How will the arrest of PA Justice Joan Orie Melvin affect the lawsuit against the new voter ID law?

[drm604]

Justice Joan Orie Melvin to step away from state Supreme Court to fight charges
http://www.post-gazette.com/stories/news/politics-state/justice-joan-orie-melvin-to-step-away-from-state-supreme-court-to-fight-charges-636503

State Supreme Court Justice Joan Orie Melvin surrendered to authorities this afternoon to face nine criminal counts pertaining to her alleged use of state resources for campaign purposes.

Melvin has stated that she will not resign. Before her arrest the PA SC had 4 Republicans and 3 Democrats. It now consists of an even balance of 3D/3R. this will continue to be true until the either the case is resolved or she resigns.

The ACLU of PA, along with several other groups, has initiated a lawsuit against PA's new voter ID law.
http://www.aclupa.org/issues/votingissues/voterid
If the case goes to the SC their vote may split along partisan lines meaning that it would be a tie and, if I'm not mistaken, the ruling of the next lower court will stand.


Is this arrest likely to have any effect on the voter ID law? In PA, what court would hear this before the SC, how partisan is that court, and how predictable is their ruling?

[Marie Marie]

1. Just another arrogant Republican law-breaker.

[freeandequalpa]

2. Commonwealth Court

The lawsuit challenging the Photo ID Law was filed in the "original jurisdiction" of Pennsylvania's Commonwealth Court. That means the Commonwealth Court, which is technically an appellate court, is hearing the case in the first instance as a trial court. For a more detailed explanation of why the lawsuit was filed there, read this:
http://freeandequalpa.wordpress.com/2012/05/12/applewhite-summary/

The Commonwealth Court is comprised of 9 elected judges. I believe the current party affiliation is 7 republican and 2 democrats.

Since the Commonwealth Court is serving as a trial court, the case will be assigned to a single judge, so the identity of the judge who gets the case if key. Based on the recent docket entries, it appears that the case was assigned to Robert "Robin" Simpson, a Republican (you can view the docket here: http://ujsportal.pacourts.us/docketsheets/appellate.aspx -- enter 330 MD 2012 in the docket # box, and then click on the icon next to the docket number).

I do not have much information on Judge Simpson, but he did reject a Republican challenge to ACORN registrations in 2008. See here for more details:
http://freeandequalpa.wordpress.com/2012/05/18/judge-simpson/

[drm604]

3. That second link is interesting.

Last edited Mon May 21, 2012, 02:19 AM - Edit history (1)

This may leave the Commonwealth in a position where it has to convince Judge Simpson that the law is necessary to prevent fraudsters from impersonating legitimately registered voters. Given the hurdles a fraudster would have to clear to commit such fraud without being detected (not to mention the minimal payoff — a single vote — that the fraudster would gain in return for taking such a substantial risk), the Commonwealth may have a difficult row to hoe.

Since, as I understand it, the PA constitution explicitly protects the right to vote, it appears that the ACLU has a good shot at convincing Judge Simpson that any reduction in voter fraud would be more than outweighed by the hurdles that the law causes for legitimate voters.

So if Simpson rules against the Commonwealth, and the Commonwealth then decides to appeal, would the PASC be next?

If the Commonwealth ultimately loses in PA, could they continue the fight to the USSC?

However it ultimately goes, will it be settled before November? If not, am I right in assuming that the law will be on hold until it's settled?

[JPZenger]

4. There is an option of appointing a senior judge to bring the Supreme Court up to full size

According to a report on the radio, there is an option of appointing a retired judge as a "senior judge" to temporarily fill in the seat on the State Supreme Court. I don't know who gets to appoint that person, but you can be sure it will be a loyal Republican.

[drm604]

5. Are you sure about that?

I think that can only happen if her seat actually becomes vacant. In that case a judge can be temporarily assigned until one can be elected.

But her seat isn't actually vacant. According to my first link, she's recusing herself from all judicial duties (so she can't vote) but she is not resigning.

[freeandequalpa]

8. Legal Intelligencer Article

This probably doesn't answer your question, but here is an article from the Philly legal paper on the impact of her suspension:
http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202555504212&thepage=1

[drm604]

9. Actually, I think it may answer my question.

Szostak, of Rubin, Glickman, Steinberg & Gifford in Colmar, Pa., said Orie Melvin should resign from the bench so that a temporary replacement can be appointed.

Assuming that Szostak knows what he is talking about, this statement implies that, as long as Orie Melvin doesn't resign, there can be no temporary replacement.

[freeandequalpa]

6. Many variables

There are a lot of variables at play. The Petitioners asked the Court to preliminarily enjoin the Commonwealth from enforcing the law. To prevail, they will need to demonstrate that they are likely to succeed on the merits of their claims. To do that, the parties must take discovery to develop a factual record for use at an evidentiary hearing on the injunction request. The Petitioners asked the Court to permit expedited discovery. If the Court grants that request, the hearing should take place well in advance of November. If the Court denies the request to expedite, all bets are off. A ruling on an injunction request -- whether it grants or denies the injunction -- is immediately appealable. So whoever loses can appeal.

If the injunction is granted, the injunction will enjoin enforcement of the law unless either the Commonwealth Court or the PA Supreme Court stays the injunction pending disposition of the appeal. Even if the injunction is not stayed, it is still theoretically possible that the Supreme Court could decide the appeal before November.

The U.S. Supreme Court has jurisdiction to hear appeals from the state supreme courts in cases that present a substantial federal question. Since the Petitioners are alleging only violations of the PA Constitution and not the U.S. Constitution, there may be no substantial federal question here. But I would have to research this further to be more confident in my answer.

[badhair77]

7. Thanks for your explanations.

And welcome to DU!

[happyslug]

10. The appeal is to the Commonwealth court "en banc"

i.e. the whole court (or just three judges on the Court). Commonwealth Court acts in this type of case first as a Trial Court (generally in front of one judge of the Court) then as its own Court of Appeals. Thus you can go from one judge of the Court to the entire court sitting together, then to the Pa Supreme Court.

Please note the US Supreme Court has no jurisdiction over this case, it is a matter of STATE CONSTITUTIONAL LAW and as such restricted to the State Courts.

[JPZenger]

12. Thanks for your explanations

I guess they can't claim federal jurisdiction because PA. is not under special review under the Federal Civil Rights Act, unlike N. Carolina, etc.

[freeandequalpa]

11. The Court Scheduled a Preliminary Injunction Hearing for July 25

More details here:

http://freeandequalpa.wordpress.com/2012/05/25/hearing-set/