As lead counsel in the election contest in California's 50th Congressional District, I wish to bring to your immediate intention the intent of Congress to terminate elections before the votes are counted and long before certification. It is now proven that the Congress intended this precise result when they swore in Brian Bilbray only 7 days after the June 6 special election, and then subsequently argued that this action deprived everyone but the House of Representatives of all jurisdiction, right or power to do anything about it, nor even to have a recount or investigation of the vote!
First, an extended quote from Bradblog, then more from me.
Busby/Bilbray Contest Defendants Claim Election Decided in DC, Not California!
Plaintiff in Response: 'Defendant's Argument Means Election Is Uncertified, Never Happened'
Guest blogged by Winter Patriot
{...} The CA50 special election was held on June 6, on illegal voting machines as has been described here many times. (link omitted). On June 13, Brian Bilbray was sworn in to House of Representatives. On June 30, the election certified by Registrar of Voters Mikel Haas. And on August 22, defendants filed a brief and moved to dismiss, stating that because Bilbray has already been sworn in, the Court has no jurisdiction whatsoever and the House has exclusive jurisdiction to judge who its members are and the qualifications of those members.
According to attorney Paul Lehto,
START QUOTE "The defendants' position is that the court is powerless (i.e. without jurisdiction) to do anything about this election contest, because Bilbray was sworn in only 7 days after the June 6, and long before the election was legally final on or about June 29.
"This premature termination of the election in the 50th Congressional District by the swearing in took place while votes were literally still being counted and provisional votes were still being counted, and also this premature swearing-in took place well before the 1% ballot audit required as part of the certification process, and also occurred fully 16 days prior to the official certification of the results.
"The defendant's premature swearing-in at the command of Washington DC politicians, if it had any legal effect at all, necessarily means that if there's no power for a Court in San Diego County to protect and review our elections for Congress, there was certainly no power and no jurisdiction for defendant Registrar Haas to certify the results of the election, either.
"The swearing in simply terminated the election in mid-count. Consequently, the defendants' arguments about the court's lack of power also mean that this uncertified election does not legally exist, in the legal sense that the election never happened, and this election never became final because it has never been certified at a time when anybody in San Diego had any power to do anything about it.
"Because no election is decided or over until it's officially certified, this election was actually decided in Washington DC, and not decided in San Diego's 50th Congressional District." END QUOTE
So there you have it. This is the stick with which Paul Lehto is trying to beat a corrupted electoral machine back into shape.
How could this not be interesting? We'll have more details for you soonest.
Paul Lehto practiced law in Washington State for 12 years in business law and consumer fraud, including most recently several years in election law, and is now a clean elections advocate. His forthcoming book is tentatively titled DEFENDING DEMOCRACY. In the past, I co-founded but am no longer an active participant in the San-Diego focused election rights organization Psephos, but I nonetheless recommend their work and reference their site here.
This sounds like very good news for those of us who are convinced that a return to honest elections is essential to preserve democracy in America. Precedent is important in deciding cases. Could a lawyer analyze how important this will be in setting precedent and under what general circumstances it will be of benefit? Wow, that is asking for a lot of free advice from a lawyer. Perhaps someone very knowledgeable about law could just speculate for us.
by
Christie (0 articles, 0 quicklinks, 0 diaries, 143 comments)
on Friday, August 25, 2006 at 6:24:08 PM
Precedent, in state court cases, only created by appellate
cases that end up getting published. Although trial court cases can influence others through reports of success, etc. This case could well end up on appeal, so the precedent you are speaking of could well come into play. Since it is on a fasttrack with #1 priority as an election contest case (by law) the appeal results could come much faster than the slow rate one would usually expect. There are novel issues of the extent of the House of Representatives to change the rules after the election and shut down the certification and recount processes as well as provisional vote counting, simply by execution of a fiat to swear someone in prematurely.
Premature swearing in = premature termination of elections = termination of democracy. It's that simple, and the Representative Bilbray argues that we are all, and the San Diego Superior Court Judge Yuri Hofman is, powerless to do anything about their exercise of power. However, this is a classic "changing of the rules after the election" which is what one side complained about after the election in 2000 (rather successfully). In effect, the defendants want the Court to give the blessing of the judiciary to an Equal Protection Violation whereby CA's 50th Congressional District Voters do NOT get recount rights because of the swearing in within 7 days of the election, while other voters outside the 50th DO get recount rights. Problem is, the "partial recount" or treating voters differently as to recount rights is supposed to be why Gore lost in 2000 (he asked for a partial recount).
The argument of the defendants goes way too far, since it of course means the Registrar of Voters was powerless to certify the election too, the exclusive power being with the House (under their argument). This means the defendants believe the election was invalid, and never certified, once you apply their principles of "exclusivity" broadly, as we must in order to give meaning to the word EXCLUSIVE power.
by
Mark E. Smith (21 articles, 30 quicklinks, 100 diaries, 1325 comments)
on Friday, August 25, 2006 at 8:27:23 PM
The above comment was written by attorney Paul Lehto, however he was using my computer so it looks like I posted it. I'm not a lawyer and I don't know a darned thing about precedent, so I not only didn't write it, I COULDN'T have written it.
I was, however, in court today, and the arguments given by the opposing attorneys were frightening. If I understood them correctly, they're maintaining that Congress has the right to nullify all elections and decide for themselves who they want to become Congressmembers.
Say, for example, that somebody the party controlling Congress happens to like, is running against somebody that they don't like. Imagine that the candidate they favor is lagging badly in the polls, say with only a 20% approval rating to their opponent's 80% approval rating. Then suppose that something similar to that Republican primary election occurs, where the voting machines flipped the votes so that the frontrunners appeared to be losing badly. In that case the election official stopped the machine tally, ordered a handcount, and it proved that the two frontrunners had actually won, despite the voting machine error saying that they had lost.
But now, if such a thing happens again, Congress can simply take the candidate they favor, swear them in, and, according to the opposing attorneys in this case, thereby prevent a recount, deprive any state court of jurisdiction, and ensure that nobody would ever know who really won the election.
THAT is frightening. Fortunately, from what I heard in court, I believe that Paul Lehto made it crystal clear to the judge that this sort of power play violates the rights of voters. Now all we can do is hope that the court has jurisdiction and that the judge agrees that it is the voters who should decide who represents them, not Congress.
by
Mark E. Smith (21 articles, 30 quicklinks, 100 diaries, 1325 comments)
on Friday, August 25, 2006 at 11:31:36 PM
It might be useful to remember the state of play in 2000 when Scalia et al hijacked the ball and declared a winner.
Had things gone for Gore at any stage of the recount, there was open talk of the Republican gerrymandered Florida State Legislature simply certifying the Republican Electoral college as the Florida Delegation.
That this would have created a new round of worms is a given, but the dictatorship would have been declared even if Gore had won in any other scenereo as well, it just would have been variably more obvious. There were (mostly disparaged) hints of that even before the election.
Soon we will arrive at the pointy end of the problem, the cloaks of honesty and even competency are in such shreds not even the best propaganda can stitch them togeather (though not for lack of trying). Some folk will have to be winning the vote even while polling at 40%, or else the entire house of cards falls, and legitimacy will also fall in shreads as the ephemera it always was. I don't expect quiet acceptance of electoral defeat.
When those gloves fall off, the fight will be in the open, but that also means that the fight will be very much nastier than what we have seen sofar.
by
Freedem (0 articles, 0 quicklinks, 0 diaries, 16 comments)
on Saturday, August 26, 2006 at 9:11:21 AM
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