HARRISBURG — A Commonwealth Court judge is expected to decide in the coming days whether the state should count the votes cast Nov. 5 on a proposal to add a Victim's Bill of Rights in the state Constitution.

A lawsuit filed by the League of Women Voters and the American Civil Liberties Union is seeking to get the proposed Victim's Bill of Rights, known as Marsy’s Law, declared unconstitutional because the question includes multiple changes to the Constitution combined in one ballot question.

Wednesday, Steven Bizar, an attorney representing the League of Women Voters, said the groups are asking the court to allow the question to remain on the ballot, but they want the Department of State barred from counting and certifying the results of that vote until after the courts reach a decision on their legal challenge.

Deputy Attorney General Nicole Boland, representing the state in the hearing before Commonwealth Court Judge Ellen Ceisler, objected to the request.

Boland said if the courts move to delay counting the votes it could deter voters from turning out on Election Day or voting on the question if they do show up at the polls. In addition, she said 22,000 people have already voted on the question using absentee ballots.

Bizar said not counting the votes immediately would mean no one would be disenfranchised since the votes would be counted if the courts rule against the legal challenge. If the League of Women Voters and the ACLU are successful, there would be no harm in not counting the votes cast on Nov. 5, he said.

“Pennsylvania voters have no right to vote on a ballot measure that is unconstitutional,” he said.

The Victim's Bill of Rights proposed in Marsy’s Law would mandate that victims receive notice about court hearings and the release or escape of the accused, protection from the accused, prompt conclusion to the prosecution of the case and the right to confer with prosecutors, according to a summary of the law prepared by legislative staff.

The measure placing the question on the ballot passed with bipartisan support in both chambers of the General Assembly and Gov. Tom Wolf has backed the proposal, as well.

Bizar said the League of Women Voters object to the fact that by combining the changes in one ballot question, voters don’t have the opportunity to pick and choose which changes they support.

The ACLU had lobbied against the measure while it was being debated in the Legislature. But the organization’s long-standing opposition to the Victims Bill of Rights shouldn’t be used to diminish the legitimacy of the legal questions surrounding the proposed constitutional amendment, Bizar said.

In addition, defense attorney Ronald Greenblatt testified Wednesday that some of the changes contained in the Victim's Bill of Rights would interfere with efforts by defense attorneys to try to obtain evidence that might benefit their clients.

A section of the proposed Victim's Bill of Rights indicates that victims would be allowed “to refuse an interview, deposition or other discovery request made by the accused or any person acting on behalf of the accused.”

Greenblatt said the reference to discovery requests would be used to bar defense attorneys from getting access to victims’ phones, emails or other social media accounts to search for evidence that could undermine the credibility of the person alleging a crime took place.

“Even the most incriminating statements are made on texts,” he said.

The move to limit defense attorneys’ access to this type of information as soon as possible would cause irreparable harm, Greenblatt said.

“This cannot stand in a society that values the presumption of innocence,” he said.

Jennifer Riley, state director for Marsy’s Law in Pennsylvania, slammed the effort to freeze the vote counting on the ballot question.

“We believe that this request for a Preliminary Injunction was an attempt to undermine the upcoming election, debase an extensive legislative process that has received bipartisan support, and most importantly, deny equal protections to survivors across the state whose lives have been irreparably harmed by crime,” she said.

It’s the not the first time that controversy has erupted over the wording of a ballot question regarding a proposed constitutional amendment. In 2016, the General Assembly voted 15 days before the primary election to delay the vote on a proposed constitutional amendment regarding the retirement age of judges over concerns about the wording.

The move took place so close to the election that the question remained on the ballot and 51 percent of those who voted on the question in the April election opposed raising the judicial retirement age. The judicial retirement age question was put on the ballot a second time in November 2016 and it passed with 51 percent of the vote in favor of the proposal.

John Finnerty reports from the Harrisburg Bureau for The Meadville Tribune and other Pennsylvania newspapers owned by CNHI. Email him at jfinnerty@cnhi.com and follow him on Twitter @cnhipa.

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