Defendants are in effect arguing for the remarkable proposition that unilateral self-serving actions by a majority party in the House of Representatives to shuttle in a member of the same party can be effective, even if those actions do violence to and amount to circumvention of other sections of the US Constitution as well as the California constitution. Document available here.

Lehto is one of the two attorneys representing citizens who are challenging the election. Shortly after the last vote was cast, citizens discovered disturbing facts. Prior to Election Day, several poll workers had taken home voting machines for periods of a day to a week at a time without supervision or even consistent tracking procedures. Other irregularities like vote switching on touch screen machines emerged. Brad Friedman of www.BradBlog.com conducted an extensive investigation that uncovered a series of sloppy procedures by County Registrar Haas.

The election became an immediate cause for citizens, supporters of the losing candidate, and national voting rights activists. The results were also challenged by Howard Dean, Chairman of the Democratic National Committee.

A suit was filed by two local citizens challenging the election. The initial filing relied on the right of citizens to know that their votes are and counted correctly in order to assure that the candidate designated as the winner is in fact the winner. Part of the suit is a request, denied to date, for a recount of the ballots cast on Election Day.

In response to the suit, the County of San Diego filed a response questioning the authority of the local court to decide the case since (a) membership in the house was the province of the House of Representatives and ( b ) the speaker had already sworn in Bilbray.

Lehto and Simpkins filed a withering response to this argument. They point out that elections are the province of local and state authorities for all elections including federal contests, unless otherwise specified in the constitution. The following is form the filing yesterday:

Clearly, the swift swearing in did not end the election in the 50th Congressional District, and it did not render everything, including the certification of results weeks later, nugatory and without "jurisdiction." If this swearing in had this effect, then in the course of dismissing this case the Court would be bound to conclude that the certification of the results after the swearing in of Bilbray was without force and effect, without jurisdiction, and in contravention of principles of federalism, as Defendants argue. That conclusion, however, requires either an absurdity, or the conclusion that our Congressional election was canceled by decision of the Speaker of the House, before all the votes were fully counted, and well before certification. Document available here.

Scary stuff Max, this is why my optimism for a Democratic landslide in Nov is tempered. Many of the races we hope to win will be close ones, and with the vote flipping alleged in San Diego by the same machines in place across the country, I don't think we'll win the close ones.

What is this about? "There were immediate cries of foul following the election due to major irregularities, including electronic voting machines sent out to the homes and cars of volunteers for up to 12 days prior to the election, and irregular election results like huge mega-precincts of absentee ballots where turnout was thousands of percent more than registered voters." Voting machines sent out to the homes and cars of volunteers? Isn't there some kind of a chain of custody requirement for voting machines in California? There should be.

Personally, I would not put it past Hastert to swear in Bilbray before the election was certified, knowing full well he would disrupt the ability of the plaintiff to seek redress. I can't stand Hastert and wouldn't trust him any further than I could throw him (although I'd like to see how far I could).

Indeed, this is dangerous territory, surely, we can design a better system for casting and tabulating ballots. We can't keep going on like this, with the voting process losing credibility with each election cycle.

Maybe we should just go back to the old fashioned method of having a bipartisan committee count the damn things by hand.

Recall's Malcolm X's remarks about ballots and bullets.

Oath of Office--Fiftieth Congressional District of California: Representative-elect Brian P. Bilbray presented himself in the well of the House and was administered the Oath of Office by the Speaker. Earlier the Clerk of the House transmitted a facsimile copy of the unofficial returns of the Special Election held on June 6, 2006 from Ms. Susan Lapsley, Assistant Secretary of State for Elections, California Secretary of State Office, indicating that the Honorable Brian P. Bilbray was elected Representative in Congress for the Fiftieth Congressional District of California.
Here (statement only) or here (full record)

Bilbray, it would now seem, was not sworn in without forethought, as though there were no issues involved. Somehow, the Clerk of the U.S. House of Representatives received notification from Republican Bruce McPherson's Assistant Secretary that Bilbray "was elected Representative in Congress."

This may come as news to the legal team fighting the recount in San Diego Superior Court. They have asserted that the recount is irrelevant because Federal authority supersedes state authority as a result of the June 13th swearing in of Bilbray. This logic was confirmed in a letter to San Diego Superior Court by Paul Vonivich , counsel for the House Committee on Administration. In that letter, he acknowledges the sequence of events and asserts that the swearing in makes moot any recount based on superior federal authority in congressional elections.

Now we find out that that swearing in was based on the confirmation provided by a state government official. This strongly implies that the Congress actually recognized state authority to determine that the election outcome was official.

A careful look at the statement in the Congressional Digest reveals some interesting assumptions and perhaps careful planning. The Speaker, Hastert, administered the oath based on word from California's Assistant Secretary of State for Elections that Bilbray "was elected Representative in Congress." Several assumptions are embedded in this statement. First, Hastert knew that he needed an authority to justify the election as official. Second, he relied on state authority, Susan Lapsley specifically. Third, Hastert knew that there were only "unofficial results," because those are clearly referenced yet he accepted the word of the Clerk that Lapsley had made the call that Bilbray "was elected Representative in Congress." Finally, Lapsley, who has no official status in San Diego County where the election was held, used "unofficial results" to convey to the court that Bilbray was elected.

The "Scoop" August 25th article generated significant public outcry. There is now a campaign to challenge Speaker Hastert's role in the San Diego election. This web page provides a rationale based on the premature swearing in and a recent Zogby Poll that showed 92% of Americans insist on the right view election results and raise questions. The site, Say No To Another Election Theft Before Fall Midterms: Recall House Speaker Hastert For Interfering With Local Elections, went up today and is reportedly receiving significant activity. The site quoted the initial "Scoop" article, noted the disregard for procedure and law, and linked the struggle against election fraud in the United States with protests in Mexico, the, site of a highly questionable presidential election.

Conundrum
According to the official record of the U.S. House of Representatives, we had a Speaker of the House swearing in a new Member of Congress from San Diego based on the word of an Assistant Secretary of State in Sacramento. That state of California official reportedly verified the San Diego election as official in a communication to which the "unofficial results" were attached.

At the same time, we have a legal team representing the Registrar of San Diego County challenging a suit by citizens which seeks to open up the election records and perform a recount. The San Diego Registrar is refusing to conduct a recount based on the supremacy of federal authority, namely the House's prerogative to swear in new members. The Registrar argues that the June 13 swearing shows federal supremacy.

Now, from the actual record of the swearing in, we discover that the Speaker and Congress actually relied on a politically appointed California state official whose authority was used to determine that the election results were official. That state official has no authority for elections in San Diego County.

The only consistent thread that runs through the entire affair, the swearing in of a candidate before an electron controversy was settled, is that each and every point in the decision making process, the decisions are dominated by Republicans or officials under the control of Republicans. The process is not flawed because of this particular partisan label, it's flawed because it violates the expectations of a free people to have their elections taken seriously by those it elects, regardless of their party.
Copyright: This article may be used in whole or in part with attribution to the author and a link to "Scoop" Independent Media.

http://www.rawstory.com/news/2006/Hearing_...gress_0828.html

Court told votes don't have to be counted, certified

Miriam Raftery
Published: Monday August 28, 2006

San Diego, CA -- A motion to dismiss a congressional election challenge in California took on national implications last week when defense attorneys argued that no court has jurisdiction to intervene in an election after Congress has sworn in a member, RAW STORY has learned.

Superior Court Judge Yuri Hofmann heard arguments Friday on a motion to dismiss the election challenge lawsuit filed by voters seeking a full hand recount in California's 50th Congressional district.

Paul Lehto, a nationally prominent election law attorney representing two voters who filed the suit, called the motion an "invitation to the Court to ratify a seizure of power" that amounts to "invading the sovereignty of a state."

Republican Brian Bilbray was sworn into Congress just seven days after a special election against Democrat Francine Busby – before all ballots were counted and a full 16 days before the election was certified. On Friday, attorneys David King and Jim Chapin (representing Bilbray and San Diego Registrar of Voters Mikel Haas) argued that a lawsuit brought by two voters should be dismissed because only Congress has the power to seat or unseat its members. (See previous RAW STORY coverage of this case.)

Defense attorneys cited Article 1, section 5 of the U.S. Constitution, which states that each House is responsible for the elections of its own members. Defense lawyers also noted that on June 13th, House members seated Bilbray by unanimous consent, and that Busby could have filed her own challenge in the House.

Lehto countered that defendants were making a "power play" and noted that swearing Bilbray in as a member of Congress may constitute a record for speed. Normally, swearing in occurs 30-45 days after an election – and after certification by local election officials.

The motion could determine whether the premature swearing in of a member is constitutional.

"The specific intent of Congress on June 13 was to deprive this Court of jurisdiction," Lehto testified. "If they can do that, they can do anything."

Lehto urged Judge Hofmann to uphold the Constitution as a whole, including provisions which state that the federal government is a government of limited power and that governments receive power from consent of the governed. He further noted that Article 1, section 5 of the Constitution does not prevent recounts and cited state election codes granting the State the power to regulate the time, place and manner of elections. "The State can control the count of votes and the recount of votes," he added.

Lehto agreed that the core responsibility lies with the House to remove a member of Congress. But he added that the Court has the power to determine if election fraud occurred, and to present any such evidence to Congress. Should Congress fail to act, Congress could suffer political consequences, he observed.

"We have a pattern of evidence to hide the truth in elections," Lehto argued, adding that it "rises to the level of…aiding and abetting fraud." He cited evidence of voting machine "sleepovers" which gave "ample opportunity" for just one person to alter the entire election through electronic hacking. He further noted that Haas and Diebold "counted ballots in secrecy." Lehto added, "We have been prevented and blindfolded from being able to determine if fraud occurred" and suggested that could be "grounds for a new election."

Defense attorneys stated that they were "disturbed by allegations of fraud" and noted that the voters filing a challenge had failed to pay for a recount.

Lehto countered that plaintiffs filed an affidavit requesting a recount within five days after certification, as required by law, but that the Registrar demanded prohibitively high fees for the recount that were many times higher than fees charged in a neighboring county.

Noting that the ballot had numerous state and local races as well as initiatives, defense attorneys questioned why only the Busby-Bilbray race had been singled out for scrutiny if voting machine accuracy was in question.

Lehto responded that substantial issues specific to the Congressional race warranted the recount. Among those:

* Some polls showed Busby up 7% just before the election

* The outcome was close (Bilbray 49.57% , Busby 45.02% according to the Registrar's certified result)

* Some absentee ballots were lumped into mega-precincts that listed total ballot numbers that were "thousands of percentages" above the total number of voters

* The Congressional race was the most important on the ballot, in the opinion of the voters who filed suit

Lehto cited the U.S. Supreme Court case that awarded the 2000 presidential election to George W. Bush. In that case, the high court held that officials cannot "make up rules after an election" and halted a recount because Gore had only requested recounts in some districts.

The House of Representatives' effort to seat Bilbray before certification amounted to a "fiat" that violates equal protection guaranteed by the U.S. Constitution, Lehto argued. "California voters are being treated differently than voters in other areas," he noted, adding, "This is precisely the kind of equal protection argument that Bush v. Gore upheld."

Defendants have now filed an anti-SLAPP lawsuit against voters Lillian Ritt and Barbara Gail Jacobson, asking the court to order voters to pay legal fees in the case.

Ritt has previously won an election challenge lawsuit that she filed against the Rancho Santa Fe Homeowners Association, which was accused of burning ballots. That suit resulted in changes to the Association's election procedures, recalled Ritt, who expressed outrage at the SLAPP suit filed in the CA-50 case.

"A SLAPP motion was put in place to stop developers from suing people who went around and talked about them," she told RAW STORY in an interview at the courthouse Friday. "It was to protect citizens. Now it's being used against them."

Lehto viewed the tactic as an effort to intimidate his clients. "They do a power grab, terminate the election, and anyone who does challenge it, they hit them with a SLAPP lawsuit," he told RAW STORY.

Judy Hess, coordinator of the CA-50 election integrity group, offered an eyewitness account of the courtroom proceedings. "Paul's argument was so eloquent that I found myself on the verge of mistiness at one point. My words tell you much of the argument— but I can't do the presentation justice. He has set up the classic tensions, though, between different parts of the Constitution, and also the tensions between Federal and States' rights….I knew I was watching a little slice of history…"

A decision on the jurisdictional issue is expected on Tuesday, August 29. Updates on the case may be found at NoSleepovers (a site set up by CA-50, which is seeking donations to help cover the costs of filing the challenge) and at BradBlog.

"Checks and balances and judicial review are what this case is all about--not blindfolding our eyes and withholding the truth," Lehto concluded. "The public interest and integrity of our elections…and of the entire country are implicated here."

So, we should hear something today then. Please post as soon as you get something, this is an intriguing case to say the least, with possibly dire consequences.

I see this kind of crap and it pisses me off to no fooking end. Its one thing to cry foul in an election. It happens all the time but to have the Government go against the vote of the people just to "get their man" nullifies anyones belief that we are a democracy. God I hate the implication.

Yes, indeed. More of a Republic than a Democracy. And people wonder why "E pluribus unum" was ever removed. LOL

A country feels safe thinking that the people in Office are their representatives, when in fact, fewer are "OF the Many comes One" that was freely elected By the people so that the sole representative worked For the people.

In Rome, the Republic were elites that elected themselves to represent the interests of the State. And the State at the time was not the people but all of Rome. And when America begins to elect elites to be representatives of the people, chosen by other elites to do the bidding of the State, it no longer is a Democratic society that we live in but rather a New Roman Era. Pax Romana, meet Pax-Americana.

And the Emperor's goals are just the same. Control the people and you control the resources that flow back to Rome. Control the people any brutal way fashionable at the time. And for the loyal citizens back in Rome, their prize is their safety, security, and liberty.

http://www.bradblog.com/?p=3353



DEMOCRACY DENIED: SAN DIEGO JUDGE DISMISSES BUSBY/BILBRAY ELECTION CONTEST ON JURISDICTIONAL GROUNDS!

Finds Rushed Swearing in of Presumed Winner Bilbray by U.S. House — Just 7 Days After Election and 16 Days Before Certification — Transferred Power to Decide Election Outcome to Congress

California Voters, Courts Left Powerless to Challenge Illegally Administered Election According to Ruling




…DEVELOPING…

A judge in the San Diego challenge to the Francine Busby/Brian Bilbray U.S. House Special Election in California's 50th Congressional District has found in favor of the defendents motion to dismiss the case based on jurisdictional grounds, The BRAD BLOG has learned.

We have covered the defendants argument — that the swearing in of Bilbray just seven days after the election and a full 16 days prior to certification by San Diego County — effectively transferred power to decide any election challenges from the California courts to the U.S. House of Representatives. Those arguments are discussed in detail in several previous BRAD BLOG articles (here, here, here and here.)

We will have extended comments from Lehto here shortly…

The defendants attempts to force plaintiffs to cover the cost of attorneys fees (a so-called "SLAPP back" motion) was denied by Judge Yuri Hofmann based on the same jurisdicational arguments used to dismiss the case, according to the plaintiff's attorney, Paul Lehto. Since the California court has no jurisdication to adjudicate an election contest for a California U.S. House election, it also has no jurisidiction to find against plaintiffs in the "SLAPP back" motion, says Lehto.

VelvetRevolution.us is now collecting donations to help defray the cost of an appeal of this ruling.

Hofmann's tentative ruling, which is now the final ruling as of this afternoon, is posted in full below…

— Click here for REST OF STORY!… —

SON....of a bitch.....I don't care what side you support, this is a slap to the face of voters EVERYWHERE. Judicial override or Congressional override of the will of the majorioty of voters is a crime. You can't put lipstick and pearls on that pig.

You can smear lipstick on a pig, and hang expensive pearls around it's neck, but it's still a pig!

So this is the latest twist huh? Wonder if we'll see this en-masse after the midterms? What a fucking mess.

http://www.scoop.co.nz/stories/HL0608/S00372.htm

Democracy Denied: Meet the New Boss
Thursday, 31 August 2006, 10:28 am
Opinion: Michael Collins





San Diego Superior Court Judge Yuri Hofmann rendered his decision in the election challenge in California's 50th Congressional District. He dismissed the request for a recount and for discovery of the facts of the Busby-Bilbray election stating specifically that "Once the House asserts exclusive jurisdiction and selects a candidate, the court no longer has jurisdiction" (emphasis added). The judge argued that the June 13 swearing in alone was sufficient to establish Bilbray's "election." The event had the power to take away any and all citizen rights and immediately rescind authority over their own elections.

Requests for a recount resulting from major problems with the election were deemed insufficient and the rights of voters to due process were cast aside in deference to Speaker Hastert or any future Speaker. The induction of Republican Bilbray was just seven days after the election and a full 17 days before the election was officially certified by the San Diego Registrar.

The plaintiffs lost their suit for an election contest and recount in this one congressional district. However, by bringing suit, they achieved an outcome that clearly proves the arguments expressed across the political spectrum from conservative legal scholar Bruce Fein to former Vice President Al Gore. In unambiguous terms, they and others decry the rapid descent of the United States into a state of tyranny which only affirms our long nightmare for democracy. Politicians can now manipulate, alter, and nullify elections if those politicians are the Speaker of the House or capable of influencing the Speaker. Arbitrary, centralized rule starts with the control of vote counting. It is now clear who controls vote counting and it is not the citizens of the United States of America. The People's House is now the Speaker's House.

Speaker Dennis Hastert swore in Republican Brian Bilbray even though there were requests for a recount and numerous public protests about the legitimacy of the outcome. According to the San Diego Registrar of Voters, as of June 15th, there were in fact still 2,500 votes to be counted. Evidence reportedly captured from the Registrar's internet site indicates that on June 13, induction day, there were 12,500 votes uncounted. The San Diego Registrar did not officially certify this election until June 30th. Even when the election was certified, nearly 50% of the votes had not been assigned to the appropriate precincts.

The information on uncounted and misallocated ballots was followed by the discovery that the California Secretary of State's office, headed by Republican Bruce McPherson, allegedly provided confirmation that Bilbray had in fact been "elected."

Chamber Action (Digest) U.S. House of Representatives: Page H3798
Oath of Office--Fiftieth Congressional District of California: Representative-elect Brian P. Bilbray presented himself in the well of the House and was administered the Oath of Office by the Speaker. Earlier the Clerk of the House transmitted a facsimile copy of the unofficial returns of the Special Election held on June 6, 2006 from Ms. Susan Lapsley, Assistant Secretary of State for Elections, California Secretary of State Office, indicating that the Honorable Brian P. Bilbray was elected Representative in Congress for the Fiftieth Congressional District of California. (June 13, 2006)

If this official did in fact provide such confirmation, a key question must be answered. On what basis was an official stamp of approval given to the election by McPherson's office since results were not made official until June 30? Does the California Secretary of State now have the ultimate power to deem elections final, regardless of the status of those elections? To be more precise, does the Secretary of State now have the power to override citizen protests, challenges and strongly expressed concerns for purely partisan benefit? McPherson is a Republican appointed to this office by the current Governor of California.

The special election generated immediate controversy when it was discovered that election officials had taken home voting machines for overnight stays. The supposed rationale or pretense for these maneuverings was to expedite the convenient delivery of the machines to precincts on election day.

Citizens were furious for a number of reasons. To begin with, these machines have documented security problems which render them vulnerable to hacking and thereby enable the possibility that "malicious code" can be introduced to alter vote counting. In addition, the voting machines were not supervised in the homes nor were they clearly signed in and out. Remarkably, some voting machines even failed to make it from poll worker homes to the precincts on election day.

This obvious breach of security rendered the election void, it was argued. In addition, plaintiffs pointed out that the vote counting was done in secret since the computerized vote tabulation is not open to serious inspection by citizens or even election officials. The innermost workings are controlled by computer code that by agreement cannot be reviewed by election officials or citizens. Thus, the ability to view vote counting was in no way available. This is a right preferred by 92% of voters according to a new Zogby Survey.

Yesterday, attorney Lehto took an optimistic stance when he commented on the role of the public in taking back control of their elections.

The shutdown of any possibility of a court based investigation of the CA50 race could not be in more stark contrast to the 92% support for election transparency in the Zogby poll. The contrast between the two sides now could not be clearer. The question of the moment is whether and to what extent the 92% can discover its own supermajority status, or to what extent they continue to be deceived, deluded and distracted by illusions of their own powerlessness.

By dismissing this case, the judge leaves a legacy which sets a precedent for the surrender of responsibility for free, fair, and clean elections at the state and local levels by deferring to the arbitrary decisions of any Speaker of the House of Representatives. Using the judge's logic, even cases of verified miscounts or election fraud would have no weight once the Speaker invokes his or her customary power of induction.

Tuesday, August 29, 2006 marks the day when every county in Californian lost the certain ability to monitor and manage elections. That function has been out-sourced to Washington, DC. It provides an unfortunate example for the rest of the country regarding the true conduct of elections and election law.


N.B. Court Decision and Attorney Paul Lehto comments on the decision ,
Collection of Filings and Documents on CA 50th District Challenge