A photo of Marsy Nicholas, the namesake for victim rights legislation that has passed in several states, sits against a chair during a 2013 rally in Santa Ana, Calif. (Bret Hartman/AP Images for Marsy'sLawForAll.org)
Pennsylvania voters gave Marsy’s Law an overwhelming victory in the 2019 general election.
With more than 70% of precincts reporting results by 11:30 p.m. Tuesday, the proposed victims’ rights amendment to the state constitution was easily passing with more than 73% of the vote.
But the victory for Marsy’s Law may be temporary.
On Monday, the Pennsylvania Supreme Court upheld a preliminary injunction blocking state elections officials from tabulating or certifying the vote on the amendment. The lawsuit filed by the American Civil Liberties Union argues, among other things, that Marsy’s Law is too broad to pass as a single constitutional amendment.
Resolving the legal challenge could take more than a year.
Though it is barred from finalizing the results, the Department of State posted unofficial returns on its website. Absentee and provisional ballots are still being tallied, but Tuesday night’s result was enough for backers of Marsy’s Law to declare victory.
“This has been a landslide,” said Jennifer Riley, who directs Pennsylvania’s chapter of the advocacy group Marsy’s Law for All. “We ask the court to follow the voters’ voices here, to mirror what the voters of Pennsylvania want.”
After the ACLU’s lawsuit was first filed last month, Riley and other Marsy’s Law supporters — including the officials at the Department of State and the state Attorney General — raised concerns that the last-minute injunction would confuse voters.
Riley said while any confusion ultimately didn’t seem to affect the outcome of the vote, she heard anecdotal reports from polling places that some voters had left the Marsy’s Law slot on their ballots blank, under the mistaken belief that the votes wouldn’t be counted at all.
At one midtown Harrisburg polling place Tuesday afternoon, Seung Chon, who had just cast his ballot, said he has been making a concerted effort to stay up to date on how the Marsy’s Law vote would work.
“It definitely felt a little confusing,” he said. “Someone [on the news] said it was like the eleventh-hour switcheroo, and it kind of felt that way. I don’t think it was actually well-reported or well-documented early on.”
Chon said he believes it was hard for voters to grasp the amendment’s full implications.
“The law itself seemed really good for victims…but then I went and researched some ACLU stuff and realized that the defendant, a lot of things could be biased against them,” he said. “I was pretty torn about what to do.”
Steven Bizar, an attorney working with the ACLU and other groups to challenge Marsy’s Law, said he doesn’t believe the legislature vetted it closely enough, despite the fact that the House and Senate passed the amendment in consecutive sessions.
“Politically, everyone wants to get behind victims’ rights because there’s no downside to a politician for doing that,” he said.
Marsy’s Law received near-unanimous support from state lawmakers and other elected officials, like Attorney General Josh Shapiro, throughout its approval process.
“I read that as politicians being politicians, just like I read the attorney general as being an aspiring governor,” Bizar said. “That’s what ‘A-G’ stands for, in my view.”
In their lawsuit, Bizar and other attorneys working for and with the ACLU said Marsy’s Law is too broad to be passed as a single amendment since — by their assessment — it affects many different parts of the constitution. Pennsylvania’s constitution says if the legislature wants to submit two or more amendments, those changes “shall be voted upon separately” in the subsequent referendum.
They also argued the ballot language for Marsy’s Law ballots and the descriptive summary in the state voter guide didn’t accurately express what the amendment does.
Commonwealth Court Judge Ellen Ceisler agreed with Bizar and the other attorneys on both those counts.
In the order granting a preliminary injunction and keeping Marsy’s Law from taking effect, she wrote that the ACLU’s case appears strong enough to prevail in further litigation, and said Marsy’s Law could “immediately and irreparably” damage the rights of people accused of crimes.
In a split decision, the state Supreme Court upheld her order.
The case now heads back to Commonwealth Court. Bizar said he expects the state will submit an answer to the petition the ACLU and fellow plaintiffs filed in October to kick off the case. Then, he said, he expects arguments to move forward “fairly quickly” between attorneys for both sides on the merits of the case.
After the Commonwealth Court rules, the losing side is expected to appeal the case to the state Supreme Court.
“I feel really good about our case on the substance,” he said. “I think this amendment is absolutely a violation of Article XI, Section 1 of the constitution.”
A spokesperson for the attorney general did not comment on the office’s expectations for the case going forward.
Riley, of Marsy’s Law for All, said she’s just as optimistic the law will be upheld by the courts.
“We were disappointed in the Supreme Court’s decision [to allow the injunction to continue]” she said. But “we still believe that Marsy’s Law is 100 percent constitutional and we’ll be able to prove that in a court of law.”
Riley said Marsy’s Law backers converged in Philadelphia on election night for a celebration of victims’ rights becoming, at the very least, “part of the conversation” in Pennsylvania.