The League of Women Voters of Pennsylvania (LWV Pennsylvania) filed an amicus brief in a lawsuit challenging several proposed constitutional amendments passed by the Pennsylvania legislature. The suit alleged the proposed amendments, ranging from an explicit declaration that there was no state constitutional right to abortion to changing the process of electing the lieutenant governor, violated several provisions of the Pennsylvania constitution’s amendment process.
The League of Women Voters of Pennsylvania (LWV of Pennsylvania) moved to intervene on behalf of voters in a case brought by Governor Tom Wolf of Pennsylvania seeking to invalidate several constitutional amendments proposed by the Pennsylvania legislature.
Pennsylvania’s Constitution may be amended if the legislature, by a majority vote in both houses, passes amendments in two successive legislatures. The amendments are then presented to voters for approval or disapproval by a simple majority. The state Constitution imposes significant limits on this process. Among these is a requirement that multiple proposed amendments be voted on separately by voters. This means that the legislature may not bundle amendments with differing subjects into a single amendment for the voters to approve.
In July 2022, the Pennsylvania legislature passed SB 106, which contained four proposed constitutional amendments. The amendments would make the following changes to the state Constitution:
- Explicitly stating the Pennsylvania Constitution grants no right to taxpayer-funded abortion, or “any other right relating to abortion” (“Abortion amendment”);
- Allowing the legislature to overturn “regulations” by a majority vote without the Governor’s consent;
- Allowing gubernatorial candidates, with their party’s approval, to select its candidate for lieutenant governor;
- Raising the voting age to twenty-one. Requiring citizens to reside in Pennsylvania for at least ninety days and in the election district where they live for at least sixty days to be eligible to vote. Requiring voters to present identification when voting; and
- Allowing the legislature to pass a law providing for “auditing” of elections and election results by the State Auditor, or an independent auditor when the State Auditor is up for election.
SB 106 was first introduced in January 2021 as a single constitutional amendment allowing a gubernatorial candidate to select their running mate. The bill was then amended to add the other four amendments at issue, with the abortion amendment being added after the Dobbs decision abolished the federal right to abortion. In July 2022, after a late-night committee hearing, the amendments, packaged together in a single bill, were approved by the legislature.
In response, Governor Wolf and the Secretary of the Commonwealth, Leigh Chapman, (“plaintiffs”) filed a lawsuit in the Supreme Court of Pennsylvania, arguing SB 106 violated the Pennsylvania Constitution in several ways. First, they asserted the abortion amendment was two amendments packaged as one: a question on whether there was a right to taxpayer-funded abortion, and another on whether the state Constitution granted any rights relating to abortion. By combining these questions in one amendment, the plaintiffs asserted this violated the Pennsylvania Constitution's requirement that constitutional amendments must be voted on separately by voters. The plaintiffs also argued that the abortion amendment illegally restricted the fundamental rights to personal liberty and privacy, which the Pennsylvania Constitution enshrined as being exempt from the constitutional amendment process.
LWV of Pennsylvania also moved to intervene on behalf of voters. The Pennsylvania Supreme Court subsequently rejected the Governor’s petition, stating the lawsuit needed to be filed in the lower Commonwealth Court first. As a result, the League’s application for intervention was also dismissed by the court. The plaintiffs re-filed their petition on September 23, 2022, and the League moved to intervene on behalf of voters on October 7, 2022. The Commonwealth Court rejected the League’s motion to intervene but allowed it to file an amicus brief, which was submitted on November 10, 2022.
Litigation is ongoing. The League is represented by Morgan, Lewis and Bockius, LLP.
SB 106 introduced
SB 106 is introduced. This first version of the bill contains a single constitutional amendment, which allows gubernatorial candidates to select their party’s candidate for lieutenant governor, instead of having the candidates run in a primary.
Final version of SB 106 passed
The final version of SB 106, containing amendments restricting abortion rights, allowing the legislature to overturn regulations, changing voting age and residency requirements, requiring voter ID, and reforming the process for electing the lieutenant governor, is passed.
Governor Wolf files application for extraordinary relief
Governor Tom Wolf and Secretary of the Commonwealth Leigh Chapman file a petition in the Pennsylvania Supreme Court, arguing SB 106’s passage violated the constitutional amendment process. The petition also argues the amendments infringe on indefeasible rights, are multiple amendments packaged in one bill, alter the separation of powers, and violate the state constitution’s Free and Equal Elections clause.
LWV of Pennsylvania files application for intervention
LWV Pennsylvania files an application for intervention. The application argues the passage of SB 106 prevented voters from knowing how their legislators would vote on each individual amendment by combining them in a single bill. The League also asserts some of the amendments conflict with United States Supreme Court precedent and the United States Constitution.
Pennsylvania Supreme Court denies application for intervention
The Pennsylvania Supreme Court dismisses the League’s petition to intervene and the plaintiffs’ application for emergency relief, directing the parties instead to refile the case in the lower Commonwealth Court of Pennsylvania.
Governor Wolf re-files petition
Governor Tom Wolf and Secretary of the Commonwealth Leigh Chapman refile their petition in the Commonwealth Court of Pennsylvania.
Commonwealth Court denies application for intervention
The Commonwealth Court denies the League’s application for intervention but permits it to file an amicus brief.
LWV of Pennsylvania files amicus brief
LWV Pennsylvania submits an amicus brief arguing that the abortion amendment is two amendments in one, violating the state constitution's separate vote requirement. The brief further asserts the amendments on voting violate the Free and Equal Elections clause of the state constitution and the Twenty-Fourth Amendment of the US Constitution.
Commonwealth court dismisses case as not ripe for review
The commonwealth court rules that the case is not ready for review. The court's opinion states that because the legislature had not passed the amendments a second time, and the voters had not voted on the amendments, the plaintiffs had not suffered any harm that would merit judicial intervention. The court did not consider the merits of the amendments.