On Friday, the Pennsylvania Supreme Court split 3-3 on whether to change the wording of a ballot question for this November’s election. The ballot question will determine whether the current mandatory retirement age for Pennsylvania judges will be raised from 70 to 75. The ruling upholds the lower court’s decision to accept Republicans’ version of the question and rejects Democrats’ attempts to broaden the language.
The case is an unusual one, and not just because of the 3-3 split. (In a world with only eight justices on the U.S. Supreme Court, we’ve started to get too used to evenly-divided courts.) The case has seen last-minute changes to ballots, our Secretary of the Commonwealth flip-flopping on the issue, and even Democrats and Republicans teaming up together.
Currently, our state’s constitution requires judges to retire the calendar year after they turn 70 (see Article V, § 16). It’s a common practice across the country, although certainly not uniform; 31 states (including D.C.) have a mandatory retirement age, while 20 don’t. All of the ages are between 70 and 75, except for Vermont, which oddly sets the retirement age at 90.
So, over the last two years, the General Assembly has gone through the process of amending the state constitution. In two consecutive sessions, a measure was approved to increase the retirement age from 70 to 75. It was supported by both parties and passed easily. The only hurdle left to clear was approval of the voters via ballot question.
The only plausible reason for the change is to mislead voters into approving something that they otherwise wouldn’t, a tactic which is both disingenuous and a disservice to voters.
The original ballot question, which was written by Secretary Cortes, read as follows:
“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?”
Nice and clear, right? That language was approved all the way to the point of being printed on the April primary ballots for voters to either approve or reject. But then Republicans changed the wording at the last minute, making the April ballot question moot. That’s why you may have been told your vote on that question was not needed.
The new language, which will now appear on the November ballot is:
“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?”
That’s technically the same question. But the first version, the one we originally were meant to vote on, not only contains more information, it’s more honest about what’s at stake.
To be clear, most voters probably don’t even know there is a mandatory retirement age, let alone what it is. For all they know, it could be 65, 70, even 80. With the new wording put forward by Republicans, many voters may think that they’re imposing a mandatory retirement age for the first time—not that a “yes” vote will actually extend judges’ terms by five years.
Which is the crux of the issue: Voters are generally hesitant to give any elected official more time in office than they were originally elected for. For example, I doubt anyone would vote to give Pat Toomey or Bob Casey an extra five years in the Senate without another election.
The only plausible reason for the change is to mislead voters into approving something that they otherwise wouldn’t, a tactic which is both disingenuous and a disservice to voters. Secretary of State Pedro Cortes, a Democratic appointee, argued in favor of this new language at the Supreme Court in August—even after arguing against it earlier in the Spring. A spokeswoman from Cortes’s office explained the flip-flop this way: “The Senate passed a resolution with the new language, and Secretary Cortes felt that this version was also adequate.” Okay. But adequate to whom? Certainly not to the only people who matter in this case—the voters.
Whether you believe that the retirement age for judges should be raised—or, frankly, don’t really care—we should all be able to agree on one thing: Voters shouldn’t be tricked into their decisions.
Generally, it would be difficult to know whether voters who approve the Republicans’ language are actually intending to give judges five bonus years, or think they’re keeping older judges from making vital decisions about our Commonwealth. But we actually have our own built-in experiment. Despite not actually counting for anything, the question with the original language (which spelled out the current retirement age) still appeared on the ballot in April. And voters rejected that phantom measure, 51 percent to 49 percent.
That means that if even one percent of voters in November are confused about the real meaning of the question, their “yes” vote would trigger a constitutional amendment allowing judges an extra five years on the bench. All thanks to a deliberately-orchestrated misunderstanding.
Now, there are perfectly valid arguments both for and against higher mandatory retirement ages. Those in favor of higher ages say that it’s better to have judges with as much experience as possible. They also point out that no other elected officials are subjected to such age limits. Even if an age limit is appropriate, there’s an argument to be made that 70 is too young; we chose it at a time when life expectancy was shorter and mental capacity was more likely to diminish than it is now.
Proponents of mandatory retirement ages will of course argue that ability declines with age. In addition, injecting younger blood into the courts may bring fresh perspectives and diversity of ideas. Finally, they argue that there’s no evidence that mandatory retirement ages are harmful to any judiciary system.
Whether you believe that the retirement age for judges should be raised—or, frankly, don’t really care—we should all be able to agree on one thing: Voters shouldn’t be tricked into their decisions.Header photo by Keith Bacongco via Flickr