$2.6 million was spent by the Wolf administration to advertise the ballot question, as it was previously written, in state newspapers, and voters were repeatedly told in the state’s advertisements to expect to vote on the issue in April
Serious questions were raised about whether the Wolf Administration might not be upholding its statutory requirements to fulfill the simplest and most basic obligation of any democracy: to count the votes
The tortured effort by Pennsylvania officials to change the state constitution to allow judges five more years on the bench, to retire at age 75, took another ridiculous turn last week at a hearing before a Commonwealth Court three-judge panel.
As readers know, a few weeks before April’s primary election, Republicans in the General Assembly passed a concurrent resolution, H.R. 783, which changed the wording of the ballot question so that voters would not know that judges must currently retire at 70.
The judges and their water carriers in the legislature also demanded the ballot question be removed from the primary ballot, and moved to the November general election, to further improve its poor chances for voter approval.
Problem was, $2.6 million had already been spent by the Wolf administration to advertise the ballot question, as it was previously written, in state newspapers, and voters were repeatedly told in the state’s advertisements to expect to vote on the issue in April.
So there’s an issue of deceptive advertising here — a truth in advertising scam perpetrated by the state courts and General Assembly, no less.
Less than two weeks before the primary election, Senate Democrats filed a lawsuit against their Republican counterparts in the Senate, and the administration of their own Democratic governor, Tom Wolf, to stop the proposed last-minute ballot changes.
Only days before the primary, Commonwealth Court Judge Kevin Brobson, a Republican, went along with the farce, and ordered the wording of the ballot question changed, and the question removed from the primary ballot.
At the time, Judge Brobson’s stated reasoning, or lack thereof, was that the state constitution allowed the legislature complete control over the amendment process, and so the legislature could do, he reasoned, whatever it pleased.
PA Secretary of State Pedro Cortés
But the administration of Gov. Tom Wolf, and his secretary of state, Pedro Cortés, told Judge Brobson in April that there wasn’t enough time, for technical reasons, to actually remove the question from the ballot.
Instead, the Wolf Administration proposed simply to not count the votes, and not to ratify the results of the ballot question.
This raised serious questions about whether the Wolf Administration might not be upholding its statutory requirements to fulfill the simplest and most basic obligation of any democracy: to count the votes.
In the resulting primary election, almost 2.4 million voters cast ballots on the retirement issue — and defeated the proposal by 47,594 votes.
But now the Republican-controlled legislature, the courts, and their strange bedfellows in the Wolf Administration, are all caught together in this election-rigging scheme.
Senate Democrats, led by Senators Jay Costa and Daylin Leach, continued their lawsuit to have H.R. 783 ruled unconstitutional, and to have the defeated retirement proposal thrown out by the courts, i.e., the judges who will be affected by the retirement vote.
Last week before a three-judge panel, on June 9, lawyers for the Democrat senators argued for summary relief against the Senate Republicans, and Gov. Wolf’s secretary of state.
The judges hearing this slapstick case included Brobson (who himself helped to create this mess with his ill-considered meddling in April), Judge Anne Covey, and Judge Dan Pellegrini.
As might be expected, the case is now so screwed up, and is so complicated, that the three judges had a hard time figuring out for themselves what legal issues were.
Also unclear and confusing is the role of the Wolf administration in all this.
Are Wolf’s people playing some sort of smart game? Or are they acting incompetently, and out-of-sync with their own party members in the Senate? It’s not clear.
On the face of it, the lawyers and the judges generally agreed, were issues involving Article XI of the state constitution, which enables constitutional amendments, and the state Election Code, which delegates Article XI’s legislative authority to the executive branch for the purpose of conducting elections.
Judge Brobson, in his ruling in April, and now the other two new judges this week, seemed to hold with the Republicans in the Senate that the constitution vests sole and “plenary” power to the legislature to draft amendments and place them on the ballot.
This principle was upheld in case law going all the way back to a 1900 case titled Commonwealth v. Griest, Judge Pellegrini told the courtroom.
In theory, says Judge Pellegrini, according to Griest, the legislature has the sole authority to write ballot questions and place them before voters, and the governor doesn’t have the authority to sign off or get involved.
The legal problem, the judges also agreed, was that the legislature had delegated some of this authority by statute in the Election Code to the executive branch, the secretary of state, and the attorney general, to write and review the questions and place them on the ballot.
The Election Code, passed by the legislature and signed into law by the governor, stipulates that the secretary of state write all ballot questions, and then submit the questions to the attorney general for review and approval.
This procedure was upheld in a 1999 case called Bergdoll v. Kane, the judges said.
This statutory process, the judges opined, overrides the ability of the legislature to write the ballot language, as happened with the rewrite of the judges’ retirement amendment.
Not to worry, the Senate Republican lawyers repeatedly told the panel of judges.
The lawyers for the Senate Republicans told the judges that the Wolf administration in March had agreed to let the legislature write the new ballot question. So the legislature’s delegation of powers to the executive branch now wasn’t an issue, and was moot, the Republican lawyers averred.
With that, however, the lawyer Secretary of State Cortés got up and informed the judges that there was no such agreement with the Senate Republicans.
Secretary of State Cortés in late May in fact had sent the new, reworded question to the attorney general’s office for review, the lawyer said — as prescribed by the Election Code.
So while the Senate Republicans were relying on Article XI of the constitution to pull off this farce, the Wolf Administration continued to follow the different procedure outlined by the statute of the Election Code.
The Wolf administration seemed caught between a rock and an expensive granite pillar. On the one hand it left itself open to criticism that by not counting votes it was not enforcing the statutory Election Code; on the other hand, with the issue of whether to submit the wording of the ballot question to the attorney general, it was following the statute.
It became clear that the respondent parties weren’t even in agreement on the process — the constitution or the statute — they were following to write and place the ballot question for the same amendment.
If a Republican lawyer like Dick Thornburgh, or Tom Corbett, was in the governor’s chair, the governor’s office probably would have at least been able to construct a more seamless legal strategy with the Senate Republicans.
But the Wolf Administration either didn’t know what to do, or didn’t care to do it. Or perhaps the Wolf administration was secretly sabotaging the ballot effort. Take your guess.
At this point in the hearing everyone seemed to figuratively have the faces in their palms.
Judge Covey complained to the Senate Republicans, “You started with this whole process over here. You passed two bills. The House and the Senate. And now you’re saying we don’t have to follow that anymore. We’re just gonna title it whatever we want to title it, and we’re gonna pass it through, and we can change things as we please.”
“It goes to the regularity of the process,” Judge Pellegrini said. “Once the general assembly says by statute we’re going to do things in a certain way, and represents to the public they we’re going to do it a certain way, are they required to do it in a certain way, until they amend the statute? … That’s the problem that I’m having. The general assembly said we’re gonna do it in a certain way, and they passed laws that said they’d do it in a certain way, and (now) we’re gonna ignore (that process).”
What happens now if the attorney general wants to change the ballot question language? Judge Pellegrini posited.
The entire misguided and mangled process was now ripe and rife for a legal challenge, it seemed, no matter what happened, the judges fretted.
Making matters worse, the ballot question had already been advertised one way, and voted on by 2.4 million voters — and now the Senate Republicans proposed using a different process, with new language, for the same ballot question. It was remarkable.
But it was Judge Covey who seemed best to put her finger on the larger issue.
“Doesn’t there seem to be something blatantly wrong with the fact that you pass it through two sessions of the General Assembly, publicize it after each one for three months, and then all of a sudden you say, ‘You know what? We don’t like this question.’ And we spent all this money and told the voters this is what we’re gonna do, and this is the question — and you don’t even have enough time to pull it back. And then you rephrase the question, and you only advertise it once as opposed to twice. … Why didn’t you all do that to begin with?”
Judge Covey went on, “You’re saying the general assembly can basically, under this amendment, because it’s so broad, so wide open, it can just continue to change and move things around regarding a constitutional question — the timing of it, and the manner that it’s going to be approached?
“I mean, at some point doesn’t the general assembly have the responsibility that they’re serving the people of the commonwealth?” Covey asked. “The next time there’s another constitutional amendment is everyone going to know what the rules are? Instead of everybody being in court and spending the taxpayers’ money disputing what the procedure is?”
Serving the people of the commonwealth? Now there’s a concept.
But the public, as was plain in this hearing, is just a legal technicality with many of these officials.
The judges on our courts who are pushing this amendment to increase their retirement age by any means necessary, and our Republican legislative leaders, either don’t care or know much about serving the public. They instead have an entitlement mentality. They believe they can do whatever they want, in their own interest, public be damned.
“I warned all the parties that this question shouldn’t be placed on the ballot!” Judge Brobson choked at one point.
The real question is: Is the legislature ever done? Judge Pellegrini asked.
Yes, the lawyer for the Republicans said. “When it’s submitted to the electorate.”
But the question was submitted to the electorate, and voted down, on April 26!
“Certainty is something that we’re striving for,” the lawyer for Secretary of State Cortés told the court. “What I want to point out is the fact that the question has not been proposed to the electorate — as of yet. The question has yet to be put to the electorate to decide whether or not the amendment should go forth, and change the constitution. That’s important to note. It hasn’t happened yet. The secretary hasn’t certified the question. It hasn’t properly been voted on, it hasn’t been tabulated, it hasn’t been certified. So it hasn’t happened. — Legally.”
Aren’t lawyers wonderful? And here these 2.3 million voters probably thought they had actually gone into their voting booth and pulled the lever on this. What wild imaginations these voters have.
Here we have all three branches of government trying to monkey with the state constitution, and doing a muck of a job of it. A mess like this, it goes to show, takes teamwork.
The lawyer for the Senate Democrats told the judges the Republicans’ procedure was unconstitutional.
“If HR 783 is invalid, the vote’s already been taken. Two point three million Pennsylvanians have voted on it,” the judges were told.
“The vote doesn’t matter to me so much as how many Pennsylvanians didn’t vote on it,” Judge Brobson snapped back.
But as Judge Brobson should know, and as any pollster could tell him, those 2.3 million voters who cast ballots in April, and defeated this measure by 50,000 votes, constitute an extremely accurate polling sample of extremely likely voters.
There’s no way this amendment can pass — unless the courts, and the Republicans, can change the wording of the ballot question to mislead voters, and so change the outcome.
And so all this could end up becoming a classic study in the polling profession on how changing a question can change a poll outcome.
It was apparent, no matter the ruling of these three judges, this tangled mess of a case is heading for the state Supreme Court, where the high court justices will, it seems, get at least one last shot to try to monkey with their own retirement age.
One has to wonder: how can the public of Pennsylvania sleep while their constitution and institutions and votes are being debased, abused and looted like this?
