By Jack Brammer
FRANKFORT — Franklin Circuit Judge Thomas Wingate ruled Monday that Secretary of State Alison Lundergan Grimes, as the state’s chief election official, cannot certify the votes cast for or against a constitutional amendment known as Marsy’s Law that will be on the statewide Nov. 6 ballot.
In his 18-page order, Wingate said the ballot question, which grants certain rights to victims of crime, does not sufficiently state the substance of the proposed constitutional amendment. The question will remain on the ballot, and officials should count the votes for or against it in case an appellate court rules differently from him, Wingate said.
Sen. Whitney Westerfield, R-Hopkinsville, successfully introduced in this year’s state legislative session the proposed constitutional amendment in the form of Senate Bill 3. Both the Senate and House approved it and drafted the question for it on the ballot.
Voters will be asked this question: “Are you in favor of providing constitutional rights to victims of crime, including the right to be treated fairly, with dignity and respect, and the right to be informed and to have a voice in the judicial process?”
On Aug. 7, the Kentucky Association of Criminal Defense Lawyers challenged the substance of the ballot question, saying the wording is misleading. It filed suit against Grimes, Westerfield, Rep. Joe Fischer and Marsy’s Law for Kentucky LLC.
Kentucky is one of six states with questions about victims’ rights on the ballot in November. The nationwide campaign is named after Marsalee Nicholas, a California college student who was murdered in 1983. One week after her death, the man accused of killing her was let out of jail on bail. Nicholas’ mother did not know that and was confronted by him at a grocery store.
Fifteen states already have similar amendments in their constitutions.
Westerfield, who is chairman of the Senate Judiciary Committee and an announced candidate for attorney general in 2019 after losing to Democrat Andy Beshear in 2015, said he “profoundly” disagrees with Wingate’s ruling “and will seek transfer of the inevitable appeal directly to the Kentucky Supreme Court.”
A statement from Marsy’s Law for Kentucky said, “we strongly believe the ballot question drafted by the General Assembly adequately informs the voters and will immediately appeal the decision to the Kentucky Court of Appeals.”
Louisville attorney R. Kenyon Meyer, who is representing the criminal defense lawyers, said his clients “are pleased with the well-reasoned opinion of the court.”
“Before our Constitution can be changed, the voters should be fully informed about the content of a proposed amendment before they vote,” Meyer said.
Wingate said his ruling does not address the constitutionality or the merits of the substance of Senate Bill 3 but is concerned solely with the wording of the ballot question.
“The heart of the issue before the court is does the question submitted to the electorate incorporate the substance of the amendment in order to properly inform the electorate of the contents of the proposed constitutional amendment,” Wingate said.
He said the question “must encompass the substance of the amendment in order to properly and fairly inform the public of the contents of the proposed constitutional amendment.”
The question submitted by the General Assembly fails to do that, he said. Senate Bill 3 contains numerous new constitutional rights that would be granted to crime victims, such as giving victims timely notice of all court proceedings and the right to be present at the trial and all other proceedings.
“The question drafted by the General Assembly for SB 3 merely asks if voters are interested in providing constitutional rights to victims and instead of stating the proposed constitutional rights simply categorizes the rights as the right to be treated ‘fairly’ and with ‘dignity and respect.’
“The electorate cannot be expected or required to vote on a constitutional amendment of which they are not accurately informed of the substance,” Wingate said.
Wingate said he anticipates the issue will be settled by the appellate courts upon review. He said the secretary of state may tally the ballots but must withhold certification unless ordered to finalize the vote by a reviewing court.
Grimes’ spokesman, Bradford Queen, said the secretary of state is reviewing the ruling. He said votes on the ballot question will be counted and made public but will not be certified until a court says to do so.