A Pennsylvania judge ruled Wednesday that primary election votes being cast on a constitutional amendment ballot question to extend the state's judicial retirement age won't count.
Commonwealth Court Judge Kevin Brobson's ruling effectively upholds a state resolution delaying the vote from next week until November. Three Democratic state senators had sought to have the resolution invalidated so any votes cast next week would matter.
Brobson said it was up to state and county elections officials to explain that the amendment isn't yet before voters, "regardless of what the actual ballot may say."
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"There are clearly burdens and consequences that result from the unfortunate timing of the General Assembly's action," Brobson wrote. "Such burdens and consequences that flow from the constitutional actions of any branch of government, however, are not 'harms' that can be considered, let alone abated, by enjoining the exercise of a constitutional prerogative."
The lawsuit named as defendants the two top-ranking Senate Republicans, Jake Corman and Joe Scarnati, as well as Secretary of State Pedro Cortes.
Senate Republican general counsel Drew Crompton said the decision upheld the Legislature's prime role in deciding how constitutional amendments get voted.
"I think the court decision clearly states that it's the court's opinion that setting elections and especially those associated with constitutional amendments is fully in the purview of the General Assembly," Crompton said.
The proposed amendment, which would let the state's roughly 1,000 justices, judges and district judges remain on the bench until age 75, compared to age 70 now, has passed both chambers of the Legislature in two consecutive sessions, leaving only voter approval still required for it to be adopted.
Lawmakers had put the question on the ballot for Tuesday's primary, and tens of thousands of people have already cast absentee ballots.
But earlier this month, both chambers approved a resolution to delay the vote until the Nov. 8 general election, to rewrite the wording so that it doesn't state the age is being extended five years and to direct Cortes to not tally primary votes on the question.
Senate Minority Leader Jay Costa of Allegheny County and Sen. Daylin Leach, D-Montgomery, and Sen. Christina Tartaglione, D-Philadelphia, sued to challenge the resolution, saying it would improperly ignore votes that already have been cast by military and overseas absentee voters, among other grounds.
But Brobson ruled against their request to block the resolution, saying "no elector has a right to vote on that question or a right to have their vote on that question count as part of the April general primary election. In the absence of a right to vote, there cannot be voter disenfranchisement."
Leach said the plaintiffs will not pursue an 11th-hour appeal before the state Supreme Court, although the underlying lawsuit will continue.
A Department of State spokeswoman had no comment late Wednesday about whether the public will be told how many votes are eventually cast in the primary for or against the amendment. Leach said all votes should be counted and reported.
Elections officials told Brobson it's very late in the process to get the question off all ballots in 67 counties, and said alternatives such as stickers to black out the question may not be practical.
Crompton said it was possible that some counties could find a way to block the question.
Most county elections offices are linked by computer to the Department of State, which publishes unofficial election night returns. Tinkering with and then testing the software takes time and creates a risk of election night glitches. Brobson said Cortes can determine if such changes should be made.