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If the votes cast in one of two referendums during Tuesday's primary had counted, the retirement age for the judges in the state would remain the same.

Voters were asked if judges should be allowed to work until age 75. The constitution currently requires the state’s roughly 1,000 judges, district judges and justices to retire by the end of the year in which they turn 70.

A mere 46,000 votes, which don't actually count, separated the "yes" crowd from the "no" voters. Just under 1.2 million voters said they want the retirement age increased to 75 while just over 1.2 million want it to stay at 70, according to unofficial election returns from the Pennsylvania Department of State.

In York County, the question also failed, with 52,657 voters saying "no" while 48,398 approved, according to unofficial results from the county's elections office.

But the results don't matter, at least for now.

Next time: Republican-led legislative wrangling a few weeks before the primary pushed the ballot question to the November general election.

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The action came too late for county election offices to remove the question from the primary ballot.

Some state lawmakers argued the wording of the question was too confusing for voters and that fewer independent voters would turn out at the polls since Pennsylvania has closed primaries. However, independents are allowed to vote on referendums in primaries.

The state spent $1.3 million on advertising the question and a second one to dissolve the Philadelphia traffic court for the primary. Proponents to move the retirement age referendum to November did not attempt to also move the traffic court question, so it remained on the primary ballot and was approved by voters

Supporters of rewriting the ballot question also said the referendum’s language, drafted by the attorney general’s office, is needlessly confusing. The replacement language would say judges can serve until 75, but would remove the wording that explains the current retirement age is 70.

"Under the House resolution, as it stands, it will be on the November ballot," said Wanda Murren, spokeswoman for the Department of State.

It is expected to cost the state about $1 million to readvertise the question in newspapers for the November election, she said.

Lawsuit: There's an outstanding lawsuit three Senate Democrats filed ahead of the primary that asked the court to allow  votes in the retirement age referendum be counted and made official.

Sen. Daylin Leach, D-Montgomery, Senate Minority Leader Jay Costa, D-Allegheny, and Sen. Christine Tartaglione, D-Philadelphia, asked the Commonwealth Court to declare the postponement an unconstitutional infringement of voters’ rights.

Leach, who personally supports the retirement age change, previously told the Associated Press  changing the rules would set a bad precedent.

He has said he suspects Republicans of wanting to change the wording so the referendum has a better chance of passing, therefore giving more years on the bench to the lone Republican on the state’s highest court, Supreme Court Chief Justice Thomas Saylor. Saylor turns 70 in December.

— Reach Greg Gross at ggross@yorkdispatch.com.

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