Pa. Supreme Court asked to weigh in on last-minute challenge to Marsy’s Law

Jennifer Riley, director of the Marsy's Law for Pennsylvania campaign, speaks with members of the media in the state Capitol on Friday. Capital-Star photo by Elizabeth Hardison.

It’ll soon be up to Pennsylvania’s Supreme Court to decide whether the state’s top elections official can tally votes on Marsy’s Law, the proposed constitutional amendment creating new rights for crime victims that will go before voters on Election Day on Tuesday.

Acting Secretary of State Kathy Boockvar filed an appeal late Thursday night asking the state’s highest court to overturn an injunction, issued by a Commonwealth Court judge earlier this week, blocking an official vote count pending the outcome of a lawsuit challenging the proposed amendment’s constitutionality. 

Attorneys for the state branch of American Civil Liberties Union have until 4 p.m Friday to file a response. They brought their initial legal challenge on Oct. 10, on behalf of plaintiffs that include the League of Women Voters of Pennsylvania.

Boockvar argued in her appeal that the injunction granted by Commonwealth Court Judge Ellen Ceisler on Oct. 30 would suppress turnout and foment uncertainty among the public during next week’s general election, where Marsy’s Law will be on the ballot.

A spokeswoman from the Administrative Office of Pennsylvania Courts could not predict when the Supreme Court will issue its ruling on the case.

During a news conference Friday, supporters of the amendment called the ruling “a form of voter suppression” and urged voters to turn out to the polls on Election Day. 

State Victim Advocate, and Marsy’s Law supporter, Jennifer Storm said her office has been “inundated” by concerned crime victims who are uncertain what the injunction means for crime victim rights in Pennsylvania. She said she’s also heard from voters who don’t know whether or not their votes will matter on Tuesday. 

“We never want there to be concern among citizens before an election, Storm said. “We’re telling people to get out there and vote like their rights depend on it.”

Marsy’s Law would add 15 new rights for crime victims to the state Constitution, including the right to be notified of, and to be heard in, any legal proceeding involving the defendant in their case. 

These rights are already protected by state statute. Enshrining them in the constitution would grant crime victims the ability to assert their rights in court. 

ACLU attorneys filed the 11th-hour challenge to Marsy’s Law in mid-October, saying the amendment unlawfully combined multiple constitutional changes in a single ballot measure. 

They say the amendment would affect rights enumerated in other sections of the Constitution, including a defendant’s right to a fair and speedy trial. 

Ceisler recognized those arguments in the ruling she issued Wednesday, writing that Marsy’s Law would “immediately, profoundly, and irreparably impact individuals who are accused of crimes, the criminal justice system as a whole, and most likely victims as well.

The injunction she granted will prevent the law from taking effect while the challenge works its way through Pennsylvania’s appellate courts — a process that could take years. 

What lies ahead

No matter what the Supreme Court decides, supporters of the amendment are confident they’ll win at the ballot box on Tuesday. 

Pennsylvania’s General Assembly passed the amendment twice in near-unanimous votes. It also had the backing of Gov. Tom Wolf and Pennsylvania Attorney General Josh Shapiro.

Even if the Supreme Court upholds the Commonwealth Court injunction, county election officials can still publicize unofficial vote counts after polls close on Tuesday. 

Ceisler’s ruling, which prevents Boockvar from counting and certifying votes on the Marsy’s Law ballot measure, “does not prohibit counties from following any of their normal election procedures,” Boockvar’s press secretary, Wanda Murren, told the Capital-Star Thursday. 

Those procedures include posting unofficial vote tallies to county election websites, which nearly all of Pennsylvania’s 67 counties update in real time on election night, according to Doug Hill, executive director of the County Commissioners Association of Pennsylvania. 

The returns reflect all the votes that were cast at polling places on Election Day, and may include results from absentee ballots, Hill said. 

The ballot measure in Pennsylvania is part of a nationwide movement to bolster rights for crime victims. It’s passed by wide margins among voters in other states, including South Dakota and Kentucky, where it was later overturned by the Kentucky Supreme Court.