focused on the precept that election laws should be construed 

liberally in favor of the right to vote, and he characterized Wagner’s failure to sign the 

envelope as a technicality. Given that Wagner’s testimony made his electoral intent clear 

(to vote for Walsh) and given that Wagner had followed the instructions of the poll 

workers, Judge Wolf opined Wagner’s ballot should be canvassed. As to the Allegheny 

Provisional 2020 decision, he expressed that Judge Wojcik issued a dissenting opinion

in that matter faithfully applying this Court’s precedent which suggests courts should not 

“blithely disenfranchise” voters who “merely neglected to enter a signature” on one of the 

documents. Id. at *7 (quoting Allegheny Provisional 2020, slip op. at 5 (Wojcik, J., 

dissenting)).

We granted Walsh’s petition for allowance of appeal in which he raised the 

following issues:

Whether an unsigned provisional ballot should be counted where the voter 

demonstrated “exceedingly clear” electoral intent, acted in conformity with 

instructions of election officials and subsequently verified that his ballot had 

been counted?

Whether a provisional ballot submitted by a voter domiciled and registered 

to vote elsewhere should be rejected?

See In re: Canvass of Provisional Ballots in the 2024 Primary Election (Petition of Walsh), 

___ A.3d ___, 2024 WL 3517407 (Pa. July 24, 2024) (per curiam).

II. The Wagner ballot

Walsh contends that where a voter’s intent is clear, there is no fraud, the voter 

follows the direction of election officials, and later verifies his vote was accepted, his vote 

should be canvassed. He acknowledges that Allegheny Provisional 2020, on which the 

panel below relied, held such votes should not be counted, but he points out that decision 
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was unpublished, and thus, non-binding. Furthermore, Walsh posits that it appears to 

conflict with this Court’s ruling in In re Canvass of Absentee and Mail-In Ballots of 

November 3, 2020 General Election, 241 A.3d 1058 (Pa. 2020) (“Absentee & Mail-In 

2020”), which reinforced that wherever possible, provisions regulating the elective 

franchise should

be so construed as to insure rather than defeat the exercise of the right of 

suffrage. Technicalities should not be used to make the right of the voter 

insecure. No construction of a statute should be indulged that would 

disfranchise any voter if the law is reasonably susceptible of any other 

meaning.

Id. at 1062 (Opinion Announcing the Judgment of the Court) (quoting Appeal of James, 

105 A.2d 64, 65-66 (Pa. 1954)).

Walsh portrays Absentee & Mail-In 2020 as holding that, although the Election 

Code used “shall” with respect to dating absentee and mail-in ballot envelopes, the word 

was held to be directory and not mandatory because the date was “unnecessary.” This 

meant ballots lacking a hand-written date should be counted notwithstanding the statutory 

“shall.” Walsh argues Wagner’s signature was likewise unnecessary as his name was 

already on the list of persons to receive a mail-in ballot, and then he showed up in person 

to vote by provisional ballot. See Brief for Appellant at 17-18 (citing Absentee & Mail-In 

2020, 241 A.3d at 1076-77). Walsh additionally emphasizes Wagner provided a fullyexecuted affidavit attesting that the ballot was the only one he submitted in that election. 

See 24 P.S. § 3050(a.4)(2). As such, Walsh characterizes the envelope signature 

requirement as “unnecessary and superfluous.” Brief for Appellant at 19.

The Luzerne County Board of Elections has filed a brief denominated as an 

Appellee’s brief, although it favors reversal of the Commonwealth Court’s ruling as to the 

Wagner ballot. In its brief, the Board largely agrees with Walsh’s arguments, but it adds 
[J-59-2024] - 6

that under the Free and Equal Elections Clause,3the electoral process must, “to the 

greatest degree possible, be kept open and unrestricted.” Brief for Appellee (Board) at 

16 (quoting League of Women Voters v. Commonwealth, 178 A.d 737, 804 (Pa. 2018)). 

In this vein, the Board suggests voting regulations are constitutionally suspect if they 

“deny the franchise itself, or make it so difficult as to amount to a denial.” Id. (quoting

Winston v. Moore, 91 A. 520, 523 (Pa. 1914)).4

Article XII of the Pennsylvania Election Code5relates to the conduct of primaries 

and elections.

6

 Within Article XII, Section 1210 lists, inter alia, the steps for voting by 

provisional ballot. See 25 P.S. § 3050. When an elector arrives at the polling place, if 

there is any doubt about his eligibility to vote, he may cast a provisional ballot. See id. 

§ 3050(a.2). Before doing so, pursuant to paragraph (a.4) he must execute an affidavit 

giving information such as his name, date of birth, and address at the time of registration. 

See id. § 3050(a.4)(2). Paragraph (a.4) continues, in relevant part:

3 PA. CONST. art. I, § 5 (“Elections shall be free and equal; and no power, civil or military, 

shall at any time interfere to prevent the free exercise of the right of suffrage.”).

4

 The Pennsylvania Department of State and Secretary of the Commonwealth Al Schmidt 

have filed a joint amicus brief arguing the Wagner ballot should be counted, but the 

O’Donnell ballot should not. As well, the Democratic National Committee and the 

Pennsylvania Democratic Party have filed a joint amicus brief in favor of counting the 

Wagner ballot while taking no position on the O’Donnell ballot.

Separately, In This Together Northeast PA, which also supports the counting of the 

Wagner ballot, seeks leave to file an amicus brief out of time. The parties have all filed 

no-answer letters. Leave to file is granted in light of multiple factors: the condensed 

briefing schedule, the filing of the brief before Cabell’s brief was due, and the parties’ 

decision not to object.

5 Act of June 3, 1937, P.L. 1333, No. 320 (as amended 25 P.S. §§ 2601-3591).

6 Under the Election Code, “election” is defined as “any general, municipal, special or 

primary election, unless otherwise specified.” 24 P.S. § 2602. Nothing in Article XII or 

Section 1210 specifies any other meaning.
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(3) After casting the provisional ballot, the individual shall place it in a 

secrecy envelope. The individual shall place the secrecy envelope in the 

provisional ballot envelope and shall place his signature on the front of 

the provisional ballot envelope. All provisional ballots shall remain sealed 

in their provisional ballot envelopes for return to the county board of 

elections.

* * * * *

(5)(i) Except as provided in subclause (ii), if it is determined that the 

individual was registered and entitled to vote at the election district where 

the ballot was cast, the county board of elections shall compare the 

signature on the provisional ballot envelope with the signature on the 

elector’s registration form and, if the signatures are determined to be 

genuine, shall count the ballot if the county board of elections confirms that 

the individual did not cast any other ballot, including an absentee ballot, in 

the election.

(ii) A provisional ballot shall not be counted if: (A) either the 

provisional ballot envelope under clause (3) or the affidavit under clause 

(2) is not signed by the individual; (B) the signature required under 

clause (3) and the signature required under clause (2) are either not 

genuine or are not executed by the same individual; . . .

Id. § 3050(a.4)(3), (5)(i), (ii)(A), (B) (emphasis added).

Although the above plainly states that an elector voting by provisional ballot “shall”

sign the front of the provisional ballot envelope, id. § 3050(a.4)(3), there have been times 

when this Court has interpreted the word “shall” as directory rather than mandatory –

meaning the failure to complete the action did not result in the ballot’s disqualification. In 

Absentee & Mail-In 2020, we addressed whether county election boards should canvass 

absentee and mail-in ballots where the declaration on the outer envelope lacked certain 

information to be supplied by the voter. Some of these items were required under 

guidance issued by the Secretary of the Commonwealth, while others were mandated by 

the Election Code itself. In this latter respect, Section 1306(a) specified that, for absentee 

voters, after placing the secrecy envelope containing the ballot inside the outer envelope, 

“[t]he elector shall then fill out, date and sign the declaration printed on such envelope.” 

25 P.S. §3146.6(a) (emphasis added). Section 1306-D contained an identical instruction 
[J-59-2024] - 8

for mail-in voters. See id. § 3150.16(a); see also Absentee & Mail-In 2020, 241 A.3d at 

1063-64 (quoting these provisions).

In that matter, this Court was divided over whether a missing date disqualified a 

ballot. The three Justices in the plurality concluded the word “shall” in these provisions 

was directory and not mandatory, reasoning that no “weighty interests” were served by 

having the elector supply the date. The plurality thus found it would be inappropriate to 

disqualify the ballot due to the date’s omission. See id. at 1076-78.7 Dissenting on that 

point, three other Justices viewed the date as serving weighty interests such as providing

a point in time against which to measure the elector’s eligibility to cast the ballot, and 

ensuring the elector completed it within the proper timeframe. They accordingly viewed 

the statutory language as mandatory. See id. at 1090-91 (Dougherty, J., concurring and 

dissenting). For his part, Justice Wecht opined the date requirement is “stated in 

unambiguously mandatory terms,” and he observed nothing in the Election Code 

suggests it should be construed as merely directory. He nonetheless provided the fourth 

vote for the result, noting he would only apply his interpretation prospectively due to the 

“circumstances under which the issue has arisen[.]” Id. at 1079-80 (Wecht, J., concurring 

and dissenting); see also Ball v. Chapman, 289 A.3d 1, 9-11 (Pa. 2023) (Opinion by 

Wecht, J., more fully summarizing the judicial expressions in Absentee & Mail-In 2020). 

The upshot is that when we decided Absentee & Mail-In 2020 four years ago, a majority 

of this Court agreed that the phrase “shall then . . . date” should, as a matter of 

7 See also Shambach v. Bickhart, 845 A.2d 793, 801-02 (Pa. 2004) (finding the Election 

Code’s provision that an elector may write in the name of a person not already on the 

ballot was directory; therefore, write-in votes for a person already on the ballot should be 

counted – particularly as the Election Code did not specify that such votes should not be 

counted); In re Luzerne Cnty. Return Bd., 290 A.2d 108, 109 (Pa. 1972) (where the 

Election Code required ballots to be marked in blue, black, or blue-black ink, reasoning 

the purpose of such provision was to prevent ballots from being identifiable, and holding 

ballots marked in green or red ink should be counted – particularly as the Election Code 

did not specify that any other color ink would void the ballot).
[J-59-2024] - 9

Pennsylvania law, be deemed mandatory for all cases subsequent to that decision. 

Accord Ball, 289 A.3d at 28.

Presently, the “shall place his signature” language in paragraph 3050(a.4)(3) is 

equally clear and unambiguous, and the interests it serves are evident from the statute

itself: the Board must compare the signature on the outer envelope with the one on the 

elector’s registration form to assess whether it is genuine and executed by the same 

person who signed the affidavit. Only then is the board permitted to count the ballot. See

25 P.S. § 3050(a.4)(5)(i). See generally Anderson v. Celebrezze, 460 U.S. 780, 788 

(1983) (recognizing States have “important regulatory interests” in orderly elections, and 

those interests are sufficient to justify the enforcement of reasonable, nondiscriminatory 

rules governing candidate eligibility, voter registration, and the voting process). And 

Section 1210 buttresses this requirement by directing that a provisional ballot with an 

unsigned envelope “shall not be counted.” Id. § 3050(a.4)(5)(ii). The General Assembly 

has thus spelled out the consequences for an elector’s failure to sign the outer envelope

– a factor that distinguishes this case from Absentee & Mail-In 2020, Shambach, and 

Luzerne County Return Board. See supra note 7; see also Oncken v. Ewing, 8 A.2d 402, 

404 (Pa. 1939) (“If the law itself declares a specified [election] irregularity to be fatal the 

courts will follow that command, irrespective of their views of the importance of the 

requirement.”) (internal quotation marks and citation omitted). Because there is no 

ambiguity in this language, there is presently no room for application of the concept that 

“technicalities should not be used to make the right of the voter insecure,” James, 105 

A.2d at 66, or the interpretive principle that the Election Code is subject to a liberal 

construction in favor of the right to vote. Those precepts are venerable and well 

established, but they only apply where there is some uncertainty about what the Election 

Code requires. There is no uncertainty here. See generally Absentee & Mail-In 2020, 
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241 A.3d at 1089 (Wecht, J., concurring) (“In case after case involving the Election Code, 

. . . we have been reminded how important it is that the General Assembly provide 

unambiguous guidance for the administration of the election process. But it is imperative 

that we recognize when the legislature has done precisely that, and resolve not to 

question the legislature’s chosen language when it has done so.”).

Because the statute contains no exceptions, moreover, it does not allow for

differential treatment where the voter’s electoral intent is clear and there is no suggestion 

of fraud, or where the voter is later informed by telephone that the ballot was accepted. 

These considerations are presently forwarded as reflecting equitable principles, but we 

have held that where the General Assembly “has attached specific consequences to 

particular actions or omissions, Pennsylvania courts may not mitigate the legislatively 

prescribed outcome through recourse to equity.” In re Guzzardi, 99 A.3d 381, 386 (Pa. 

2014). That being the case, the Board’s decision to canvass the Wagner ballot, and the 

county court’s affirmance of that decision, failed to comply with the Election Code’s 

requirements.8

In the dissenting portion of her responsive opinion, Justice Donohue proposes that 

the above procedures do not apply to an elector who is issued a mail-in ballot and then 

shows up on election day to vote in person. Although such individuals are directed to 

“vote by provisional ballot under section 1210(a.4)(1),” 25 P.S. § 3150.16(b)(2), the 

dissent views the concept of casting a ballot “under” that paragraph as distinct from 

8 There is no suggestion in the record, nor did the trial court find as a fact, that the election 

workers told Wagner not to sign the envelope. Wagner testified he was told he did not 

have to date some unspecified document, see N.T., May 9, 2024, at 22, but he never 

claimed he was told not to sign the outer envelope. As noted above, at the trial court 

hearing Wagner thought he “probably” did sign that envelope. Id. at 24.

The issue before us might be different if the record reflected that the government or its 

agents affirmatively dissuaded Wagner from signing the envelope. We leave for another 

day whether that difference would materially change our analysis.
[J-59-2024] - 11

casting a ballot “in accordance with subsection [1210](a.4),” 25 P.S. § 3050(a.2), noting 

further that the General Assembly “pinpointed” paragraph (1) of subsection (a.4). 

Concurring and Dissenting Op. at 9. The dissent thus asserts that only paragraph (a.4)(1) 

applies in that type of situation, and so paragraphs (a.4)(2)-(12) have no application. See 

id. at 9-10 (indicating “the other provisions that fall under Section 3050(a.4)” including the 

signature and signature-comparison requirements of (a.4)(3) and (5), “simply do not 

apply” to voters in Wagner’s circumstances).

Paragraph (a.4)(1) states, in its entirety:

At all elections an individual who claims to be properly registered and 

eligible to vote at the election district but whose name does not appear on 

the district register and whose registration cannot be determined by the 

inspectors of election or the county election board shall be permitted to cast 

a provisional ballot. Individuals who appear to vote shall be required to 

produce proof of identification pursuant to subsection (a) and if unable to do 

so shall be permitted to cast a provisional ballot. An individual presenting 

a judicial order to vote shall be permitted to cast a provisional ballot.

25 P.S. § 3050(a.4)(1).9 As can be seen, paragraph (a.4)(1) allows a voter to “cast a 

provisional ballot” but it includes no method for doing so. The remaining paragraphs are 

integrally intertwined with paragraph (1) as they spell out the mechanics by which the 

ballot referred to in paragraph (1) is to be cast and handled thereafter by the poll workers 

and the county election board.10 Such paragraphs are thus essential to the operation of 

the scheme by which any provisional ballot may be cast.

9 The above references proof of identification pursuant to subsection (a), which provides, 

in full: “(a) At every primary and election each elector who appears to vote and who 

desires to vote shall first present to an election officer proof of identification. The election 

officer shall examine the proof of identification presented by the elector and sign an 

affidavit stating that this has been done.” Id. § 3050(a).

10 See, e.g., id. § 3050(a.4)(3) (requiring all provisional ballots to remain in their sealed 

envelopes for return to the county election board); id. § 3050(a.4)(4) (requiring the 

election board to examine provisional ballot envelopes within seven days after the 

election and giving the means for challenges); id. § 3050(a.4)(8) (requiring the judge of 

(continued...)
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In contrast, under the dissent’s interpretation, because only paragraph (a.4)(1) 

would pertain there would be no statutory methodology at all. There would be no 

requirement that the voter place the ballot in a secrecy envelope or that the ballot be 

sealed in an outer envelope for return to the county election board, nor would the voter 

need to sign an affidavit attesting that this is the only ballot he is casting in the present 

election – as those mandates are stated in paragraphs (a.4)(2) and (3). The ballot could 

remain “naked” with no statutory instructions concerning how it is to be handled. 

Furthermore, there could remain nothing associated with the ballot to record the fact that 

a particular voter cast it, as ballots do not themselves have such identifying information. 

While the poll workers may have no record that the elector’s mail-in ballot was already 

received, mail-in ballots need not arrive at the county election board until 8:00 p.m. on 

election night. This could open up an opportunity for double-voting.

In characterizing its reading as giving rise to an ambiguity, the dissent makes no 

mention of what procedure would be required by law, opting instead to focus on the 

concept that one of the difficulties the signature mandate alleviates is less compelling 

where the election workers are able to locate the person’s name on the district register 

as someone who requested a mail-in ballot. But even assuming arguendo the need for 

a signature on the outer envelope is not as pronounced in that instance as in other 

scenarios, see Concurring and Dissenting Op. at 11-13 (referring to the “mischief to be 

remedied” in each circumstance), the dissent does not explain why all the other 

mechanical facets of paragraphs (a.4)(2)-(12) are unnecessary – and it would be arbitrary 

to view some but not all of the procedural requirements inherent in paragraphs (a.4)(2)-

(12) as being presently applicable.

elections to certify the total number of provisional ballots cast and transmitted to the 

election board).
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A more natural reading – and one that avoids a result that is “absurd, impossible 

of execution or unreasonable,” 1 Pa.C.S. § 1922(1) – is that the General Assembly 

intended that any provisional ballot cast “under” (a.4)(1) necessarily implicates the 

procedures given in the succeeding paragraphs for how that ballot is to be cast and 

treated thereafter.

Finally, we are not persuaded constitutional principles require us to ignore such 

statutory requirements. Although the Board references this Court’s pronouncement that 

voting regulations may not “deny the franchise itself, or make it so difficult as to amount 

to a denial,” Winston v. Moore, 91 A. 520, 523 (Pa. 1914), the Board does not indicate 

how a statute that requires an elector voting by provisional ballot to sign the ballot’s outer 

envelope denies the franchise or makes it so difficult as to amount to a denial.

III. The O’Donnell ballot

Turning now to the O’Donnell ballot, Walsh contends the Commonwealth Court 

erred in allowing that ballot to be canvassed given that O’Donnell’s voter registration had 

been transferred to Schuylkill County. He argues O’Donnell always intended to return to 

his home that was undergoing renovations, which was therefore O’Donnell’s legal 

domicile well before he physically moved back there. Cabell responds that the panel’s 

interpretation of Section 701 was sound and accorded with its plain terms, which state:

Every citizen of this Commonwealth eighteen years of age, possessing the 

following qualifications, shall be entitled to vote at all elections, provided 

he or she has complied with the provisions of the acts requiring and 

regulating the registration of electors:

(1) He or she shall have been a citizen of the United States at least one 

month.

(2) He or she shall have resided in the State ninety days immediately 

preceding the election.
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(3) He or she shall have resided in the election district where he or she shall 

offer to vote at least thirty days immediately preceding the election, except 

that if qualified to vote in an election district prior to removal of residence, 

he or she may, if a resident of Pennsylvania, vote in the election district 

from which he or she removed his or her residence within thirty days 

preceding the election.

25 P.S. § 2811 (emphasis added). Cabell notes the trial court found O’Donnell physically 

moved out of his mother’s house and into his newly-renovated house on March 29, 2024, 

which was within 30 days preceding the election, and he argues we should not disturb 

that finding as it is supported by O’Donnell’s testimony.

A person’s legal residence is not simply “wherever he says it is or where he says 

he intends it to be.” In re Stabile, 36 A.2d 451, 452 (Pa. 1944) (emphasis in original). It 

is a question of fact to be determined based on the evidence of record. See id. While a 

person may have several residences, see Melmark, Inc. v. Schutt, 206 A.3d 1096, 1102 

n.4 (Pa. 2019), “only one of those residences may qualify as that person’s residence or 

domicile for purposes of the Election Code.” In re Nomination Petition of Driscoll, 847 

A.2d 44, 49-50 (Pa. 2004). Under Section 704 of the Election Code, when determining a 

voter’s residence, the following rules, where applicable, are to be followed:

(a) That place shall be considered the residence of a person in which 

his habitation is fixed, and to which, whenever he is absent, he has the 

intention of returning.

(b) A person shall not be considered to have lost his residence who 

leaves his home and goes into another state or another election district 

of this State for temporary purposes only, with the intention of returning.

(c) A person shall not be considered to have gained a residence in any 

election district of this State into which he comes for temporary purposes 

only, without the intention of making such election district his permanent 

place of abode.

(d) The place where the family of a married man or woman resides shall 

be considered and held to be his or her place of residence, except where 

the husband and wife have actually separated and live apart, in which 
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case the place where he or she has resided for two months or more shall 

be considered and held to be his or her place of residence.

(e) If a person removes to another state with the intention of making 

such state his permanent residence, he shall be considered to have lost 

his residence in this State.

(f) If a person removes to another state with the intention of remaining 

there an indefinite time and making such state his place of residence, 

he shall be considered to have lost his residence in this State, 

notwithstanding he may entertain an intention to return at some 

indefinite future period.

(g) If a person removes to the District of Columbia or other Federal 

territory or foreign country to engage in the government service, he shall 

not be considered to have lost his residence in this State during the 

period of such service, and the place where the person resided at the 

time of his removal shall be considered and held to be his place of 

residence.

(h) If a person goes into another state and while there exercises the right 

of a citizen by voting, he shall be considered to have lost his residence 

in this State.

25 Pa.C.S. § 2814; see also 25 Pa.C.S. § 1302(b) (reflecting a similar list of rules for 

determining residence).

A review of these rules demonstrates that intent does play a crucial role in the 

establishment of residency under the Election Code. For example, under the first rule a 

person’s move to another election district does not divest that person of residency in the

original district where that person intends the move to be temporary and intends to return. 

A similar focus on intent is evident from rules (c), (e), and (f). Accord Driscoll, 847 A.2d 

at 50 (explaining a person cannot simply declare a new residence by purchasing a home; 

that person must intend to live there permanently); see also In re Lesker, 105 A.2d 376, 

380 (Pa. 1954) (distinguishing a “tarrying place for some specific purpose of business or 

pleasure” from a “fixed, permanent, final home to which one always intends to return”). 

Because of this, Walsh emphasizes O’Donnell always intended to live permanently in the
[J-59-2024] - 16

McAdoo home he purchased in June 2023. Walsh posits such intent is only confirmed 

by O’Donnell’s act of changing his vehicle registration to that address in December 2023, 

well over 30 days before the election. See Brief for Appellant a 22-23.

While these arguments are forceful as to the intent element, they omit 

consideration of the date O’Donnell moved to McAdoo. The trial court found as a fact 

that O’Donnell physically moved to his new house on March 29, 2024. As that finding 

was based on O’Donnell’s testimony, which the trial court expressly credited, see In re: 

Canvass of Provisional Ballots in 2024 Primary Election, slip op. at 5 (C.P. Luzerne May 

22, 2024) (unnumbered), reprinted in Brief for Walsh at Exhibit B, we will not disturb it.

11

 

This factor is relevant because the Election Code’s rules pertaining to residence (listed 

above) reflect that a person’s intent to stay in a place must be combined with a physical 

move to that place in order for a new residence to be established. There is no suggestion 

that establishment of a new place of residence can be accomplished through intent only

prior to the actual relocation. Accord In re Prendergast, 673 A.2d 324, 327-28 (Pa. 1996)

(“A new domicile can be acquired only by physical presence at a new residence plus 

intent to make that new residence the principal home.”); In re Hanssens, 821 A.2d 1247, 

1251-52 (Pa. Cmwlth. 1998) (same). We therefore agree with the Commonwealth Court 

and the trial court that O’Donnell’s residence for Election Code purposes remained in 

Butler Township until March 29, 2024.

11 Appellate courts review deferentially the facts as found by the trier of fact, who hears 

witness testimony first-hand and is thus better positioned to evaluate the credibility of the 

evidence. See Commonwealth v. Johnson, 231 A.3d 807, 818 (Pa. 2020). Here, the 

finding is adequately supported by the record. O’Donnell’s testimony reflects that when

he purchased the house it was “basically unlivable,” and thus, a great deal of work had to 

be done before he could move in. N.T., May 9, 2024, at 31-32. While O’Donnell may 

have spent a few sporadic nights at the house, this was only to oversee the work that was 

taking place, and he did not move most of his belongings there, and move in with the 

intent of staying, until March 29, 2024. See id. at 32-33.
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Still, the Board argues that on election day O’Donnell could have voted in his new 

election district in Schuylkill County based on PennDOT having transferred his voter 

registration to that location in response to the change to his vehicle registration. See Brief 

for Appellee (Board) at 19-22. The Board references provisions of the National Voter 

Registration Act (NVRA),

12 and the Pennsylvania Voter Registration Act (PVRA),13 under 

which motor-vehicle driver’s license applications trigger voter registrations or registration 

changes. See id. at 20-21 (citing 25 Pa.C.S. § 1323; 52 U.S.C. §§ 20502, 20504). 

Conceding that the definition of a driver’s license for NVRA purposes is limited to a stateissued “personal identification document,” 52 U.S.C. § 20502(3) (emphasis added), the 

Board nonetheless insists such definition encompasses a vehicle registration. The Board 

adds that, once O’Donnell’s registration was thus transferred in compliance with NVRA 

and PVRA, he lost his legal authorization to vote in Butler Township. See 25 Pa.C.S. 

§ 1301.

The Board’s argument is not well taken. In the first place, there is little reason to 

believe Congress intended the term “personal identification document” to subsume 

vehicle registration documents – and the Board cites no authority for that tenuous reading. 

For its part, in passing PVRA the General Assembly clearly had a different 

understanding,14 as PVRA only authorizes PennDOT to provide a simultaneous 

application for voter registration, including an application to update an existing voter 

registration, in conjunction with the process for obtaining a driver’s license per 75 Pa.C.S. 

12 Pub. L. No. 103-31, 107 Stat. 77, May 20, 1993 (codified as amended at 52 U.S.C. 

§§ 20501-20511).

13 Act of Jan. 31, 2002, P.L. 18, No. 3 (codified as amended at 25 Pa.C.S. §§ 1301-1329).

14 PVRA was intended to adopt NVRA’s voter registration requirements so as to allow

Pennsylvania to maintain a single voter registry for federal, state, and local elections. See 

In re Vodvarka, 140 A.3d 639, 648 (Pa. 2016), superseded by statute on other grounds, 

as recognized by In re Major, 248 A.3d 445, 447-48 (Pa. 2021).
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§ 1510.15 Any administrative decision by PennDOT or the Pennsylvania Department of 

State to transfer an elector’s voter registration without that person’s affirmative consent 

in conjunction with a PennDOT application to change a vehicle registration, as opposed 

to a driver’s license, is therefore of questionable validity, particularly where, as here, no 

party has identified a valid administrative regulation authorizing such action.

Even if we were to accept arguendo that O’Donnell’s voter registration was validly 

changed in combination with the change to his vehicle registration, he could not have 

lawfully voted in the new district because he did not reside there until March 29, 2024. 

See PA. CONST. art. VII, § 1(3) (setting forth as a qualification to vote that a person must 

have “resided in the election district . . . at least sixty (60) days immediately preceding the 

election”).16 Moreover, his entitlement to vote in Butler Township was guaranteed by 

Section 701(3) of the Election Code, see 25 P.S. § 2811(3), so long as his change of 

residence occurred within 30 days prior to the election – unless there is some reason to 

believe Section 701(3) did not apply under the present circumstances. Along these lines, 

the Board highlights that Section 1301(c) of PVRA, see 25 Pa.C.S. § 1301(c), reflects a 

general rule that a residence change results in an elector losing his right to vote in his old 

district. If set forth without exception, that rule might conflict with Section 701(3) of the 

Election Code. But it is not without exception: it is stated to be “except as provided by 

law,” which necessarily includes Section 701.17 While certainly O’Donnell could not 

15 See 25 Pa.C.S. § 1323(a); see also id. § 1321 (reflecting four ways an individual may 

register to vote, including by applying for a driver’s license, but not including applying for 

a vehicle registration or a registration change).

16 We offer no opinion concerning the difference between the statutory 30 days and the 

60 days reflected in the Constitution, as no such issue has been raised in this case.

17 To be precise, Section 1301(c) is made applicable “except pursuant to the provisions 

of this section,” one of which is subsection 1301(b). That subsection, in turn, states that 

“[n]o individual shall be permitted to vote at any election unless the individual is registered 

under this subsection, except as provided by law[.]” 25 Pa.C.S. § 1301(b) (emphasis 

(continued...)
[J-59-2024] - 19

lawfully vote in two places in the same election, where, as here, his residence changed 

“within thirty days preceding the election,” he was “entitled to vote” in his old district. 25 

P.S. § 2811(3); see also PA. CONST. art. VII, § 1 (directing that every qualified elector 

“may, if a resident of Pennsylvania, vote in the election district from which he or she 

removed his or her residence within sixty (60) days preceding the election”).

Finally, the Board contends this result will lead to confusion among county election 

officials. See Brief for Appellee (Board) at 22. The legislatively designed provisionalballot mechanism seeks to alleviate some of this confusion by allowing a vote to be cast 

and any issues raised with respect to that vote to be cleared up within a reasonable 

interval after the election. In handling provisional ballots in the post-election timeframe, 

county election boards are directed to consult the governing law as clarified by the 

analysis contained in judicial decisions such as this one. In all events our obligation in 

resolving the present appeal is to faithfully interpret and apply that law. Any lingering 

confusion is a matter to be remedied by the General Assembly and/or the appropriate 

administrative agencies to the extent of their authorization.

IV. Conclusion

For the reasons given above, the order of the Commonwealth is affirmed.

Chief Justice Todd and Justices Dougherty, Wecht and Brobson join the opinion.

Justice Wecht files a concurring opinion in which Justice Brobson joins.

Justice Donohue files a concurring and dissenting opinion in which Justice 

McCaffery joins.

added). To the extent there is any doubt about how these statutory provisions interact, 

as explained above it must be resolved to protect the franchise.