To help chances for voter approval, Republicans sought confusing change of language, or delay
Throughout the week, no one at the capitol seemed to know whether this important proposed change to the constitution would actually make it on to the ballot in April. The way they kicked this around you would have thought we were talking about a lunch menu or a laundry list, and not a constitutional amendment.
It’s on again, it’s off again, and it’s on again.
No, we’re not taking about the lights in the state capitol, or even the state budget.
We’re talking about an attempt to change the state constitution to allow judges an extra five years on the bench.
The ill-timed proposal to amend the state constitution to increase the mandatory retirement age of judges from 70 to 75 will appear on the ballot this April 26 primary election after all.
Whether the ballot question would make it before voters in April became doubtful over the last week.
Earlier in March, State Senate Republicans, led by Senate President Pro Tempore Joe Scarnati and Sen. Jake Corman, filed an emergency appeal with the state Supreme Court seeking a last-minute change to the language of the ballot question.
The Republican leadership asked the court to change the ballot question to remove all mention that the current retirement age of judges is 70.
Lawyers for Governor Tom Wolf and the attorney general’s office accused the Republicans of trying to confuse voters.
“Amending the Ballot Question in the manner suggested by (GOP Senate leaders) would likely leave the voter wondering what the current requirement is—or worse yet, leave the voter with the impression that there is currently no requirement (for retirement) at all,” administration lawyers told the high court.
The emergency appeal to the state Supreme Court put the same justices who would benefit most from the proposed constitutional change in a hard spot.
If they weighed in to change the ballot question, the justices may have faced a backlash from voters.
So the justices themselves refused to directly order changes to the ballot question.
But they wouldn’t mind if somebody else made changes, they wrote in their opinion.
In denying the Senate GOP leadership’s request, the justices wrote last week, “such denial should not be construed as condoning or constraining any future legislative or executive action by the parties.”
Following the court’s non-decision, Senate Republicans quickly told the Associated Press that, “they had reached an agreement (with the Wolf Administration) that would reword the amendment and pull it from the April 26 election. Senate Republican lawyer Drew Compton said Wednesday work was underway to delay the vote and address related issues. … (It’s) possible the ballot measure could be pushed back until November under revised language.”
But if there was a deal between the Republicans and the Wolf Administration to change or delay the ballot question, it quickly fell apart.
Late last week the governor’s spokesman told a law journal that such change would require legislative action.
But that prospect itself raised constitutional questions, and served to show weaknesses in Pennsylvania’s referendum process.
Proposed constitutional amendments to the state constitution are governed by a single paragraph in the state constitution, Article XI, Section 1, which reads:
“Proposal of Amendments by the General Assembly and Their Adoption.
Amendments to this Constitution may be proposed in the Senate or House of Representatives; and if the same shall be agreed to by a majority of the members elected to each House, such proposed amendment or amendments shall be entered on their journals with the yeas and nays taken thereon, and the Secretary of the Commonwealth shall causes the same to be published three months before the next general election, in at least two newspapers in every county in which such newspapers shall be published; and if, in the General Assembly next afterwards chosen, such proposed amendment or amendments shall be agreed to by a majority of the members elected to each House, the Secretary of the Commonwealth shall cause the same again to be published in the manner aforesaid; and such proposed amendment or amendments shall be submitted to the qualified electors of the State in such manner, and at such time at least three months after being so agreed to by the two Houses, as the General Assembly shall prescribe; and, if such amendment or amendments shall be approved by a majority of those voting thereon, such amendment or amendments shall become a part of the Constitution; but no amendment or amendments shall be submitted oftener than once in five years. When two or more amendments shall be submitted they shall be voted upon separately.”
As much as the Senate GOP leadership would like to change the ballot question, the wording of the proposed judges’ retirement amendment had already been voted upon and approved by both legislative houses, over two legislative sessions.
To change the language now, by a strict reading of Article XI, would seem to require that both houses start from scratch and approve any new language not once, but twice, over two new legislative sessions. But the article also demands, “no amendment or amendments shall be submitted oftener than once in five years,” so it would also seem they’d have to wait five years.
So the GOP leadership was stuck. What’s interesting and telling is that Sens. Scarnati and Corman appeared unaware of any of this.
(Other problems with state constitution’s Article XI became evident. The article reads that “such proposed amendment or amendments shall be submitted to the qualified electors of the State … at least three months after being so agreed to by the two Houses.” The earliest a proposed referendum question can be added to the ballot is three months after its second approval vote by the legislature; but, in theory, a potentially unpopular measure like this could have been held back from the voters in perpetuity, so long as it had not been advertised, as there is no time limit specified.)
The upshot of all this was that, throughout the week, no one at the capitol seemed to know whether this important if questionable proposed change to the constitution would actually make it on to the ballot in April.
I spent two days calling around to various state and legislative offices trying to find out what was going on with the proposed constitutional change. You would have thought we were talking about a lunch menu or a laundry list, and not a constitutional amendment.
This ballot mess was Pennsylvania government at its worst.
If state officials were confused, where would that leave state voters? I wondered.
Alex Young, an aide to Rep. Kate Harper, the sponsor of the amendment, told me, “I’ve been hearing rumblings so I’m not sure what’s happening. As I understand it, it’s going to be on the ballot. My understanding is that if they change the wording it can’t be on the ballot in April.”
This confusion was finally cleared up by a spokesperson for Secretary of the Commonwealth Pedro A. Cortés, who is responsible for election ballots.
“The question will be on the April 26 primary ballot,” says Kaitlin Murphy, a spokesperson for the secretary of state. “The language will not be changed. The Pennsylvania Supreme Court denied any relief in the litigation. So, that question, and the certification will remain the ballot. The question will appear on the ballot as it was originally drafted by the secretary and approved by the attorney general.”
So Ballot Question No. 1 will read:
“Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges and justices of the peace (known as magisterial district judges) be retired on the last day of the calendar year in which they attain the age of 75 years, 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?”
The requirement that judges retire at age 70 was considered an important reform of Pennsylvania 1968 constitutional convention.
At the 1968 constitutional convention, delegate and former governor Bill Scranton called the changes to the judiciary, including mandatory retirement of judges at age 70, “revolutionary,” “a new modern era for our judicial system,” and among the most progressive in the nation.
The current push to change the mandatory retirement age of judges to 75 began with an unsuccessful 2012 federal lawsuit filed by six state judges.
In their failed federal lawsuit, the Pennsylvania judges went so far as to argue that they are entitled by “the inherent rights of mankind” to stay on as long as they desire, or until they can no longer drag themselves across the floor to the bench, whichever comes first.
Now it looks like voters will decide on April 26.
