Linda Kerns: Judges should be faithful to Constitution

Bizar Male

Pennsylvanians elect judges in odd years. More accurately, a small percentage of Pennsylvanians participate in these “off year” elections so that even though we have over 8 million registered voters, only about a million voters (12% ) weigh in on who should take the bench. That should worry those who live in our commonwealth, because even if you have the good fortune of never stepping into a courtroom, decisions of judges affect many aspects of your day-to-day life.

Judicial decisions, whether about business, government, commerce, family life or crime, shape Pennsylvania’s economy, control the actions of elected officials, affect family structures, and contribute to our sense of safety and security.

At the county level, the judges have an immediate impact on the litigants that appear in their courtrooms. Statewide, our appellate courts, which include the Commonwealth Court, Superior Court and Supreme Court, weigh in on and either approve or change the actions of lower court judges. While the judiciary should be limited to interpreting the law, sometimes the opinions go a little beyond than that, and judges find themselves wading into territory traditionally reserved for the Legislature, changing or rewriting laws.

During the 2020 presidential election, almost 6 million Pennsylvanians cast a vote for president. That means more than 70% of our registered voters participated in that election. However, disagreements over which ballots were counted, who could watch the counting and what constituted an acceptable ballot, among other skirmishes, landed in the courts. In more than a few of Pennsylvania’s 67 counties, campaigns squabbled over what exactly the law required for a mail-in ballot to be accepted.

The Pennsylvania Election Code states that a voter must “fill out, date and sign the declaration printed on (the outside) envelope.” Some Pennsylvania election boards decided that as long as the envelope was dated and signed, that met the requirements. Others, however, also required that the voter fill out the lines for their printed name and address. Some thought the date was not necessary as long as the ballot got there on time. Some of this confusion got dumped in the laps of Common Pleas judges, who then had to decide which ballots would be counted and which would be discarded.

In Allegheny County, when this issue was appealed to the Commonwealth Court, Judge Kevin Brobson wrote an opinion that it was not the judiciary’s role to relax or ignore the Election Code, which had been duly passed by the Legislature. Accordingly, he decided that “fill out, date and sign” meant just that, and if a voter missed one of those steps, the ballot was defective. Brobson went on to emphasize the importance of treating voters equally no matter where they live. Therein lies the genius of his opinion.

If, for example, Philadelphia County accepted and counted ballots that lacked some of the requirements, but Lycoming, Tioga or Potter County took a stricter approach, then your vote got treated differently depending on the county where you live. Not only does that offend a sense of fairness, it violates both the United States and Pennsylvania Constitutions.

Both our country and our commonwealth were founded on a few basic but important principles, including equal protection under the law. That weighty concept protects each of us from being treated differently by our government, depending on where you live in our great state.

When counties treated ballots differently, the guarantee of equal protection fell by the wayside. In the aforementioned Allegheny County case, the court referred to what was happening across the state as a “patchwork system” and saw the danger to our democracy when we allow such arbitrariness and across the commonwealth. Unfortunately for our citizens, the Supreme Court of Pennsylvania overturned that well reasoned decision so that, whether your vote counted depended not on the statewide law, but the opinion of your local officials and judges.

The 2020 presidential election demonstrated the power of the judiciary in this commonwealth — and the judicial decisions may very well have swung the election. At the very least, the decisions decided which votes were counted and which were not. Ironically, the judges who made such powerful decisions in 2020 were elected in years when only about 12% of our voters even show up to the polls. So, those voters, who cast their votes in those low turnout elections year, might have had much more power than the over 70% who voted in 2020.

This year is an odd year, which means we elect statewide judges. A coveted position on our seven-member Supreme Court is up for grabs. What kind of judge do we want in that role? One who knows that every Pennsylvanian must be treated equally?

If you are one of the few voters who turn up this year, you will participate in that decision. As an election law attorney, I saw firsthand in 2020 how judges who did not value equal protection caused chaos, confusion and unfairness. Hopefully, voters will prioritize faithfulness to the Constitution and cast their votes for judges accordingly.

Linda Kerns is a Philadelphia attorney who was the Philadelphia counsel to Donald Trump’s campaign for president in 2016 and 2020.

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