Voters may cast a ballot on Marsy’s Law, but a count will have to wait, Pa. Supremes rule

Pennsylvania voters can cast their ballots Tuesday — but when it comes to one controversial ballot measure, the state won’t be a-counting.

On Monday evening, the state Supreme Court upheld an injunction to halt the certification of Marsy’s Law, an amendment to add victims’ rights — already protected by law — to the state constitution.

The question will still be on the ballot, and voters will still weigh in with a “yes” or “no” if the amendment should be adopted.

But the votes cannot be certified by the state, and the amendment cannot be enacted, until the conclusion of a court challenge brought by a state resident and the League of Women Voters. The Pennsylvania chapter of the American Civil Liberties Union is litigating the claim, which argues that the amendment itself is being unconstitutionally implemented.

Breaking: Pa. Supreme Court upholds Commonwealth Court injunction delaying vote count in #MarsysLaw ballot question on Tuesday. #PaPolitics pic.twitter.com/w95w0501s5

— Pennsylvania Capital-Star (@PennCapitalStar) November 4, 2019

“Neither this Order, nor the Order of the Commonwealth Court, deprives any voter of the right to cast a ballot on the proposed ‘Victim’s Rights’ amendment,” the Supreme Court’s order said.

The decision was 4-3. Justices David Wecht, Christine Donohue, Max Baer, and Debra Todd ruled to uphold the lower court.

Counties will keep unofficial track of the votes for or against the amendment, which can be found on all 67 counties’ websites. But the Pennsylvania Department of State will not tabulate results from local election boards, nor have an official statewide total.

In a dissent, Chief Justice Thomas Saylor said that the injunction “has significant potential to foster uncertainty amongst the electorate, and therefore, to impact upon the election’s outcome.”

He was joined by Justices Sallie Mundy and Kevin Dougherty.

Of note, for the few @SupremeCtofPA existing nerds: decision does not break down along traditional lines. Justice Baer, who seems to be the most frequent idiosyncratic vote among D nominees, voted with majority; Justice Dougherty, who's often more progressive, dissented w/2 Rs.

— Adam Bonin (@adambonin) November 4, 2019

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 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.

In a statement, Jennifer Riley, the state director for Marsy’s Law in Pennsylvania, called the injunction””unprecedented and extreme,” and expressed disappointment in the Supreme Court’s decision.

“The Commonwealth Court’s injunction will harm past, present and future crime victims who will be denied constitutional rights until the votes are certified,” Riley said.

She added that she still believed in the legal argument for the law, adding: “It is now more important than ever that Pennsylvanians get to the polls and vote for Marsy’s Law.”

The ACLU argued that the amendment, as written, impacts multiple other individual rights protected by the state constitution, such as a right to a speedy trial.

As such, it is unconstitutional to present the changes as one single proposal. The ACLU sought an injunction to allow the challenge to go forward.

In her Oct. 30 ruling, Commonwealth Court Judge Ellen Ceisler agreed with the ACLU. She found that Marsy’s Law would have “immediate” and “irreparable” harm to Pennsylvania’s criminal justice system, and should not take effect until appellate courts weigh in on its constitutionality.

The ruling marks one of the first major roadblocks for the amendment, which sailed near unanimously through the Pennsylvania General Assembly in two straight sessions. The victim’s rights proposal also had the backing of Gov. Tom Wolf and Attorney General Josh Shapiro, both Democrats.

In a statement, ACLU-PA executive director Reggie Shuford called the ruling “a win for voters in Pennsylvania.”

“The General Assembly gave voters an overwhelming ballot question and forced them to vote up or down on the entire package,” Shuford said. “There may be provisions of Marsy’s Law that a voter likes and provisions they don’t like, but they have no opportunity to vote individually on each piece. The legislature forced them into an unfair, take-it-or-leave-it choice.”

Shuford added that the official tally has only been postponed, not fully blocked, and that voters should still vote “no.”

The challenge to Marsy’s Law will now make its way through the justice system, potentially all the way to the state Supreme Court again, for a full argument. If the challenge succeeds, then Tuesday’s vote will not matter.

If the challenge fails, then the state will certify Tuesday’s results. If the amendment passes, it will become law.

So far, 12 states approved Marsy’s Law, according to Ballotpedia. It was subsequently struck down by state judges in two of those states — including in Montana via a similar argument brought against the Pennsylvania proposal.

The ballot initiative, backed by millions of dollars from tech billionaire Henry Nicholas, has passed in ever state it has been offered in —usually getting over 60 percent of the vote.

For more context on Marsy’s Law, click here.

Your guide to Pennsylvania’s Nov. 5 general election