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Representation by the Consent of the Governed?

By       (Page 1 of 5 pages)   6 comments
Message Jody Holder
On Tuesday, August 29 in San Diego County, a Superior Court judge accepted the argument that once a candidate for a Congressional seat has been sworn in, whether or not all the votes have been counted, or the state election laws have been fulfilled, the Congress has EXCLUSIVE jurisdiction from that point on.

This ruling, if left to stand could spell the death knell for the peoples' right to legitimately elect our representatives. It also might explain the rush to electronic voting and some states (i.e. Florida) passing laws to make it illegal to conduct a recount by using the original paper ballots. During the last several years there have been repeated instances where initial reported electronic results have turned out during the official canvass to be grossly wrong. It sometimes takes weeks for the candidates and election officials to determine if something is amiss. If an error is suspected, the candidate or a member of the electorate can request a recount or a contest. Unfortunately those requests cannot be made until AFTER the election results have been certified by the county or by the state.

This ruling means that the party in power can fly-in the candidate who reportedly has the majority of votes (no matter if accurate), swear them in, and the other candidates and electors of the state no longer have any recourse in the courts or by process of law to correct the mistake.

In California we have a required audit that is supposed to check the accuracy of any automated means of tallying votes. That audit is required to be conducted during the Official Canvass which is conducted AFTER all votes have been counted, including provisional and absentee. At the conclusion of the Official Canvass the county submits certified results to the state. Then the state issues a Certification of the Results.
A recount cannot be requested until the county issues their official results.
A contest cannot be requested until the state issues their official results.

In San Diego County, on June 13, just six days after the election;
prior to all the votes being counted;
prior to the required audit to check the accuracy of the electronic voting machines;
prior to the county issuing their official count;
prior to the time in which a recount could be requested;
prior to the certification of the results by the state;
prior to the time in which a contest could even have been filed in court;

Bilbray was sworn into office, thereby nullifying any right of the citizens of San Diego County to determine if he was in fact the winner of the election.

Our form of government was based upon the principle that our Representatives serve by the Consent of the Governed. That consent is obtained through the electoral process. When those willing to abuse their authority to cut that process short, it is an attack upon the very foundation of our form of government.

Because Brian Bilbray was sworn in prematurely, we will never know if he is a Representative that serves by the Consent of the Governed. Their Registrar of Voters, the House of Representatives' leadership, and the court have denied the voters of the 50th Congressional District their Right to Consent.

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

Posted By Emily Levy On 29th August 2006 @ 16:37 In Busby/Bilbray, California | 106 Comments

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 defendants' motion to dismiss the case based on jurisdictional grounds, The BRAD BLOG [1] has learned.

We have covered the defendants' argument, that the swearing in of Bilbray [2] - 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 [3] articles (here [4], here [5], here [6] and here [7].)

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 jurisdictional arguments used to dismiss the case, according to the plaintiffs' attorney, Paul Lehto. Since the California court has no jurisdiction to adjudicate an election contest for a California U.S. House election, according to the court's opinion, it also has no jurisdiction to find against plaintiffs in the "SLAPP back" motion, explained Lehto. is now collecting donations [8] to help defray the cost of an appeal of this ruling.

Extended EXCLUSIVE comments on the judge's ruling today, from attorney Paul Lehto are below, followed by Hofmann's ruling in its entirety...

The following comments come to us from the plaintiffs' attorney, Paul Lehto:

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Jody Holder is a California voting activist.
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