PA: The Language of Amending

October 25, 2016

By: Melissa Rivera

Imagine walking into the voting booth and reading these words: “Should judges be required to retire on the last day of the year they turn 75 years old?” How would you answer? Would the answer depend upon whether the judges already had to retire at age 70 or if you were being asked to add a whole new requirement? This is exactly the consideration voters in Pennsylvania may be facing when they head out to the polls in November.

On September 16, 2016, the Pennsylvania Supreme Court denied a complaint seeking declaratory judgment and injunction that would prevent the posting of a constitutional amendment on the ballot that the Plaintiff believed was worded ambiguously. The proposed amendment at issue read:

Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges, and magisterial district judges be retired on the last day of the calendar year in which they attain the age of 75?

The controversy over this language began March 6, 2016, when the Pennsylvania Senate Majority Caucus, Senate President Pro Tempore Joseph Scarnati, and Senate Majority Leader Jacob Corman asked the court to strike certain phrases from the proposed amendment that was supposed to be presented to voters during the April 26, 2016 primary. The original wording included the phrase:

instead of the current requirement that they be retired on the last day of the calendar year in which they attain the age of 70?

They argued that this language would confuse and mislead voters, and the proper place for this description was in the plain English statement of the Office of Attorney General as prescribed in 25 P.S. § 2621.1. Although the Court denied making the alteration, on April 6, 2016, the General Assembly passed H.R. 783. This prevented the ballot question from being presented at the primary and required that the reworded question (how it is presented above) be presented on the November ballot.

Subsequently, the Plaintiffs in Sprague v. Cortes challenged the altered wording. They argued that the altered ballot question is unconstitutional because it does not adequately inform voters of the changes they would be making. By failing to include the Constitution’s current retirement requirements, voters are left to guess whether the amendment adds something or merely alters something. According to Plaintiffs, this is inconsistent with the standard in Stander v. Kelly, which requires ballot questions to “fairly, accurately and clearly apprize the voter of the question or issue to be voted on.”

The majority of the Supreme Court ultimately rejects the Plaintiff’s arguments, but not without a split. They defer to the secretary who is given the authority to formulate ballot question under 25 P.S. §§ 2621(c), 2755 and 3010(b). In addition, the Court states that voters are informed by the Attorney General’s plain English statement. Section 201.1 of the Election Code requires the Attorney General to submit a plain English statement describing the “purpose, limitations and effects of the ballot question.” The Election Code further requires the statement to be published and three copies to be published in each polling place. The statement in this case includes the information about the current required retirement age. Therefore, the statement, coupled with the ballot question, informs voters of the constitutional changes for which they are voting.

Not all of the Court was receptive to the above arguments. Some agreed with the Plaintiffs. Those members of the Court thought that the Plain English statement was not enough to inform voters. Voters may not read the newspaper, and crowded polling places may prevent them from reading the posted statements. Therefore, they would require the ballot question itself to give the voters all of the information needed to make an informed decision.

Ultimately, the Court remanded the case to the Commonwealth Court without a binding opinion. As the November election swiftly approaches, only time will tell if the proposed amendment will make it onto the ballot. With the last Republican on the Court turning 70 this year, and a Democratic leaning in the Commonwealth, the implications for the Republican party are stark. If they want to prevent the retirement for another five years, Republicans will need to ensure that this amendment makes it onto the ballot in November.