Monday, January 8, 2007, San Diego, CA
A three-judge panel heard oral arguments on the CA50 case today in appellate court.
Sitting on one side of the visitor's gallery were the plaintiffs, Gail Jacobsen and Lillian Ritt, Lillian's husband Don, an eminent physician, Judy H., a local political activist, Linda P., a PR consultant, Brina-Rae S., an election reform activist, and about a half dozen others interested in the case, including myself and kpete from DU.
Sitting on the other side of the gallery was San Diego Registrar of Voters, Mikel Haas.
Each side had two attorneys, and Bilbray's lawyer, David King, argued that once Congress has sworn in a Member, the courts have no further jurisdiction. The attorney for Haas only spoke briefly.
Ken Simpkins and Paul Lehto represented the plaintiffs, and Paul, who is extremely knowledgeable about Constitutional law and passionate about democracy, was brilliant, as he usually is.
Two of the judges, one of whom is known locally as a staunch Republican, tried to divert attention away from the issues by bringing up the distractions of whether or not the request for a recount had been paid for, and whether or not a recount would change the outcome of the election. Paul handled both diversions well, pointing out that the jurisdictional issue is created upon filing the request for a recount, and that the costs cited by the Registrar at the time, eight times what previous recounts had cost, appeared to be a deliberate attempt to prevent a recount, and that the issue was not whether a recount would change the outcome of an election, but whether the court has jurisdiction to order a recount, or whether Congress, by swearing in a member, can nullify an election and take it out of the hands of the voters.
When one judge asked why the losing candidate hadn't contested the election in Congress, Paul said that a candidate has a lot to lose politically if they contest an election, and that if Congress had sworn in the wrong candidate, appealing to them would be like asking the mob to reverse a hit. Paul answered all the judges' questions without letting himself get diverted from the important issue at stake, which is whether the people or Congress can decide elections.
Paul explained clearly that if Congress wants to alter State elections procedures, according to the Constitution they have to do it by enacting a law, and that the swearing in ceremony is not a law and cannot change State elections procedures.
Paul explained that the federal government does not have sovereignty over the States with regard to elections. When this country was formed, the states allowed certain powers to the federal government and retained other powers to the individual States. In the case of elections the State and federal government are sister sovereigns, and because the States have more experience with elections, the feds usually defer to them.
Elections are the manner in which we the people transfer authority from us to our representatives, and the way in which the federal government obtains the consent of the governed. Without this consent, although Paul felt no need to say this aloud because it is totally obvious, a government is neither democratic nor legitimate.
Paul reiterated his earlier arguments, including those made in the brief he and Ken filed with this court, that Congress cannot defeat the will of the voters by simply swearing someone in before all the votes have been counted, and that, if they could do so, there is no clear line as to when they could do so. If they can do it before all the votes have been counted and the election certified, there would be nothing to stop them from doing it before the election even took place. Paul said that if this were true, Congress could simply ignore elections and just swear in their friends, thereby removing jurisdiction from the courts and eliminating the Constitutional right of We the People to elect our legislators.
The court has taken the case under submission and we are awaiting their decision.
It was interesting to see a dramatic example of how a powerful few can attempt to deprive the majority of our rights. The defense seemed totally unaware that this was their purpose in defending the indefensible.
The issue is not, as the defense (and apparently some of the judges) would have it, solely a question of who won and who lost an election. Notwithstanding who won or lost, we the people have the right to know that our State elections procedures were carried out in accordance with law, that any voting machines used were properly certified, and that they functioned properly and did not flip votes from one candidate to another, "lose" thousands of votes, or malfunction in any of the myriad of other ways that have been documented all over the country.
If Congress can determine an election by swearing in a candidate in a close and hotly contested election before all the votes are counted and the election certified, and thereby prevent the courts from ordering a recount or audit, the issue is not whether or not the candidate who is sworn in actually won or not, but whether winning an election has to be decided by We the People voting, and having our votes counted completely and accurately, or whether Congress can decide elections without regard to the will of the people.
The decision in the CA50 case will determine whether we still have any shreds of democracy left, or whether we are now living under corporate tyranny, where corporations, through their financial support, determine the candidates, corporations, through their privatized voting machine systems, determine how and if votes will be counted, and Congressmembers who are deeply beholden to corporations can decide who their colleagues will be without regard to elections at all. This may not seem important to large corporations and the people who represent their interests in Congress, or to elections officials who are closely linked and dependent upon machine vendors, but nothing is more important to voters. If our votes are our only voice in government, we want out votes to count and to be counted, not to be disregarded by a Congress that would prefer to install their hand-picked cronies instead.
Background on the CA50 case can be found at bradblog.com