So much for checks and balances, welcome to absolute power
By Dave Berman 8/30/06
Judge Yuri Hofmann on Tuesday afternoon dismissed the lawsuit brought by San Diego voters contesting the June 6 election of Brian Bilbray to California's 50th Congressional district seat. Bilbray was sworn in to Congress while his election was not yet certified and the vote count was not yet complete. These are but some of the many grounds cited for the election challenge. But no matter how damning the evidence, it would not get its day in court.
The motion to dismiss, filed by defendant Bilbray, claimed the court has no jurisdiction. Indeed, Hofmann cited numerous precedents of courts keeping their distance from a legislative fray. BradBlog has the full decision here. From a 1951 case before the CA Supreme Court, Hofmann quoted:
"Under our form of government the judicial department has no power to revise even the most arbitrary and unfair action of the legislative department, or of either house thereof, taken in pursuance of the power committed exclusively to that department by the constitution..."
Plaintiffs' attorney Paul Lehto issued a lengthy public statement in response to the ruling. It is posted at BradBlog just beneath the Hofmann opinion, and also appears at the end of this post. Lehto circulated additional comments by e-mail. An excerpt:
[O]ur declaration of a (sad) victory by our side to the media today is because we've proven, beyond a reasonable doubt, that the defendants INTENDED to terminate the elections process and knew full well that this would be the effect of their unilateral and premature swearing in of Bilbray only 7 days after the election. The subsequent claim (and this is the most important element) that this sweating [sic] in rendered the court powerless and without jurisdiction because the "exclusive jurisdiction" transferred to the House by the swearing in, means that the certification of the allegedly "final" results by Registrar Haas was clearly void, resuilting [sic] in an invalid and incomplete election legally for Bilbray, the VERY POINT we sued to prove! (because the certification, being post-swearing in, was without force and effect and void, as is the Court's power, since "exclusive jurisdiction" transferred to the House, thus not only was the court rendered without power to affect the election, so was Registrar Haas)
In summary, the intent to terminate the election process prior to its end and even while as many as 12,500 votes remained uncounted shows clear intent to manipulate the elections process. There's a whole new population of people who are so good-hearted that they have a problem understanding that there are many people out there willing to manipulate elections for advantage. We should invite them to see that here in San Diego's fiftieth, the knife of raw power was drawn and used intentionally on June 13th, and given the dramatic nature of the claim of absolute power that followed in briefing to the Court around August 22 and after, it is beyond a doubt true that they fully intended to find an end-around the completion of elections, to find an end-around the US Supreme Court case that held that states have rights to do both counts AND recounts under Art I, sec. 4 of the Constitution, and that end-around termination of democratic elections was that in Roudebush v Hartke the Senate respected the courts, but in the case of Bilbray, the Speaker of the House decided not only that he'd seen enough of the election, but that he'd had it with the courts, too!
So much for checks and balances, welcome to absolute power.
In the simplest of terms, this is a new low for America. Yes, I know, it seems like we've bottomed out thousands of times already in recent years. I have to account for the paradigm shift this news has brought me. Consider, for the past two and a half years I've been writing and saying to all who can read and hear that there is no basis for confidence in the reported results of American elections. In a quote featured on the back cover of my book, We Do Not Consent (free .pdf download), Lehto says the "no basis for confidence...formulation approaches scientific certainty." When votes are counted in secret, the conditions of the election guarantee inconclusive outcomes that will not meet unanimous public acceptance.
Working with this premise, I started looking at what it would take to create a basis for confidence, where none currently exists, and to ensure election results could be conclusively determined. I can't say I pinned that all down to a science. But after 15 months of community meetings, debating, gathering input, making revisions, and lobbying local government, on July 20, 2005 the City Council of Arcata, CA adopted the Voter Confidence Resolution (VCR).
The VCR includes an eight-point election reform platform. I have always been clear that any one of the reforms alone, while welcome, would constitute a false alternative. That means no one election reform can independently create a basis for confidence or ensure conclusive outcomes. What good would it do to have instant runoff voting, for example, if the results will be equally in question with or without it? The same applies for each of the other items in the reform platform.
The dismissal of the CA-50 lawsuit has changed my entire view of how I've framed this work for so long. Election reforms are each an uphill marathon to introduce and ultimately implement. What I realized today is that conclusive election results are no longer a viable indicator of the existence of Democracy. For just like the above example of the false alternative, what good would it do to ensure conclusive outcomes if Congress is still equally entitled to pre-empt any such results in favor of appointing new members at will?
Two other points I've repeated ad nauseum:
Election reform is not the end goal but rather a tactic toward peaceful revolution.
Peaceful revolution is necessary, NOW!
In Blueprint For Peaceful Revolution (.pdf) I define peaceful revolution as a shift in the balance of power between the government and We The People. With credit to Rebecca Solnit's "Hope In The Dark," this definition differentiates between changing figurehead leaders and restoring Consent of the Governed as the only legitimate source of government's "just Power" (see Declaration of Independence). In other words (for example), impeachment, which leaves the failed, corrupted, and exploitative system intact, would not constitute revolution. Without the right to elect representatives to government, We The People have lost a measure of self determination and cannot be considered Free People.
Here too we can compare and easily see impeachment as the false alternative. To imagine shifting the balance of power, think of regaining self determination and reasserting mastery over public servants, both of which I am no longer convinced could occur as the result of changing election conditions to produce conclusive outcomes. The work of the election integrity movement, and attorneys such as Paul Lehto and Lowell Finley, are inherently revolutionary. Embrace it, do not fear it. We are the overwhelming majority greatly in need of increasing the self awareness we have of our group size (92% of Americans).
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A revolution never come with a warning A revolution never send you an omen A revolution just arrive like the morning Ring the alarm we come to wake up the snorin'
