What you need to know about Election Day’s yes or no question

The question, what’s at stake, the controversy — and more.

Allegheny County Sample Ballot
MJ Slaby

In one week, voters will head to the polls to cast their votes on Election Day.  And there will be one question on the ballot that doesn’t ask you to pick a name, but yes or no.

It’s for a proposed constitutional amendment that would change the mandatory retirement age for justices of the Pennsylvania Supreme Court, judges and magisterial district judges.

It’s been delayed and edited.

And this is what you need to know.

What’s the question?

“Shall the Pennsylvania constitution be amended to require that the justices of the Supreme Court, judges and magisterial district judges be retired on the last day of the calendar year in which they attain the age of 75 years?”

Select yes if you think judges should retire at 75.

Select no if you think judges should retire at 70.

Because what the question *doesn’t* mention is the current mandatory retirement age, which is 70. Hence the controversy.

What did it used to say?

In April, the item — worded at the time to include the current retirement age, 70 — was supposed to be on the primary ballot, but about two weeks before votes were cast, legislators approved a resolution changing it to the question it is now, according to PennLive. This is what it originally said:

Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges and justices of the peace (known as magisterial district judges) be retired on the last day of the calendar year in which they attain the age of 75 years, instead of the current requirement that they be retired on the last day of the calendar year in which they attain the age of 70?

The change was made because senate Republican leaders said it was “confusing and containing unnecessary words,” PennLive reported.

The change came so close to the primary that some ballots still had the original question on them, so state lawmakers had the question moved to the November election, Billy Penn noted, adding that “it does appear more likely the measure will pass with the new language.”

A Franklin & Marshall poll conducted in late September and early October asked respondents three different versions of the ballot question. The current wording of the question led to 64 percent of respondents voting yes to change the retirement age to 75 and 28 percent voting no. The original wording led to 45 percent saying yes and 47 percent saying no. A third sample wording not proposed by lawmakers that also specified the retirement age was going to be increased from 70 to 75 led to 37 percent saying yes and 61 percent saying no.


What’s at stake?

Maida Milone, president and CEO of judicial reform group Pennsylvanians for Modern Courts, said the organization is staying out of the debate, but explained the two sides to 90.5 WESA.

“… we’ve all seen that average life expectancy has increased in recent years, as well as medical advances that allow people to remain healthy and productive much longer than they used to.”

Milone also said:

“It’s also believed that judicial proficiency is honed by experience, and we all thought that people become experts in time. So permitting them to remain on the bench longer really allows the public to benefit from their increased experience.”

On the flip side, she told WESA, many argue that it’s “indisputable that our mental capabilities deteriorate with age,” and older judges already can contribute public service after retirement.

“Finally, judges should represent the populations they serve. We don’t necessarily have the level of diversity on the bench that I think we might like to have. So maintaining the existing mandatory judicial retirement of age 70 will open up more positions and allow for increased diversity on the bench sooner, rather than later.”

Who benefits?

As Billy Penn reported, “Critics suggest Republicans wanted the wording changed so it would have a better opportunity of passing. They won’t necessarily benefit more from an extension of the age limits, but they will benefit first.”

Nineteen judges in Pennsylvania turn 70 this year and are headed for mandatory retirement, including Tom Saylor, the Republican Chief Justice on Pennsylvania’s Supreme Court. The composition of the Supreme Court dramatically changed after last November’s election, flipping from 3-2 Republicans to 5-2 Democrats.

Losing Saylor at the end of this year would be a major hit for the Republicans.

What’s the controversy?

This summer, two lawsuits were filed.

One, seeking to overturn the wording as well as the date change, failed, per Philly.com.

The second was filed by former Pennsylvania Supreme Court chief justices Ronald Castille and Stephen Zappala Sr. and Philadelphia lawyer Richard A. Sprague. Their lawsuit said the current form was misleading and was an attempt to trick voters into approving it, according to the Associated PressIn September, the state Supreme Court deadlocked on that lawsuit, meaning the question will be on your ballot next week.

Three judges said the ballot question wasn’t misleading; three said it was misleading and didn’t meet standards.

Justices Max Baer, Christine Donohue and Sallie Updyke Mundy wanted the lawsuit thrown out and said the ballot question wasn’t misleading the way it is now. But Justice Debra Todds, David Wecht and Kevin Dougherty said it was misleading and didn’t meet the standards of a constitutional amendment question.

The vote was tied because Justice Thomas Saylor excused himself as the question impacts his retirement.

Last week, the court deadlocked on the issue again, philly.com reported. Two days later, the trio who filed the lawsuit asked the U.S. District Court in Philadelphia to say the question is unconstitutional and declare votes invalid. According to the complaint:

“This case involves a demonstrably misleading ballot question and infringement of the inalienable right of Pennsylvania citizens to approve amendments to the Pennsylvania Constitution.”

The court’s answer is still up in the air, so with a week to go, the question stays.

P.S. If you want to see this on a sample ballot — or just find the sample ballot in general — here are two easy steps.