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Pennsylvania Commonwealth Court rules that 2019 Marsy’s Law ballot measure violated state constitution

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On January 7, 2021, the Pennsylvania Commonwealth Court ruled that a ballot measure for Marsy’s Law, a type of crime victims’ rights amendment, violated the Pennsylvania Constitution. Pennsylvanians voted 74% to 26% in favor of Marsy’s Law at the election on November 5, 2019. Results were never certified, however, according to a court order.

The 3-2 appellate court decision stated that the proposal violated the separate-vote requirement for constitutional amendments. According to the Pennsylvania Constitution, “When two or more amendments shall be submitted they shall be voted upon separately.” Judge Ellen Ceisler (D) wrote the majority’s opinion, which ruled that Marsy’s Law would impact separate rights and provisions of the state constitution.

Judge Patricia McCullough (R), who agreed with the majority’s decision but wrote a separate opinion, stated that the measure contained “laudable and salutary provisions” but “simply embraces too many disparate matters to effectively convey its import to voters within the 75 words mandated by statute.”

Judge Mary Hannah Leavitt (R) dissented, stating that Marsy’s Law created constitutional rights for crime victims without changing existing provisions of the state constitution. Judge Leavitt wrote, “The judgment the court enters today deprives the people of this power on the strength of no more than speculation.”

Jennifer Riley, director of the organization Marsy’s Law for Pennsylvania, responded to the Commonwealth Court’s decision, saying, “We are prepared to continue advocating for victims and to bring an appeal to the Supreme Court to ensure that the votes of Pennsylvanians are counted and that the voices of the victims are protected.”

In Pennsylvania, constitutional amendments need to be passed by the state Legislature during two successive legislative sessions. In 2018, both chambers unanimously passed the amendment. In 2019, the state Senate unanimously passed the amendment, and 190 of 202 state representatives voted for it. Gov. Tom Wolf (D) supported the ballot measure, as did the Pennsylvania District Attorneys Association and U.S. Reps. Fred Keller (R) and Scott Perry (R).

Opponents included the ACLU of Pennsylvania, League of Women Voters of Pennsylvania, and Pennsylvania Association of Criminal Defense Lawyers. Marsy’s Law for Pennsylvania raised $6.65 million from the Marsy’s Law for All Foundation to campaign for the measure.

Marsy’s Law ballot measures faced similar lawsuits in state courts in Kentucky and Montana. The amendment was struck down in Montana for violating the state’s separate-vote requirement on constitutional amendments. In Kentucky, after it was struck down for reasons related to ballot language, the state Legislature placed it on the ballot again in 2020. The 2020 version, which was approved, included the full text of the measure on the ballot.

As of January 2021, 12 states had Marsy’s Law amendments. Voters in two additional states—Pennsylvania and Montana—voted in favor of Marsy’s Law amendments, but they were overturned or blocked. Henry Nicholas, the co-founder of Broadcom Corp., started campaigning for Marsy’s Law to increase the rights and privileges of victims in state constitutions. Marsy’s Law is named after Nicholas’ sister, Marsy Nicholas, who was murdered in 1983.

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Pennsylvania voters could decide as many as eight constitutional amendments in 2021 or 2022

In Pennsylvania, the average number of statewide ballot measures for a single year is less than 1. In 2021 or 2022, Pennsylvanians could vote on upwards of eight ballot measures that address electoral and voting policies, legal language and actions, and the governor’s emergency powers.

For an amendment to appear on a statewide ballot the legislature needs to approve it during two legislative sessions, with the final vote taking place at least three months before the election. Amendments can appear on the ballot at the spring primary election or the general election.

During the 2019-2020 legislative session, the state legislature passed eight constitutional amendments. Legislators are required to pass the amendments again during the 2021-2022 legislative session before electors can vote on ratification. An amendment must receive a simple majority vote in each legislative chamber. If partisan control of a legislative chamber changes, the two-session requirement can decrease the likelihood of any amendments that were approved along party lines from receiving a final, second-session vote. Republicans controlled both chambers of the state legislature during the 2019-2020 legislative session. Republicans kept control of the legislature following the election on November 3, 2020. The governor’s signature is not part of the process of placing constitutional amendments on the ballot.

Two of the constitutional amendments passed with nearly unanimous support from Democratic and Republican legislators (one Republican voted against the proposals). 

  • Eliminate Separate Ballot Requirement for Judicial Retention Elections Amendment: The ballot measure would amend the Pennsylvania Constitution to eliminate the requirement that judicial retention elections appear on a separate ballot (or in a separate column on voting machines) from other elections.
  • No-Excuse Absentee Voting Amendment: The ballot measure would amend constitutional language to state that no election law can require voters to physically appear at a polling place on election day. It would also remove the list of excuses related to receiving an absentee ballot.

A third amendment had bipartisan support in the legislature but was rejected by five Democrats and 16 Republicans. 

  • Childhood Sexual Abuse Retroactive Lawsuits for Two-Year Period Amendment: The ballot measure would create 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 fourth amendment had the support of most Republicans (two dissents) and about two-fifths of Democrats.

  • Lieutenant Governor Selection Amendment: In Pennsylvania, a political party’s candidates for governor and lieutenant governor are elected on a joint ticket at the general election. As of 2020, candidates for governor and lieutenant governor run in separate primaries for their party’s nomination and then form a joint ticket. The ballot measure would allow a political party’s candidate for governor to choose their own candidate for lieutenant governor. The ballot measure would provide that political parties may approve or reject their gubernatorial candidate’s pick for lieutenant governor.

The remaining four constitutional amendments were passed as a package and mostly along party lines. All Republicans supported the legislation, while 9 percent of legislative Democrats supported the package.

  • Equal Rights Regardless of Race or Ethnicity Amendment: The ballot measure would add the following section to the Pennsylvania Constitution’s Declaration of Rights: “Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the race or ethnicity of the individual.”
  • Districts for State Supreme, Superior, and Commonwealth Court Elections Amendment: The ballot measure would change how voters elect justices and judges of the Pennsylvania Supreme Court, the Pennsylvania Superior Court, and the Pennsylvania Commonwealth Court. As of 2020, justices and judges of these courts are elected statewide. The ballot measure would provide for justices and judges to be elected from representative districts, which the Pennsylvania General Assembly would be responsible for establishing
  • Governor’s Emergency Declaration Amendment: The ballot measure would define the governor’s power to use executive orders to declare emergencies, allow the state legislature to pass laws related to how emergencies must be managed, and limit a governor-issued emergency declaration to 21 days unless extended by a vote of the legislature.
  • Legislative Resolution to Extend or Terminate Emergency Declaration Amendment: The ballot measure would allow the Pennsylvania General Assembly to pass a resolution extending or terminating an emergency declaration issued by the governor.

Since 1995, a total of 17 measures appeared on statewide ballots in Pennsylvania, and voters approved all of them. 

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Conor Lamb wins re-election to Pennsylvania’s 17th Congressional District

Incumbent Conor Lamb (D) defeated challenger Sean Parnell (R) in Pennsylvania’s 17th Congressional District.

Lamb was first elected in a March 2018 special election for the remainder of Tim Murphy’s (R) term in what was then the 18th Congressional District. Lamb defeated Rick Saccone (R) 49.9% to 49.5% to flip the seat. Following court-ordered redistricting later that year, Lamb won election to the new 17th District 56.3% to 43.7% over Keith Rothfus (R). Preliminary returns indicate that Parnell won by a more narrow 51.1% to 48.9% margin this year.

In the 2016 presidential election, Donald Trump (R) defeated Hillary Clinton (D) 49% to 47% in the district, making it one of 30 districts Democrats were defending this year that President Trump carried in 2016.



Perry wins re-election in Pennsylvania’s 10th Congressional District

Incumbent Rep. Scott Perry (R) defeated Eugene DePasquale (D) in the general election for Pennsylvania’s 10th Congressional District. 

Perry was first elected to represent Pennsylvania’s 4th Congressional District in 2012. Following court-ordered redistricting in 2018, he was elected to the 10th District. In 2018, Perry defeated George Scott (D) 51.3% to 48.7%.

Heading into the election, Democrats had a 232-197 majority in the House.



Toomey announces he won’t run for re-election to U.S. Senate in 2022

On Oct. 5, U.S. Senator Pat Toomey (R-Pa.) announced that he would not seek re-election to the U.S. Senate and would be retiring from Congress. Toomey also stated that he would not run for governor of Pennsylvania in 2022.

At a press conference, Toomey said, “I will not be running for reelection in 2022 and I will not be running for governor. I will serve out the remainder of my term for a little over two years that are left to the current term and after that my plan is to go back to the private sector.” While he said he had no specific plans, he said he looked forward to spending more time with his family.

Toomey was first elected to the U.S. Senate in 2010, defeating Joe Sestak (D) 51% to 49% for the seat previously held by Arlen Specter (D). Toomey won re-election in 2016, defeating Katie McGinty (D) 48% to 47%. Prior to his time in the Senate, Toomey represented Pennsylvania’s 15th Congressional District from 1999 to 2005.

Republicans are currently in the majority in the U.S. Senate with 53 seats. Democrats hold 45 seats and two are held by independents who caucus with the Democratic Party.

Thirty-five Senate seats are up for election in 2020. If Republicans lose no more than two seats, they will retain control of the Senate. If Democrats win four or more seats, they will gain a majority. If Republicans lose exactly three seats, whichever party wins the presidential election will have the majority, as the vice president serves as president of the Senate.

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Federal judge finds Pennsylvania’s COVID-19 orders unconstitutional

On September 14, 2020, Judge William Stickman IV, of the U.S. District Court for the Western District of Pennsylvania, struck down some of Penn. Gov. Tom Wolf’s (D) COVID-19 orders as violations of rights guaranteed by the U.S. Constitution.

Various Pennsylvania counties, businesses, and elected officials brought the lawsuit County of Butler v. Wolf, which challenged restrictions on indoor and outdoor gatherings, the continued closure of “non-life-sustaining” businesses, and prolonged stay-at-home orders. In his decision, Stickman wrote the “liberties protected by the Constitution are not fair-weather freedoms,” and the “Constitution cannot accept the concept of a ‘new normal’ where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures.” President Donald Trump (R) appointed Stickman to the federal bench.

Stickman found “(1) that the congregate gathering limits … violate the right of assembly enshrined in the First Amendment; (2) that the stay-at-home and business closure components of defendants’ orders violate the due process clause of the Fourteenth Amendment; and (3) that the business closure components of defendants’ orders violate the Equal Protection Clause of the Fourteenth Amendment.” Stickman limited remedy to the plaintiff individuals and businesses, dismissing the counties for lacking standing to sue.

Thomas E. Breth, an attorney for the plaintiffs, said, “You can’t tell 13 million Pennsylvanians that they have to stay home. That’s not America. It never was. That order was horrible.” Lyndsay Kensinger, Wolf’s press secretary, indicated that Wolf would seek to stay the decision while seeking an appeal, adding that the “ruling does not impact any of the other mitigation orders currently in place including … mandatory telework, mandatory mask order, worker safety order, and the building safety order.”

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U.S. Senate confirms two U.S. District Court nominees

The U.S. Senate confirmed Christy Wiegand to the U.S. District Court for the Western District of Pennsylvania and Brett Ludwig to the U.S. District Court for the Eastern District of Wisconsin. The Western District of Pennsylvania and the Eastern District of Wisconsin are two of 94 U.S. District Courts. They are the general trial courts of the United States federal courts.

After Wiegand receives her federal judicial commission and takes her judicial oath, the court will have eight Republican-appointed judges and two Democrat-appointed judges. Wiegand will join seven other judges appointed by President Trump.

After Ludwig receives his judicial commission and takes his judicial oath, the court will have two Republican-appointed judges and two Democrat-appointed judges. Ludwig will be the first judge appointed by President Trump to join the court.

The U.S. Senate has confirmed 205 of President Trump’s Article III judicial nominees—two Supreme Court justices, 53 appellate court judges, 148 district court judges, and two U.S. Court of International Trade judges—since January 2017.

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Pennsylvania Supreme Court justice expresses misgivings about judicial deference

Banner with the words "The Administrative State Project"

Pennsylvania Supreme Court Justice David N. Wecht on July 21 issued a concurring opinion in Crown Castle NG East LLC and Pennsylvania-CLE LLC v. Pennsylvania Public Utility Commission expressing what they called “deep and broad misgivings” about the court’s practice of deferring to state agency interpretations of statutes and regulations.

The case challenged the Pennsylvania Public Utility Commission’s (PUC) interpretation of a statute governing public utilities. The PUC argued that the court should defer to its statutory interpretation because of the subject matter’s highly technical nature. The court, however, refused to defer to the PUC’s interpretation because it found the statute in question to be clear and unambiguous.

“A court does not defer to an administrative agency’s interpretation of the plain meaning of an unambiguous statute because statutory interpretation is a question of law for the court,” wrote Justice Sallie Updike Mundy in the opinion.

In a concurring opinion, Justice Wecht expressed uncertainty about the court’s deference practices. Wecht pointed to the lack of clarity surrounding the court’s approach to deference, arguing that the court’s deference doctrines aren’t clearly distinguishable and have been, in their words, “thrown together over time.”

Ballotpedia tracks state approaches to judicial deference as part of The Administrative State Project. Since 2008, Wisconsin, Florida, Mississippi, Arizona, and Michigan have taken executive, judicial, or legislative action to limit or prohibit judicial deference to state agencies.

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U.S. Senate confirms Hardy to U.S. District Court for the Western District of Pennsylvania

The U.S. Senate confirmed Scott Hardy to the U.S. District Court for the Western District of Pennsylvania by a vote of 65-30 on July 27. The Western District of Pennsylvania is one of 94 U.S. District Courts. They are the general trial courts of the United States federal courts.

After Hardy receives his judicial commission and takes his judicial oath, the court will have one vacancy, seven Republican-appointed judges, and two Democrat-appointed judges. Hardy will join seven other judges appointed by President Trump.

Hardy was born in Pittsburgh, Pennsylvania, in 1971. He earned his B.A., magna cum laude, from Allegheny College in 1993 and his J.D. from Notre Dame Law School in 1996. He was a shareholder at Ogletree, Deakins, Nash, Smoak & Stewart, P.C., in Pittsburgh from 2010 to 2020.

The U.S. Senate has confirmed 201 of President Trump’s Article III judicial nominees—two Supreme Court justices, 53 appellate court judges, 144 district court judges, and two U.S. Court of International Trade judges—since January 2017.

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Pennsylvania House Speaker Turzai Resigns

Pennsylvania House Speaker Mike Turzai (R) resigned from the legislature on June 15 to take a job in the private sector. He was first elected as a state Representative in 2001 and had announced in January that he would not run for election in 2020. Turzai had served as Speaker of the House since January 2015. He previously served as the House majority leader from 2011 to 2014.

The current partisan composition of the Pennsylvania state House is 109 Republicans, 93 Democrats, and one vacancy. House Majority Leader Bryan Cutler (R) will serve as interim House Speaker.

The Morning Call reported that Turzai has expressed an interest in running for governor in 2022. He was a 2018 gubernatorial candidate but withdrew from the race before the filing deadline and ran for re-election to the state House of Representatives that year instead. Incumbent Gov. Tom Wolf (D) will be prevented by term limits from seeking re-election in 2022.

The Pennsylvania House of Representatives is among 22 state legislative chambers Ballotpedia has identified as battleground chambers for 2020. Democrats would need to flip nine of 203 seats in order to gain control of the chamber. Republicans will maintain control of the chamber if they lose partisan control of eight seats or fewer. In the 2018 elections, 31 races were decided by a margin of 10% or smaller.

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