Pennsylvania Secretary of the Commonwealth Kathy Boockvar (D) is expected to resign on February 5, 2021, after her office failed to advertise a constitutional amendment as the state constitution requires. Voters could have decided the constitutional amendment at the election on May 18, 2021, but the two-session process will need to restart. The earliest the amendment could be referred to the ballot is now May 16, 2023.
The constitutional amendment would have created a two-year period in which persons can file civil suits arising from childhood sexual abuse that would otherwise be considered outside the statute of limitations. A 2018 grand jury report that investigated child sexual abuse in the Roman Catholic Church recommended the two-year litigation window.
A constitutional amendment must be approved at two successive sessions of the Pennsylvania Legislature. During the 2019-2020 legislative session, both legislative chambers approved the amendment. It was reintroduced during the 2021-2022 session, and the state House re-approved it on January 27.
The Pennsylvania Constitution (Section 1 of Article XI) required Secretary of the Commonwealth Kathy Boockvar (D) to publish the constitutional amendment in at least two newspapers in each of the state’s 67 counties during each of the three months before the general election following approval in the first legislative session (November 3, 2020). On February 1, 2021, the Pennsylvania Department of State announced that officials did not advertise the constitutional amendment as required. The department’s press released said, “While the department will take every step possible to expedite efforts to move this initiative forward, the failure to advertise the proposed constitutional amendment means the process to amend the constitution must now start from the beginning.”
Gov. Tom Wolf (D), in announcing Boockvar’s resignation, said, “The delay caused by this human error will be heartbreaking for thousands of survivors of childhood sexual assault, advocates, and legislators, and I join the Department of State in apologizing to you. I share your anger and frustration that this happened, and I stand with you in your fight for justice.” State Rep. Jim Gregory (R-80), one of the amendment’s legislative cosponsors in 2019, responded, “The gravity of this ‘error’ is of the magnitude that the secretary’s resignation will not be enough for the victims. I do not want to believe that this is willful misconduct on the part of someone, but I will need to be shown that is not the case.”
Pennsylvania is not the only state to miss a constitutionally required advertisement period for a constitutional amendment in recent years. In 2019, Iowa Secretary of State Paul Pate (R) said that his office failed to report two constitutional amendments that the 86th Iowa General Assembly (2017-2018) approved in 2018. This meant those amendments couldn’t go on the 2020 ballot and the process had to start over. One of those amendments, a measure to add a right to firearms to the state constitution, was certified for the 2022 ballot on January 28.
Like the Pennsylvania Constitution, the Iowa Constitution required notifications of the constitutional amendments to be published at least three months before the general election following approval in the first legislative session. Unlike Pennsylvania, the Iowa Constitution doesn’t specify who needs to publish the amendment. Rather, it is set in statute. In response to the error, the Iowa Legislature passed a bill to make the state legislature, rather than the secretary of state, responsible for publishing proposed constitutional amendments passed in one legislative session.
Since the Pennsylvania Constitution specifically requires the secretary of the commonwealth to publish amendments, a constitutional amendment would be needed to pursue a similar policy change as Iowa.
Thirty-six state constitutions have a publication requirement for proposed constitutional amendments. Most require public notice prior to the election at which voters are to decide a constitutional amendment.
In six states (out of 13) with a two-session process for legislatively referred constitutional amendments, there are constitutionally mandated publication requirements in between approval in the first legislative session and the second legislative session. Those states are Iowa, Nevada, New York, Pennsylvania, Tennessee, and Wisconsin.