In the suit against the state's top election official, Pedro Cortes, former Chief Justices Ronald D. Castille and Stephen Zappala Sr. and Philadelphia lawyer Richard A. Sprague contend that the GOP-controlled legislature's revised language is "deceitful," and would deprive them and other voters of their constitutional right to have all the facts necessary to make an intelligent and fully informed decision on the measure.
The initial ballot question asked voters whether they would approve of raising the mandatory retirement age for judges from 70 to 75.
The new language asks voters only whether they would approve of requiring judges to retire at age 75. It strips out the fact that the mandatory retirement age under current law is 70, and thus that what they are actually being asked is whether to increase it by five years.
"In a democracy, it is indisputable that voters are required to have the information necessary to make the best decisions on matters of critical importance," states the Commonwealth Court suit.
It adds: "The ballot question ... is misleadingly designed to garner `yes' votes from voters who are actually in favor of restricting the terms of judges and justices, but are unaware that the proposed amendment will have the opposite effect."
Cortes' spokeswoman, Wanda Murren, said in a statement: "We haven't seen the filing yet, so we cannot comment." Jeff Sheridan, spokesman for Gov. Wolf, noted that Cortes was directed by the legislature to use the revised language and intends to present it to voters on the November ballot "unless a court orders him to do otherwise."
Top senators who championed the change in wording did not return repeated calls seeking comment Thursday. They have previously said that voters who want more information about the question can read a separate document about it that will be available at their polling station.
Rep. Kate Harper (R., Montgomery), who sponsored the legislation to increase the retirement age for judges, arguing it was long overdue, said Thursday she worried about the impact the suit might have on resolving the ballot question. Changing the mandatory retirement age requires an amendment to the state constitution; thus, it needs approval by the legislature in two consecutive sessions before it could appear on the ballot. "As the legislator who carried the water for this," Harper said, "it takes forever to get a bill across the finish line."
Castille, Zappala, and Sprague are asking the state Supreme Court to take up the matter on an emergency basis, since timing is critical. State election officials are required to advertise the language used in ballot questions at least three months in advance of the Nov. 8 election.
The push to allow judges to retire at 75 began with little controversy several years ago, with many legislators arguing that judges are living longer and should be allowed to work longer.
Legislators backed it overwhelmingly, with the measure receiving bipartisan support in the 2013-14 session and the one that began in January.
It was sailing smoothly until Cortes' Department of State wrote the wording for the ballot question earlier this year, and made arrangements for it to appear on the April primary ballot.
The wording: "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 new language legislators approved read: "Shall the Pennsylvania Constitution be amended to require that 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?"
The change was made so close to the primary that counties had already printed ballots containing the original wording. So the legislature directed Cortes to disregard the results of any primary votes and ordered that the question appear with the new wording on the Nov. 8 ballot. Nearly 2.4 million voters cast ballots on it this past spring, narrowly defeating it.
The results were not a surprise. Voters in other states have overwhelmingly tanked similar measures to raise or repeal the mandatory retirement age for judges.
Sen. Daylin Leach (D., Montgomery) has cast the last-minute change as little more than a political move by Republican lawmakers to protect Supreme Court Chief Justice Thomas G. Saylor, a Republican. Republicans are now in the minority on the seven-member court. The impact on the high court would be immediate, with Saylor turning 70 at the end of this year. The next justice in line to lead the high court is Max Baer, a Democrat.
"Everybody knows that this language was changed to fool the voter into thinking they are now standing up and kicking these judges off at 75, with no realization that they've extended their terms for another five years," he said.
Jordann Conaboy, the Sprague & Sprague attorney representing Sprague, Castille, and Zappala, put it this way: "This case isn't necessarily about the judicial retirement age. ... This case is about the ability of citizens to cast informed votes, which is the lifeblood of democracy."
He added: "We simply ask the court to make it clear to public officials that they must be open, honest, and transparent with the electorate."