Lawyers challenging a ballot question about enshrining victims' rights in the Pennsylvania Constitution asked a judge Wednesday to stop the votes from being counted while their lawsuit proceeds, while the state argued an injunction would confuse voters and could affect the result.
Commonwealth Court Judge Ellen Ceisler said after the hearing that she plans to issue an order in the next couple days regarding the Nov. 5 voting on the Marsy's Law ballot question. An opinion that outlines her reasoning will follow in about a week, she said.
The proposed amendment endorses a list of rights for victims, including the right to be notified about, attend and weigh in during plea hearings, sentencings and parole proceedings.
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The lawsuit brought by the state League of Women Voters and four voters claims the amendment alters multiple provisions of the state constitution, so the changes should be voted on separately, and that the amendment would do immediate harm to the rights of criminal defendants.
The victims' rights amendment is part of a national Marsy's Law campaign, named for a 1983 murder victim in California. It has encountered practical and legal problems in some other states, including Kentucky, where the Supreme Court in June voided its Marsy's Law constitutional amendment after it had passed.
The hearing focused on the plaintiffs' request for a preliminary injunction that would keep elections officials from tabulating and certifying the vote for the time being. Lawyers urged Ceisler to "freeze the status quo" to prevent the changes from being immediately enacted, even if a majority approves.
The attorney general's office said thousands of absentee, military and overseas voters have already cast ballots and that a preliminary injunction would confuse voters and could affect the results. The office is representing the defendant, acting Secretary of State Kathy Boockvar, who is the state's chief elections official.
"Over 22,000 people have already voted with absolutely no notice that their votes could be called into question," Deputy Attorney General Nichole Boland told Ceisler. She said "people headed to polls will be confused about whether or not their votes will count."
She said there was precedent for "bulk amendments" being passed in the late 1960s, ahead of the state's constitutional convention, and that the current amendment's roughly 500 words all involve one topic.
"In this case, every single part relates to the same purpose — it's advancing victims' rights," Boland said.
If the referendum passes, it would go into effect immediately, although the two sides debated whether a provision in the ballot question regarding further action by the General Assembly will delay it taking practical effect.
The only witness at the hearing was Ronald Greenblatt, a criminal defense lawyer who said the amendment would give victims the right to refuse discovery requests by the accused. That would make it harder for defense lawyers to get information they need to immediately start investigating social media posts, email records and text messages, Greenblatt said.
Some of those records are only available for a short time, he said.
"If you don't get that right away, you've lost it," Greenblatt said.