Pennsylvania's chief elections official asked the state Supreme Court late Thursday to overturn a lower court's ruling that prevents the state from immediately counting or certifying results in next week's referendum on a crime victims' rights constitutional amendment.
Acting Secretary of State Kathy Boockvar's emergency application argued that the ruling a day earlier by Commonwealth Court Judge Ellen Ceisler will suppress voter turnout and "foment irreparable uncertainty" among voters.
She told the justices that if they do not act as she is requesting, it will taint the results of the voting on Tuesday. She argued that Ceisler wrongly did not stay the effect of her decision, thereby denying Boockvar her legal right to appeal without having the injunction take immediate effect.
"The Commonwealth Court has told the electorate that their vote will not be counted in the normal course, and may never be counted," wrote lawyers with the attorney general's office, representing Boockvar. They said reversing the decision won't affect the plaintiffs' legal challenge, no matter whether the referendum passes or not.
"Once the election has been tainted by the injunction it cannot be remedied after the fact if (Boockvar) prevails on the merits," they argued.
The Supreme Court's prothonotary office issued an order that gave the attorney general until 10 a.m. Friday to file a brief. The plaintiffs, led by the Pennsylvania League of Women Voters, have until 4 p.m. Friday to respond, suggesting the high court is poised to act quickly.
A spokesman for the state chapter of the American Civil Liberties Union, which represents plaintiffs in the case, declined comment on Boockvar's request.
The amendment , part of a national "Marsy's Law" campaign, would enshrine into the state constitution a set of victims' rights, including to be notified about, attend and weigh in during plea hearings, sentencings and parole proceedings. It also requires a prompt and final conclusion of cases and post-conviction proceedings, as well as the right to full restitution.
Ceisler ordered that her injunction remain in place until the underlying legal challenge to the amendment was concluded, including appeals.
Earlier Thursday, the Department of State told counties to handle the Tuesday voting as they normally would, saying the state agency does not expect them to take any action regarding the proposed amendment. Counties are expected to count their votes on the referendum following normal procedures and forward the results to the Department of State.
Doug Hill with the County Commissioners Association of Pennsylvania said the state's guidance was appreciated.
"Their basic 'how to handle it' is do nothing different," Hill said. "Nothing different on how we count, how we post. No special notice in the polling place on the injunction and where it stands."
Ceisler said the amendment would have immediate, profound and irreversible consequences for the rights of accused and the criminal justice system.
She said the ballot question did not fully inform voters of what the proposal will do, and that the amendment improperly combined several elements that should be voted on separately.
