- Associated Press - Tuesday, April 19, 2016

HARRISBURG, Pa. (AP) - The fate of a ballot question about state judges’ mandatory retirement age hung in limbo Tuesday after a hearing about a last-minute legislative referendum to pull it and the subsequent lawsuit by three Democrat state senators who argue the vote must go on.

Commonwealth Court Judge Kevin Brobson didn’t say when he would rule, but he clearly was struggling with the complicated legal issues and possible repercussions any decision could have for counting votes accurately during a high-profile primary election a week away.

Elections officials described a range of possible actions for the court but emphasized that practices vary among counties and the election is just around the corner.

“No matter what I do here, people next week are going to vote on this question,” Brobson said.

The proposal would let judges remain on the bench until age 75, five years longer than the state Constitution currently allows. It has passed both chambers of the Legislature in two consecutive sessions and was placed on the primary ballot for the final OK before lawmakers had a change of heart.

A resolution that passed with bipartisan support this month directed that the vote should be delayed until November, saying it had to be reworded so it doesn’t specify the current age limit for judges and ordering state elections officials not to tally any primary votes on the question that do get cast.

State elections official Jonathan Marks said one option is to “mask from public view” the results from Tuesday until the lawsuit is resolved.

Three senators are seeking a preliminary injunction so the issue is voted on across the state next week while their lawsuit proceeds. George Bochetto, representing Senate Minority Leader Jay Costa and Sens. Daylin Leach and Christine Tartaglione, argued against a scenario in which officials would collect the votes but not disclose the results while litigation continues.

“I’m afraid we’re going to get laughed at a bit when we say, ‘Everybody vote on this, we’ve got all these votes but we’re not going to count them,’” Bochetto said.

Matt Haverstick, a lawyer for two of the three defendants, Senate Republican leaders Jake Corman and Joe Scarnati, said no one is being denied a vote on the ballot question by delaying it until November. Turnout in the fall will be higher and include independents and third-party voters who vote in small numbers during the spring primary, he said.

“The question is being moved to a point in time that doesn’t disenfranchise anybody,” Haverstick said. “To the contrary, it gives more Pennsylvanians the ability to vote on the question.”

The resolution said the state could “not make a tally of votes cast” in the primary, but elections officials said there was probably not enough time to make computer programming changes needed to accomplish that and still test for glitches. Pennsylvania has the most electoral votes of any state in play on Tuesday, as presidential nominating races are still active for both major parties.

Much of the hearing involved the practical challenges of running an election and the challenges that late changes could generate.

Brobson said he was concerned that withdrawing the question could affect the other voter question on the primary ballot - whether to eliminate Philadelphia’s scandal-plagued traffic court.

Bochetto raised issues about what postponement would mean for the 32,000 absentee ballots, including by those serving with the military and living overseas, that have already arrived at elections offices.

Haverstick argued the same issue regularly arises when candidates get thrown off the ballot after absentees are sent out - absentee votes for those candidates simply are not counted.

Pennsylvania has spent about $2.6 million to advertise the ballot question. Marks said delaying it until November will cost about $1.3 million more.

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This story has been corrected to show the correct title of Jay Costa is Senate minority leader, not Senate majority leader.

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