The most controversial part of the ballot in Pennsylvania this year has nothing to do with Hillary, Trump or the close Senate race between Pat Toomey and Katie McGinty. It has to do with a ballot question about the retirement age for judges and, more specifically, the wording of that question.
Voters are being asked whether they’d like to amend the state Constitution to require PA judges to retire when they turn 75. Seems innocuous, right? Get those geezers out of here!
But there’s a problem: The ballot question doesn’t mention the current retirement age, which is 70.
If you didn’t know Pennsylvania had mandatory retirement for judges, you’re likely not alone. And originally the ballot question contained information about the current retirement age, making it clear voters were being asked about an increase to the retirement age. The ballot you’ll see on Election Day — barring an unlikely court ruling — will contain the version with no mention of the current retirement age, bothering Democrats, former PA Supreme Court justices and many other observers of Pennsylvania politics.
“There’s no reason to change the perfectly clear wording,” said Bruce Ledewitz, a professor at Duquesne University School of Law, “except to try to fool people.”
The idea of raising the retirement age for judges to 75 has been kicked around since at least 2012, with the primary reasoning being that people are living longer, healthier lives and could reasonably serve for longer. Outside of a few opponents, most notably Philadelphia-based state Sen. Anthony Williams, Democrats and Republicans supported adding the question to the ballot, the Senate voting 37-13 in favor of it last November.
By March, the question had been advertised in statewide media twice at a cost of at least several hundred thousand dollars. It was worded like this:
Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges and justices of the peace (known as magisterial district judges) be retired on the last day of the calendar year in which they attain the age of 75 years, instead of the current requirement that they be retired on the last day of the calendar year in which they attain the age of 70?
Everything appeared set. But then Republicans in the state House and Senate protested the question’s wording. They argued the language made it appear the question would also affect the United States Supreme Court and that it wasn’t consistent with past referendums. In April, after absentee voting had begun and the question was already printed on many ballots, the legislature passed a resolution delaying the question and changing the wording to the current version. Most Republicans and some Democrats favored the change. Gov. Tom Wolf appointee Pedro Cortés, the Secretary of the Commonwealth, signed off on the new wording. It looks like this:
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 years?
A spokesperson for Cortés declined to comment, citing ongoing litigation. Republican Jake Corman, Senate Majority Leader, didn’t respond to an interview request.
Some two million people cast votes on the original wording of the question in April. Had their votes counted, the measure would not have passed and the retirement age would not have been extended to 75. Critics suggest Republicans wanted the wording changed so it would have a better opportunity of passing. They won’t necessarily benefit more from an extension of the age limits, but they will benefit first.
Nineteen judges in Pennsylvania turn 70 this year and are headed for mandatory retirement, including Tom Saylor, the Republican Chief Justice on Pennsylvania’s Supreme Court. The composition of the Supreme Court dramatically changed after last November’s election, flipping from 3-2 Republicans to 5-2 Democrats. Losing Saylor at the end of this year would be a major hit for the Republicans.
“They wanted Chief Justice Saylor [to stay],” said state Sen. Daylin Leach, “who would otherwise retire.”
Leach has no problem with extending mandatory retirement to 75. He supports having no age limit for the Pennsylvania judges. But he’s against the wording of the ballot question and the way it was taken off the primary ballot after some people had already started voting. He compared it to lifting a measure at noon on Election Day if it became clear voters weren’t responding the way the majority of leaders preferred.
“That looks like something out of North Korea,” he said.
Leach and two other Democratic lawmakers sued to overturn the resolution that changed the wording and moved the ballot question to November, but they were unsuccessful. Another lawsuit came from two former Supreme Court Justices, Democrat Stephen Zappala Sr. and Republican Ronald Castille; and attorney Dick Sprague (Sprague has sued the Inquirer many times and infamously showed up with Kathleen Kane for what was meant to be an interview at the newspaper’s offices in 2014). They petitioned to have their lawsuit go straight to the Supreme Court. Saylor recused himself from the case, and the remaining six members were split 3-3, meaning the new wording of the question would be on the November ballot. Democrat Justice Max Baer wrote the opinion for keeping the current wording of the question intact. He’ll be forced to retire at the end of 2017 if the measure doesn’t pass.
Castille, Zappala and Sprague opted to challenge the Supreme Court’s ruling by taking their lawsuit to Commonwealth Court. The Commonwealth Court dismissed it.
Maida Milone, executive director of Pennsylvanians for Modern Courts, said the language “could be placed in a clearer context” but is neutral on the issue of the question. On Election Day in Philadelphia, the group plans to have volunteers passing out information at voting stations describing the question in greater depth and the pros and cons of extending the retirement age.
Regardless of the true intention for changing the question’s wording, it does appear more likely the measure will pass with the new language. A Franklin & Marshall poll conducted in late September and early October asked respondents three different versions of the ballot question. The current wording of the question led to 64 percent of respondents voting yes to change the retirement age to 75 and 28 percent voting no. The original wording led to 45 percent saying yes and 47 percent saying no. A third sample wording not proposed by lawmakers that also specified the retirement age was going to be increased from 70 to 75 led to 37 percent saying yes and 61 percent saying no.
In a recent editorial on Philly.com, Corman, the Senate Majority Leader, voiced his support for the wording he and Republican legislators pushed for. He hailed the ballot question as clear and concise, and noted Democrats and Republicans had collaborated on the language.
But he left something out. Just like the question that’s going to appear on your ballot next month, Corman’s editorial didn’t include the detail that the current retirement age is 70.