File photo: People walk by the Pennsylvania Judicial Center Tuesday, Dec. 8, 2015, at the state Capitol in Harrisburg. (Matt Rourke/AP Photo)
The state Supreme Court on Monday upheld a lower court’s order barring Pennsylvania’s Department of State from certifying votes on a proposed victims’ rights amendment to the state constitution.
Voters can still cast ballots for and against Marsy’s Law on Tuesday. But the Department of State won’t officially tabulate and certify them until the legal challenge to the proposal is resolved.
The American Civil Liberties Union filed suit over Marsy’s Law last month, arguing it is too broad to be passed as one constitutional amendment, and saying it could compromise the rights of people accused of crimes.
Last week a Commonwealth Court judge agreed and issued the initial ruling, essentially freezing the amendment with a preliminary injunction.
Defending Marsy’s Law, state attorneys appealed to Pennsylvania’s Supreme Court in a last-ditch attempt to get the injunction overturned.
The high court’s order upholding the injunction was brief — noting only that voters can still cast ballots on the amendment, even if their votes won’t be counted right away.
It was a divided decision. Three judges, including Chief Justice Thomas Saylor, filed a dissenting opinion saying they’re concerned the injunction could confuse voters.
“Although I am certainly given pause by some of the substantive analysis contained in the Commonwealth Court’s opinion, from my point of view that court’s novel approach…has significant potential to foster uncertainty amongst the electorate, and therefore, to impact upon the election’s outcome,” Saylor wrote in his dissent.
Supporters of Marsy’s Law said they plan to continue defending the law’s constitutionality.
Jennifer Riley, who directs Pennsylvania’s chapter of the advocacy group Marsy’s Law for All, called the court rulings “unprecedented and extreme.”
“We remain confident that the Supreme Court will ultimately rule in favor of certifying the election results,” she said.
State Attorney General Josh Shapiro shared the sentiment, saying he “respectfully” disagrees with the ruling handed down on Monday.
The courts, he said, “had a very clear opportunity – let the votes be counted; let the voters’ voices be heard.”
ACLU attorney Mary Catherine Roper said the rulings do nothing to prevent votes from being cast and — if the law is found constitutional — counted.
“We’re just saying, don’t make an official count yet,” she said.
She said the court fight over the law’s constitutionality could take more than a year to resolve, as the speed of the litigation will likely slow as the parties begin debating the merits of Marsy’s Law.
She said she anticipates the appeals process probably won’t conclude until sometime in 2021.