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Posted by on Sep 2, 2016 in Civil, Constitutional Provisions, Elections | 0 comments

Cortes v. Sprague: Ambiguous Ballot Question Splits the Court

Pennsylvania’s courts have been the site of an unusual amount of unfolding drama this year, from the sordid tale of Bill Cosby’s fall from grace to the strange fight over taped depositions that turned into a question of SCOPA quorums in Dougherty v. Heller. But Friday’s ruling that an ambiguous ballot question does not violate the Pennsylvania Constitution has been one of the most bitterly lamented of the year.

For the past two years, the General Assembly has been moving through the slow and methodical process of voting and re-voting for a Constitutional amendment to raise the mandatory retirement age of judges from 70 to 75. The question finally qualified to go to the voters of the Commonwealth. But the timing could not be much worse. The vote will come against a partisan backdrop in which Democrats have been winning big in judicial elections of late, and Chief Justice Saylor, the second to last Republican on the Court, turns 70 in December, and will be forced to retire if the amendment is not passed.

On the final leg of Pennsylvania’s hardest-in-the-nation Constitutional amendment process, General Assembly Republicans directed Secretary of State Pedro A. Cortes to word the question more simply, resulting in the following question:

Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges, and magisterial district judges be retired on the last day of the calendar year in which they attain the age of 75?

Enter Richard Sprague, and Justice “So what if I sent him to death row, I’m not recusing myself from his appeal” Castille, who filed in the Commonwealth Court for declaratory and injunctive relief, and immediately asked SCOPA to invoke its power under 42 Pa.C.S.A. § 726 to assume plenary jurisdiction in the case. Sprague and company contend that there is a state constitutional right to vote on a constitutional amendment, and that the question’s ambiguity violates due processs.

Chief Justice Saylor, recognizing that he was the unspoken subject of this lawsuit, recused himself from the case, realizing what one of our famous Plaintiffs previously failed to. The question of whether to step in and issue summary relief split the court, with two plurality opinions issuing on either side, and Justice Wecht filing a concurrence to Justice Todd’s opinion in favor of the Plaintiffs.

Takeaways here are slim, as the case’s outcome is to remand, without a binding opinion, to the Commonwealth Court for further proceedings. Justice Baer wrote a typically textualist opinion noting that the Plaintiffs’ concerns are based on what they “speculate that voters will be more likely” to think, and questioning whether there is any clear state constitutional right of a voter to have a clear statement of the question presented. “Plaintiffs cite no Pennsylvania constitutional or statutory provision, nor any on-point Pennsylvania precedent, to support their request for this new ballot question requirement; rather, they cite an Idaho Supreme Court decision from 1929, and two decisions of the Florida Supreme Court, none of which carry any precedential value in this Commonwealth.” (citations omitted).

Baer ultimately rested his opinion on the fact that the Constitution is silent on ballot question wording, that there are many ways to word a question, and that the judicial branch is not well equipped to wade into the fray. Oddly, however, he cites Stander v. Kelley, 250 A.2d 474, 480 (Pa. 1969), which requires ballot questions to “fairly, accurately, and clearly apprise the voter of the question or issue on which the electorate must vote.” But acknowledging that there are “cogent policy reasons” for intervening in ballot question wording disputes, he would “find nothing in this [question] to be unfair or misleading,” and furthermore, believes that the Court is “shackled by the constitutional restraints on our judicial branch of government.” In footnote 9, Baer also points out that there has historically been a presumption that voters are informed–the accuracy of which presumption we won’t bother discussing here.

Justice Todd fires away out of the gate, calling the Pennsylvania Constitution “the fundamental law of our Commonwealth,” and arguing that the courts must ensure a clear presentation of the effects of a proposed amendment to voters.  Citing to Stander, she would find the question insufficiently apprises voters of the situation by “omitting any indication that there is a current mandatory retirement age in the Constitution.”

Perhaps the most sad character in this conflict is poor Secretary Cortes, who has been drug before the Court twice on this question, and been forced, by virtue of his office, to take opposing and contradictory views on the matter in defending the ballot question each time. Justice Todd points this out, and notes that the Secretary’s previous brief in support of the previous wording fought for more information for the voter, while he now takes the position (again, as required by the nature of his office) that less information is fine. Todd ends with arguing that “this Court’s ultimate focus is on safguarding the rights of the people,” and that this duty is never more clearly implicated than in protecting citizens when they are “contemplat[ing] amending the document that establishes the fundamental relationship between the citizen and his or her government.”

But it’s Justice Wecht who seems to take the most interesting tack on the case.  Agreeing with Todd’s outcome, he nonetheless argues that all five of the other participating justices have missed the boat by focusing on Stander, which he argues cannot control, as it dealt with whether the current constitution was validly accepted under the previous constitution, and thus, is no longer a valid case, as it interpreted a previous constitution’s provisions.  He argues for a plain-text examination of the current constitution’s provisions, wherein he would find an underlying policy of fully informing the citizens of the effects of a proposed amendment.

Sprague v. Cortes lined up some of the most notable names in Pennsylvania law against the Secretary of State over a question fundamental to the current and future composition of our judiciary, and SCOPA’s split ensures that this battle will now fall at the feet of the Commonwealth Court.

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