Will Marsy’s Law votes count? State judge to rule soon on November crime victims amendment

A Commonwealth Court judge expects to decide this week whether or not to allow Pennsylvania’s top election official to count votes on Marsy’s Law, a proposed constitutional amendment that grants new legal rights to crime victims. 

Judge Ellen Ceisler heard arguments for and against the ballot measure at a three-hour hearing Wednesday in the Pennsylvania Judicial Center, where attorneys who brought the case asked her to prevent the amendment from taking effect if it wins among voters in the Nov. 5 general election.

Lawyers seeking the injunction said that county election officials should still collect votes on the amendment, since ballots for the Nov. 5 election have already been printed. But they want to prevent Secretary of State Kathy Boockvar from immediately certifying the results, giving the plaintiffs more time to challenge the amendment’s constitutionality in state courts. 

“If we win, the votes will not count,” said Steven Bizar, a Philadelphia attorney representing the plaintiffs. “If we lose, they will.”

Bizar and an attorney from the American Civil Liberties Union of Pennsylvania filed the challenge in early October on behalf of the League of Women Voters and Philadelphia voter Lorraine Haw. 

It came just three weeks before voters head to the polls to decide whether or not to adopt Marsy’s Law, which would inscribe Pennsylvania’s crime victim bill of rights into the Constitution. 

The amendment would give victims a legal avenue to seek recourse if they think their rights have been violated. It has been approved twice by the General Assembly. 

On Wednesday, Bizar argued that even though Marsy’s Law only alters one section of the Constitution, it affects rights enumerated in other sections, namely a defendant’s right to a speedy trial. 

Bizar said that renders the amendment unconstitutional. He cited the precedent of a legal case from the 1990s, which found that amendments had to refer to a single subject. 

The plaintiffs brought as a witness Ronald Greenblatt, a criminal defense attorney from Philadelphia, who testified that the amendment could slow down criminal proceedings, since it would grant victims the right to deny certain requests for information from defendants. 

Slower court proceedings could encourage more people to take plea bargains, even if they are not guilty of the charges, Greenblatt said. 

“This cannot stand in a system that values the presumption of innocence,” Greenblatt said. “Innocent people will be convicted.”

A spokeswoman for the Marsy’s Law campaign dismissed those arguments after the hearing, saying that the problems Greenblatt described have not emerged in any of the 10 other states that have amended Marsy’s Law into their constitutions. 

One of those states, South Dakota, tweaked its amendment after victim service agencies found themselves overburdened by their new constitutional requirements. 

Jennifer Storm, Pennsylvania’s official victim advocate, also reiterated her support for the ballot measure Wednesday, saying “I wouldn’t support [Marsy’s Law] if I believed it infringed on the rights of the accused.”

Attorneys representing the Pennsylvania Department of State said 22,000 voters have already cast absentee ballots on Marsy’s Law, and argued that the plaintiffs’ last-minute challenge would disenfranchise those voters and others who turn out at the polls in November.

“To say this is an eleventh hour challenge is generous,” said Nicole Boland, the counsel from the Office of Attorney General representing the Department of State. “We’re past midnight at this point.”

Ceisler said she hopes to issue a judgement on the injunction in the coming days, with a more detailed legal opinion to follow next week.