A Pennsylvania appeals court on Thursday invalidated more than 2 million votes cast on Marsy’s Law, a ballot measure that aimed to strengthen the rights of crime victims that overwhelmingly passed in 2019, claiming the measure was unconstitutionally presented to the state’s voters.
The ruling, agreed to by three judges of the state Commonwealth Court, found that the ballot question put before voters in Nov. 2019 violated the lawful state procedural for passing new amendments by making “sweeping and complex changes” to criminal procedure in a single vote. In doing so, the judges granted an argument made by the American Civil Liberties Union of Pennsylvania just days before that year’s general election.
Reggie Shuford, executive director of the ACLU-PA, called Marsy’s Law a “flawed policy” passed in a “flawed manner” to “score cheap political points.”
Marsy’s Law is part of a national advocacy movement backed by a billionaire tech executive. 74 percent of Pennsylvania voters approved it in the Nov. 2019 municipal election following an expensive advertising campaign.
Pending an appeal, the order means that all votes on the measure will now be tossed, and the Secretary of State Kathy Boockvar cannot certify the results. In a dissent, two Commonwealth Court judges argued that the ruling “deprives the people of [their] power,” and said they would have allowed the amendment to be certified.
In a statement, the campaign confirmed it was “prepared to continue advocating for victims and to bring an appeal to the Supreme Court to ensure that the votes of Pennsylvanians are counted and that the voices of the victims are protected.”
Jennifer Storm, the state victim advocate and a supporter of Marsy’s Law, said she was disappointed in the ruling in her own statement.
“The voices of victims are diminished far too often in the criminal justice and court systems,” Storm said. “Now is the time to create equality and balance within the very fabric that defines how justice is achieved.”
The amendment would give crime victims 15 constitutional rights in Pennsylvania, including the right to privacy, the right to be notified of any proceeding involving their offender, and the right to be heard in proceedings such as trials, bail hearings, sentencing, and pardon reviews.
Those rights are already enumerated in statute in the Pennsylvania’s Crime Victims Act, which the General Assembly adopted in 1998. But Marsy’s Law would let victims ask a judge to intervene on their behalf if they think their rights have been violated.
Passing constitutional amendments is an arduous process in Pennsylvania. The General Assembly must pass two identical bills, down to their punctuation, in two straight sessions. Voters must then ratify the measure in a referendum.
The General Assembly approved the proposed amendment in near-unanimous votes in 2018 and 2019.
The American Civil Liberties Union argued in 2019 that the ballot question put to voters contained too many constitutional changes, and that each one must be ratified individually. At the time, the Commonwealth Court agreed to let citizens vote on the measure, but that ruled that votes could not be officially tallied until the ACLU challenge was resolved.
The Pennsylvania ballot measure was part of a national effort, bankrolled by California billionaire Henry Nicholas, to amend state constitutions to enshrine rights for crime victims.
Supporters say Marsy’s Law protects people affected by crimes, but opponents say it would hinder criminal justice proceedings and jeopardize speedy justice for the accused.
When put to voters, the law has been broadly popular. But similar constitutional challenges have succeeded in other states.
In Montana, the state Supreme Court ruled in 2017 that the changes should have been voted on individually, not as a single omnibus vote.