Judge upholds removal of constitutional question on April 26 ballot

Judge upholds removal of constitutional question on April 26 ballot

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Pennsylvania voters cast their vote on a constitutional amendment question on April 26– but their vote doesn’t officially count.

Commonwealth Court Judge Kevin Brobson rejected an injunction request seeking to stop House Resolution 783, which implements a last-minute election ballot change to remove from the April 26 ballot a constitutional amendment question on mandatory judicial retirement. The question will be placed on the Nov. 8 general election ballot.

The resolution was upheld but, given the close proximity to the April 26 primary election, state and county election officials weren’t able to physically remove the question from the ballot. Because the resolution stands, Brobson said, Secretary of the Commonwealth Pedro Cortes has no authority to “canvass and compute” votes cast on a question that is not before the electorate.

“In light of H.R. 783, Proposed Constitutional Amendment 1 was, but is no longer, a question before the electorate, regardless of its presence on a ballot,” Brobson wrote. “Thus, the Secretary is under no legal obligation to ‘canvass and compute’ votes cast on Proposed Constitutional Amendment 1 during the April 2016 Primary Election.”

The traditional posting of election night results on the Department of State’s website is done as a public service. The official “canvassing, computing and tabulating return” does not occur until days after the election.

However, due to the complexity of testing and coding the election night returns system, the results of votes cast regarding the ballot question could appear publicly on the department’s website. Any changes to publicly posting the election night results of the ballot question will be left up to the discretion of the secretary.

H.R. 783 moves the ballot question to the fall general election ballot and directs Cortes to re-word the question asking voters to approve or disapprove increasing the mandatory retirement age of judges to 75. Judges currently must retire at the end of the year in which they turn 70 years old.

Three Democrats who filed the preliminary injunction request argued H.R. 783 disenfranchises voters, particularly absentee voters who have already cast ballots on the question, or others who intended to vote on the question on primary election day.

Brobson rejected that argument. He also rejected limitations the Democrats sought on the General Assembly’s exclusive authority under the Pennsylvania Constitution to dictate the “time” and “manner” in which a question will appear on the ballot.

The judge said the close proximity of the resolution’s passage to the primary election might place hardships on state and county election officials, but those do not reach the level of “harms” that could be remedied by the court.

“Even if the Court were to consider them harms for purpose of preliminary injunctive relief, greater harm of a constitutional dimension would result if this Court were to enjoin enforcement of the otherwise lawful action of a coordinate branch of government,” Brobson wrote.