Judge Throws Out CA-50 Case on Constitutional/Jurisdictional Grounds!

[emlev]

A bit about this on BradBlog. More coming from both Brad and Paul Lehto (Land Shark).

Link to what's up now:
http://www.bradblog.com/?p=3353

Link to what'll be up next:
http://www.bradblog.com

Paul will be on the Peter B. Collins show at about 5:10 p.m. (fifteen minutes from now). Stream online at www.krxa540.com. Will be archived at www.whiterosesociety.org (or is it .com?--I'm rushing).

[pepperbear]

1. DAMN IT!!!!!!!!!!!!!

:headbang: :headbang:

[rumpel]

2. DAMN!

I need a drink...

for one victory:

The defendants attempts to force plaintiffs to cover their attorneys fees (a so-called "SLAPP back" motion) was denied by the judge 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.

[diva77]

5. what is SLAPP? thank you

:dunce:

[OnTheOtherHand]

7. Strategic Lawsuit Against Public Participation

Famously referring to corporations suing the hell out of people who try to organize against their environmental (or other) depredations.

What we had here was an anti-SLAPP suit, although I never did figure out the rationale -- something to do with the Contestants trying to infringe on Bilbray's right of free speech? (California instituted anti-SLAPP provisions to protect the free speech of people organizing against corporate depredations.)

[diva77]

18. thx for explanation!

[Patsy Stone]

3. That's a horrific outcome

Was this expected? Is this a part of the process to kick it to a higher court, like in B v. G? Damn! I'll be interested to hear and read what Paul has to say.

This sucks.

[PATRICK]

4. Not being a lawyer

it makes even so for interesting reading. They make arguments, some questionable, a few circular, in their preparation to make the case basically on the grounds of jurisdiction. My favorite is the one about the "absurdity" of compelling a recount because of the SIZE of the city. So much for the wonder machines and incredible cost imposed on drudgery counting. The undercurrent here is opposed to any accountability on purely convenience grounds. No wonder abdicating the entire issue by punting to legislative jurisdiction(now they not only write lousy law they get to adjudicate all they do?) becomes so easy.

The points were that the case was weak and those points were valid but they had to go farther because of the challenge, so far that it begins to enter SCOTUS2000 territory of removing the entire idea of justice in favor of a privileged decision in which counting the votes THREATENS the order the court purports to defend. In short, the reasoning begins to be offensive and ends up shafting the voters two ways to Nuremberg. certifying the vote becomes inconsequential, the possibility of reaching a burden of evidence is itself discouraged, and democracy has to be placed second to following their interpretation of doing their job. Not wanting to be questioned again they couldn't leave it with the burden of insufficient evidence of who told who about the certification. By trying to crush a dilemma they crushed justice and didn't have the guts to even advise the public that legislative power in elections needs its own restraints.

Prejudicial against voting and democracy per se and falls into the atavist federalism of elitist controlled elections posited by RW shills during the recount(on TV and radio), namely that fabulous canard about the "representative" democracy and that at some stage or all stages the elite choose their own.

Count on the GOp to make use of this ruling and find ways to prevent the dems from doing so while the Dem pols are likely going to let the weapon slide into the GOP holster and simply tremble at it.

[acmejack]

9. Just another death knell for democracy.

It is increasing looking as if our participation is less important. This really depresses the hell out of me, no relief in the courts, no fairness even in the mechanics of the elections, no fairness in the counting of the ballots, do we have a single thing on our side?

[cascadiance]

11. I think we need to make Halloween a "V for Vendetta" event!

I think that may be the only way to stop this drive towards fascism!

[slackmaster]

26. With reservations I have to say I don't agree the sky is falling

If the plaintiffs had paid the first installment of the estimated recount fee on time they could have had the recount they requested. The price quoted by the RoV, $130,000 IIRC was outrageous for sure, but that could have been challenged later.

BTW - Under California law if you request a manual recount and it turns out the jurisdiction's initial count was wrong, you don't have to pay for the recount. The county would have absorbed it. Registrars charge high fees as a safety mechanism to discourage frivolous recount petitions. If it was free or cheap than every single election result would be challenged by people who supported the loser.

I live in CA-50 and believe the probability that Bilbray was not the actual winner of the general election is vanishingly small, that the count was close enough to accurate and that he would have prevailed in a recount. I have been voting in San Diego for over 30 years now and have never personally had a problem with registration, ballots, precinct procedures, etc. or had any reason to believe my vote was not counted.

It was wrong for the House to swear him in before the election was certified, but frankly I don't see any lasting harm coming from it. I don't believe the plaintiffs chose their battle well in this case.

[GuvWurld]

31. "close enough to accurate"

on what basis do you claim to know *anything* as fact about the vote count?

[slackmaster]

62. How do we ever know anything about any vote count?

How do YOU know for sure that Bill Clinton was elected President in 1992?



Did you personally count the votes?

Did ANYONE personally count all the votes?

On what basis do you claim to know *anything* as fact about the vote count?

I don't know where you live, but in California it's very rare for votes to be hand-counted. That happens only in a recount.

We have deligated the task of counting to machines, and the people who run them. The certified result shows a spread between Busby and Bilbray that is far greater than the worst reported error rates I've seen for the machines.

[GuvWurld]

68. Transparency vs. Secrecy

I'm in CA too. And for the longest time I've said that under current election conditions there is no basis for confidence in the results reported from American elections. Notice that Lehto used this term in his response to the dismissal ruling (and at many other times).

So to answer your question, I don't know that Clinton was properly elected nor have I made that claim. Your reference to the certified results in Bilbray's "election" is non-sensical in that you compare them to error rates. But what you use for the comparison has no basis in reality and for all intents and purposes has been invented out of thin air - we will never know. The secrecy of the process and the judge's frustration of the voters' quest for transparency, by definition, mean that neither you nor I nor anyone else can know anything as fact about this vote count. I'm not going to argue that further as Lehto himself will tell you that is scientific fact. I'm only making this point to put your original post into its proper ridiculous context.

[slackmaster]

71. The plaintiffs screwed themselves out of the recount

It wasn't the judge's doing.

[GuvWurld]

77. It is fair to question...

It is fair to question whether the plaintiffs could have used a more effective strategy, provided you clearly address the question "what would be better?" However, even in doing so, you are conflating issues. The secrecy means that even before Hastert intervened we were dealing with an "election" rather than a fair and honest election. There is no way around that and it is not the fault of the plaintiffs.

[BradBlog]

79. The registrar illegally DENIED the hand count

It was the Registrar's doing. Then again, that only matters if you care about the rule of law. Clearly, you don't.

Keep up the bad work!

[galloglas]

69. Quop Warranto, slackmaster ??

"We have deligated (sic) the task of counting to machines, and the people who run them."

Upon what legal authority could you (or any else) delegate the counting of my votes to a commercial third party vendor?

My right to vote, to have it be counted (accurately), are guarantees given to me by the Constitution. How can you propose to Constitutionally take that from me?

Or to make my use of my voting franchise a "faith-based" exercise wherein I must "trust" an incorporeal "citizen" (Diebold, ES&S, etc.) to create and count my vote, and those of my fellows?

Further, as you claimed this week, how is it that a precious public right can be corporately corrupted so greatly that the public's right to use their own five senses to enumerate and validate that vote is subjugated to corporate "intellectual rights"?

For instance, if during the next Miss America pageant, Hulk Hogan walks out in a tutu and is announced to be the winner, am I to believe that? On what basis, faith in the Ghost of Bert Parks? The credibility of our voting system should rest upon more than some flack master coming out and saying "This is the winner!" Any system which pretends to deliver us our Constitutional Rights, but denies us the ability to audit the results of that delivery, is knavery!

Accepting any system wherein transparency of process and results are lacking, where an ultimate consensus agreement upon the question of "who was elected" is impossible, is simply foolhardy. To buy into that concept would be, as the saying goes, tantamount to buying a pig in a poke.

You seem to quite comfortable with a system that can be gamed. I am not. At what point, and under what conditions, do you feel that the citizenry has the right, or obligation, to determine if the voting vendors are selling our governments mechanisms for participatory democracy or simply the means to an ongoing series of purloined political positions?

[slackmaster]

72. Where does the law say it can't be delegated to a commercial vendor?

Under our legal system generally anything that is not prohibited is allowed.

My right to vote, to have it be counted (accurately), are guarantees given to me by the Constitution. How can you propose to Constitutionally take that from me?

Straw Man.

For instance, if during the next Miss America pageant, Hulk Hogan walks out in a tutu and is announced to be the winner, am I to believe that?

Red Herring.

The credibility of our voting system should rest upon more than some flack master coming out and saying "This is the winner!" Any system which pretends to deliver us our Constitutional Rights, but denies us the ability to audit the results of that delivery, is knavery!

The state's Election Code specifies a procedure by which any voter can request a recount. Use of a third party or any particular type of voting equipment, as long as there is a paper trail as there was in this election, doesn't invalidate the recount provision.

You seem to quite comfortable with a system that can be gamed.

Any system can be gamed, just look at what happened in Mexico this year. I think the key difference between your POV and mine is that I don't believe our system in California can be gamed in an undetectable manner.

At what point, and under what conditions, do you feel that the citizenry has the right, or obligation, to determine if the voting vendors are selling our governments mechanisms for participatory democracy or simply the means to an ongoing series of purloined political positions?

I think any time there is a serious doubt about the outcome of a particular election someone, like maybe the apparent loser, should step up and demand a manual recount. That didn't happen in this election. Are you saying Francine Busby isn't worthy of being our champion? And if the plaintiffs in this case honestly believed the result was incorrect, why didn't they follow through with their recount request?

[BradBlog]

80. Since when do you care about the law?

The state's Election Code specifies a procedure by which any voter can request a recount.

It also specifies a procedure that must be followed by the Registrar of Voters in such a recount request. That procedure was not followed. Thus, a lawsuit was filed.

Use of a third party or any particular type of voting equipment, as long as there is a paper trail as there was in this election, doesn't invalidate the recount provision.

That's right. Mikel Haas' mis-adminstration of both the recount and the election invalidated both.

I think the key difference between your POV and mine is that I don't believe our system in California can be gamed in an undetectable manner.

Then you would be in clear disagreement with CA Sec. of State Bruce McPherson's own team of computer scientists and security experts on his Voting Systems Scientific Advisory Board. Give my best to the the boys at Diebold, Slacker. You're earning your day's pay!

I think any time there is a serious doubt about the outcome of a particular election someone, like maybe the apparent loser, should step up and demand a manual recount. That didn't happen in this election. Are you saying Francine Busby isn't worthy of being our champion?

Straw man.

And if the plaintiffs in this case honestly believed the result was incorrect, why didn't they follow through with their recount request?

Red herring. And untrue.

As you know, of course, such a count (aside from being illegally administered by Haas) would have had no bearing anyway, since apparently Californian's have no jurisdiction to hold such a count. Of course, that didn't stop Haas from attempting to illegally charge the legal hand count requesters $150,000 in violation of state law.

[slackmaster]

93. Ooh, a personal attack by BradBlog!

My day has been made. Now I have a better understanding of BradBlog's mentality. He's energized, driven, but unable to maintain a civil conversation.

I don't believe BradBlog is the type of person I want representing my interests.

[robinlynne]

105. I am quite grateful to have Brad representing my interests any day!

[galloglas]

106. Delegation to commercial vendors ?? Where

Smacklaster states:

"Under our legal system generally anything that is not prohibited is allowed."

Generally is such a useful adverb when weasel-wording, don't you think? Without that qualifier, one can think of so many ways to do good things for America, while doing well for oneself.

Just thinking of one example set one's head spinning.

Like, let's outsource the War on Iraq/n to Blackwater!

Their personnel are paid tons more than our G.I.'s and Blackwater wounded would not take up valuable VA rooms and meds;

Blackwater mercenaries only submit to corporate control, so no public or Congressional meddling. And corporations can say "no comment" and get away with it. That way Americans wouldn't have embarrassments like Abu Ghraib or G.I.'s so battle-worn they lose it and go Starkey on some rural Arab village.

With soldiers one has messy financial obligations, too. Like the G.I. Bill, pensions, disability pay, etc. With Blackwater, the U.S. would only need short term killing contracts. Maybe some production bonuses. Y'know, "Double your kills and pay off your bills. Ask for details at headquarters!"

Damn, snackhammer, the possibilities are endless, no? But..., maybe it is prevented by law? Well, whatever.

Too bad because using Diebo..., uh..., Blackwater would save the U.S. having to do it. Right? Wonder what a thing like that would cost?
Doesn't matter, I reckon. You know private business always does stuff better, cheaper and faster than government can! Am I right?

So, let's get Gonzalez to check that law again... it's just a goddamned piece of paper, huh?... maybe we can use Blackwater, at least until they pass a law against it.

But. If you're right about your, or anyone else's, right to swindle my Constitutionally-given right to vote, simply because your "new kind of theft" has not yet had laws written against it, someone had better hop right on that!

Hell, if vote and election theft are legal, accepting your tortuous sophistry, do you know how much some politician would pay for that!?


And one other thing about permitting anything not yet precluded. This discussion has spoken of both law and ethics. Your incessant drumbeat is that law, or fait accompli, are all that counts. Thus positioned you proceed to gainsay anything, and anyone, who hangs their hat on ethics.

This takes it to the elemental. You see laws as a way to your ends, we see laws as embodiments of the social contract which the majority makes with itself.

Our hope is to get it said correctly and have our majority think both bravely and clearly.
Your hope is that, in whatever manner, those laws can, by compliance or avoidance, serve your own personal ends.



My right to vote, to have it be counted (accurately), are guarantees given to me by the Constitution. How can you propose to Constitutionally take that from me?

Straw Man.

Anyone trying me will learn of the Wicker Man.

For instance, if during the next Miss America pageant, Hulk Hogan walks out in a tutu and is announced to be the winner, am I to believe that?

Red Herring.

Holy Mackeral!


The state's Election Code specifies a procedure by which any voter can request a recount.

The same Election Code allows CA-50 authorities to tabulate the ballots and certify a winner. Dennis Hastert has pre-empted those state rights. He should step down for his attack upon the Constitution. Jim Wright left, civilly, for much less cause.

Use of a third party or any particular type of voting equipment, as long as there is a paper trail as there was in this election, doesn't invalidate the recount provision.

And you again speak as if you were Bilbray's counsel. Ignoring the (GOP) elephant in the room. A recount isn't the freaking issue. It is the pre-emption of the rights of all Americans, by the stealing of the rights of the CA-50 electorate.

Any system can be gamed, just look at what happened in Mexico this year.

Yes. The GOP team dispatched to Mexico just prior to the Mexican election is quite good, isn't it.

I think the key difference between your POV and mine is that I don't believe our system in California can be gamed in an undetectable manner.

Buy your Secretary of State does. So, who to believe?
Think I'll go with conventional wisdom here. It says that any system that can be gamed, will be gamed. Further, when the fraud is detected, the game is over.

So, even with adroit weasel wording, you cannot escape the fact that you agreed any system can be gamed. I stated that any that can be, will be.

Is your rejoinder that California's system can be gamed, but no one is doing it? If not, why not? There is so much stake!

So, what is it? Ethical concerns?

I think any time there is a serious doubt about the outcome of a particular election someone, like maybe the apparent loser, should step up and demand a manual recount.

Yeah. OK.

That didn't happen in this election.

So?

Are you saying Francine Busby isn't worthy of being our champion?

Nope.

And if the plaintiffs in this case honestly believed the result was incorrect, why didn't they follow through with their recount request?

My personal phrasing would be "Slapp Cost Threat". But it doesn't matter.

The issue here is not about Busby-Bilbray. Or a recount. It is about the egregious hubris the GOP demonstrated abrogating a Constitutional duty to a lower jurisdiction by denying them the right to perform their lawful electoral duties.

And as to your argument, "It will only be for six months." I suggest you compare that to the argument of the softhearted rapist who says, "Really! Only ten more minutes."


Well, quackfaster, it's been real.

[robinlynne]

90. Thank-you galloglas!

[OnTheOtherHand]

91. just for the record

what slackmaster actually wrote was, "I live in CA-50 and believe the probability that Bilbray was not the actual winner of the general election is vanishingly small, that the count was close enough to accurate and that he would have prevailed in a recount."

I think the idea of "no basis for confidence" is a very powerful and important one if it's taken seriously. But here -- correct me if I'm wrong -- someone who says 'Busby got Diebolded' is much less likely to be criticized than someone who says 'I believe it is unlikely that Bilbray lost,' even though the first statement seems to evince a lot more baseless confidence than the second one.

I dunno about "vanishingly," but I agree that Bilbray probably got more votes, and I take no pleasure in believing it. This is the man who used his first opportunity to speak after being sworn in to declare, "...the greatest scandal in America is not that one man broke the law, but that 12 million illegal immigrants are in this country and Washington is not doing enough about it." (The "one man" was presumably Duke Cunningham.) Can you imagine the inner life of someone who thinks illegal immigration is the greatest scandal in America -- or, alternatively, someone who doesn't think so but finds it prudent to say so? Ick.

Do I claim to know as a fact that Bilbray won? nope. Did slackmaster? nope. If you of all people can't make these distinctions, then "no basis for confidence" loses a lot of its majoritarian force. I'm really disappointed.

[robinlynne]

39. oh it fell all right. This is not a question of busby or bilbray. This is

"do we have the right to have our votes counted correctly?". Can the current congress bypass all of our electoral rights and appoint congresspeople? This judge said yes. Check the history. It was not a simple matter of paying, even if we could have. The registrar refused to give us information necessary to even decide which votes needed recounting. And was charging thousands of dollars a day starting immediately, before anyone had a chance to look at the data. Now just suppose we need a thousand elections recounted in november. Just suppose the machines count wrong. Just suppose they count wrong all over the country. As we already know they do. Should not the citizens have the right to have their votes counted correctly? without paying absurd amounts of money. Let's see, we just paid billions for the machines, which don't count correctly. The whole country will have them next election. A hand recount should be free and obligatory. period.

[slackmaster]

74. If a hand recount was free and obligatory the machines would be pointless

Because every single election result would be challenged by the loser or the loser's supporters (even if the loser conceded as Busby did in this case).

Maybe that wouldn't be such a bad idea - going back to a completely paper-based hand-counted world. It would eliminate any fears of cyber-fraud and might-be fraud, but it would NOT completely solve the problem of election fraud. The machines are supposed to make the process faster and cheaper, but they aren't there yet.

[robinlynne]

89. The machines are superflous, worse than superflous. They are flawed.

We do not know who, exactly when, or how their codes are programmed. They err. We know that. Because of their known error rate, the sos of CA put a series of restricitons on how they can be used. Those restrictions were not followed. And you would accept the results anyway?

[galloglas]

102. HCPB, slapmaster??

"Maybe that wouldn't be such a bad idea - going back to a completely paper-based hand-counted world."

Yep. Lots of folks would like that.

"It would eliminate any fears of cyber-fraud and might-be fraud, but it would NOT completely solve the problem of election fraud."

So, in your opinion, two out of three ain't good enough? Isn't that like saying it's either curing AIDS, bird-flu, and SARS, or none at all?

"The machines are supposed to make the process faster and cheaper, but they aren't there yet."

Cheaper? I've never seen that front and center! Faster? How fast? And which is most important, speed or accuracy? Which fulfills a democracy, accuracy or speed? Just how fast does democracy need to be, slackmaster.

[Land Shark]

103. can't solve problems of ambition and lust for power, so no election

is perfect. But the better election system gives a lower payoff for a cheater and creates MORE evidence of the cheating.

Electronic flunks both.

[Cookie wookie]

107. The machines are supposed to make the process faster and cheaper?

I thought the machines are supposed to give us elections that are so nontransparent and open to undetectable fraud that the republicans could run a chimpanzee and win. Cheaper? Obviously there is some homework not being done. Taking Diebold's word for things are we?

[Land Shark]

109. Very Untrue Slackmaster stmt (if recount's free & obligatory then OK)

The availability of free and obligatory recounts by no means solves the problem of electronic fraud, or paper fraud. For example, a recount of a stuffed electronic or paper ballot box will give you the same stuffed election result, every single time. You will simply have a verified, stuffed, result.

Recounts only detect a slice of potential election fraud, mostly focused on counting mistakes or frauds, and it assumes a perfect chain of custody of ballots between casting and REcounting.

[BradBlog]

78. Without Reservations, I have to say your head is in the clouds...

YOu said...

>>If the plaintiffs had paid the first installment of the estimated recount fee on time they could have had the recount they requested. The price quoted by the RoV, $130,000 IIRC was outrageous for sure, but that could have been challenged later.<<

The Registrar (Mikel Haas) refused to supply chain of custody documents as required by law. The hand count requester would have had no way of doing her job of determining "the order and manner of the count" without that information.

As well, the price charged by Haas was clearly illegal.

>>BTW - Under California law if you request a manual recount and it turns out the jurisdiction's initial count was wrong, you don't have to pay for the recount. The county would have absorbed it.<<

I'm sure you just forgot to donate the extra $150,000 you have to the effort, since you trust Haas to pay back *anything*. In the meantime, the question was about the illegally administered election run on decertified voting machines. There is no way to tell who actually won the election given the way it was run. Why should a voter have to pay $150,000 of her own money on the premise that she MIGHT get it back, when it was Haas who broke the law in the first place?

>>Registrars charge high fees as a safety mechanism to discourage frivolous recount petitions.<<

Then they are breaking the law. As Haas did in the case. He's ONLY allowed to charge the REAL costs for the hand count. He refused to do that. Clearly, he had something to hide.

>>If it was free or cheap than every single election result would be challenged by people who supported the loser.<<

Bullshit. The law is the law. Whether you care for it or not.

>>I live in CA-50 and believe the probability that Bilbray was not the actual winner of the general election is vanishingly small...I have been voting in San Diego for over 30 years now and have never personally had a problem with registration, ballots, precinct procedures, etc. or had any reason to believe my vote was not counted.<<

Then you know nothing about the voting systems you use to cast your vote. And clearly, you don't care. You have no idea, of course, if your vote was counted or not. Too bad you don't care enough, unlike the patriots on the ground in CA-50, to find out.

>>It was wrong for the House to swear him in before the election was certified, but frankly I don't see any lasting harm coming from it.<<

Then you don't see any lasting harm from the abolition of democracy in America, I guess.

>>I don't believe the plaintiffs chose their battle well in this case.<<

They chose to challenge an election that was run on 100% decertified voting machines. The first such federal election to be run since new state and federal security requirements were issued, and then ignored by the Registrar of Voters in San Diego.

The plaintiffs didn't "chose their battle". Mikel Haas, the Registrar of Voters, did. All the plaintiffs did was answer their civic duty to demand accountability in an American election.

You may wish to consider same. If you give a damn about your country, anyway.

[slackmaster]

94. In case anyone is interested in what the LAW actually says

Recount provisions are covered in Sections 15620 - 15634 of the California Elections Code.

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=elec&group=15001-16000&file=15620-15634

A request for a recount is very simple; it's not Burger King.

The request shallspecify in which county or counties the recount is sought and shall
specify on behalf of which candidate, slate of electors, or position
on a measure (affirmative or negative) it is filed.

Barbara Jacobson's request (see http://www.bradblog.com/?page_id=3039 ) goes way beyond the scope of a recount as specified in the Elections Code.

The terms "chain of custody" and "order and manner of the count" don't appear anywhere in the code. There is no requirement, in a voter-requested recount, for the Registrar to provide up front any documents or any other information prior to commencing the recount.

The code says that a voter who requests a recount has to pay in advance the cost of the first day before the recount can begin. It says nothing about how the Registrar should calculate the estimated cost of the whole count. Costs can be debated later after a recount has begun. It also says this:

The depositor shall be entitled to the
return of any money deposited in excess of the cost of the recount if
the candidate, slate, or position on the measure has not received
the plurality of the votes cast or, in an election where there are
two or more candidates, the recount does not result in the candidate
for whom the recount was requested appearing on the ballot in a
subsequent runoff or general election as a result of the recount.
Money not required to be refunded shall be deposited in the
appropriate public treasury.

IOW if the Registrar charges too much, he has to pay the money back. If he balks and refuses to show how he figured actual costs, that's actionable later on.

BradBlog wrote:

I'm sure you just forgot to donate the extra $150,000 you have to the effort...

Where did I say I had an "extra" $150K? I said I could write a check, for $130K, not that I had any extra cash lying around. The plaintiffs really only had to come up with $6K for the first day, then actual cost at the beginning of each successive day to continue the count.

Brad, you're a self-promoting hothead. Get over yourself.

[rumpel]

96. Those machines were used under a "Conditional Certification"

The CA SOS, certified those machines - with conditions, one of which was chain of custody specifications

So when the chain of custody was jeopardized, after being programmed for the election - the certification was jeopardized on those machines.

I will get you the link to the cert document.

[rumpel]

98. Here it is:

http://www.ss.ca.gov/elections/voting_systems/diebold_cert.pdf

"Each memory card must be programmed in a secured facility under
the supervision of the registrar of voterslregistrar of voters' staff.
Once a memory card is programmed for the election, it must be
immediately inserted into its assigned unit and sealed with a
serialized, tamper-evident seal by the registrar of voters or the
registrar's staff, and have its serial number logged into a tracking
sheet designed for that purpose.
The county must maintain a written log that records which memory
cards and which serialized tamper-evident seals are assigned to
which units. Any breach of control over a memory card shall require
that its contents be zeroed, in the presence of two election officials,
before it can be used again"

"The county must maintain a written log that accurately records the
chain of custody of each memory card and unit from the point of
programming the memory card for use in the election through the
time of completion of the official canvass."

So, when there are pollworkers allowed to take the units home, for days
the registrar has no control over the machines - they are rendered insecure

[AntiFascist]

85. Somehow I'm missing the point!

The main problem with this election was the security breach that occured when election workers were allowed to take Diebold voting machines home immediately prior to the election. Since the Diebold machines are so easily hacked, it would seem much too tempting for some not to take advantage of the situation. If election fraud occured in this manner, how could this ever show up as some other symptom involving registration, ballots, or other visible precinct procedures?

It sounds to me that like this is setting a very bad precedent going into November.

[flyarm]

111. it was just done in Fla in duvall county..welcome to our world in Fla! n/t

[samsingh]

6. unfortunate

[Canuckistanian]

8. I thought the "swearing in" was a piece of theater

How can you swear in a Rep in if the election results haven't even been certified?

Didn't everyone dismiss the swearing in as irrelevant?

It's not looking so irrelevant now.

[OnTheOtherHand]

10. not so uncommon

For instance, Stephanie Herseth (D-SD) was elected in a special election on June 1, 2004 -- which she won by about 3000 votes or 1.1 percentage points, according to the official totals -- and was sworn in on June 3. I'm not sure when that election was certified, but even in South Dakota I doubt they managed to do it in 48 hours. In fact, the Congressional Record documents that the swearing in was done on the basis of a statement from the South Dakota Secretary of State (a Republican, by the way).

This is to advise you that the unofficial results of the Special Election held on June 1, 2004 for Representative in Congress from the At-Large Congressional District of South Dakota show that Stephanie Herseth received 132,236 votes or 50.6% of the total number of votes cast for that office.

It would appear from these unofficial results that Stephanie Herseth was elected as Representative in Congress from the At-Large Congressional District of South Dakota.

To the best of my knowledge and belief at this time, there is no contest to this election.

As soon as the official state canvass has been conducted on June 8, an official certification of election will be prepared for transmittal as required by law.

I won't say that two days is the norm; Nancy Pelosi was sworn in 7 days after her special election win in 1987. I haven't done a study.

[cascadiance]

13. But did Pelosi and Herseth have Diebold involved?

Certainly not Pelosi back in 1987. But this is a new wrinkle on how much not following procedures and bending the *new* rules on voting machines that allow for more drastic differences in results than before and bending the rules in other ways, completely turns off our Democratic process. I still don't buy that this is "situation normal".

[OnTheOtherHand]

20. I think mostly ES&S in South Dakota

I'm just reporting that the swearing-in business was pretty much SOP. Nothing new about that part AFAICT.

[Land Shark]

24. it's not the early swearing in ALONE, it's COMBINED with the claim

that nobody else has any jurisdiction whatsoever, not even for the limited purpose of looking into the truth of the matter or discovering the truth. Thus, the issue was "perfected" on August 22 when the claim is made that the unilateral swearing in, which all by itself is among the swiftest but by no means the only one ever encountered would PREVENT any further valid state action where

(1) all votes were not yet counted (even 2 days later there were still 2,500 uncounted by a letter we have from the Registrar)
(2) it was known or should have been known that recounts and election contests were coming, based on publicity to date
(3) the claim is specifically made that the swearing in will terminate the counting processes of a close and disputed election.

If it were merely the formality of a quick swearing in, I would agree that still raises a technical issue but is not quite the same or as big as the issue is with a contested election, under the circumstances here.

on edit: The jurisdictional claim was raised the defendants, nothing required them to insist on the powerlessness of the voters and the state court as a whole. The FCEA (federal contested elections act) states on its face that "candidates" can file and one files with the clerk of the House of Representatives for a hearing in the House, which appears a futile act given the majority in the House. "The law does not require a futile act" is a well known saying.

[Wilms]

27. That's how I saw it.

With the addition of no help from Busby or Congressional Dems.

[hootinholler]

32. So what next?

Drop it? I'd be shootin mad if that was my election.

-Hoot

[OnTheOtherHand]

37. well, something like that n/t

[BradBlog]

81. Different than what happened in South Dakota...

As you noted in the letter you quoted, the SoS said:

"To the best of my knowledge and belief at this time, there is no contest to this election."

...In the meantime, the ASSISTANT SoS who faxed her letter from CA to the House knew full well that there was a contest concerning this election since it had been well reported as of June 7th.

[OnTheOtherHand]

97. "it had been well reported"

Well, I don't know what to say. I don't think elections officials are legally required to monitor BradBlog when they write up election returns. Had anyone contacted the secretary of state's office?

Certainly as far as I know no one ever did file a challenge to Herseth, so the cases differ in that respect. They also differ in the respects that the Herseth race was apparently much closer, and that Herseth was sworn in even faster. Some folks have claimed that it was unusual for Bilbray to be sworn in just a week after the special election. It wasn't. Right?

[Land Shark]

101. You've already been corrected on this misleading point otoh

My question is (1) what did I do to offend you, or (2) why do you think it's important to spend so much time repeatedly stating the same issue when you've been told before (and you responded to it) that it's not the early swearing in PER SE that makes this situation egregious? In other words, why do you care?

(I know, your dogged pursuit of the truth requires you to go after every election advocate you can find a perceived chink in the armor of). That's pretty much the sum of everything you do here.

What Joy does it give you to trot out Matsui, Pelosi, and a couple other Republicans as part of this effort on your part, when you're not "outing" something that's the same as the San Diego situation anyway?

[OnTheOtherHand]

104. huh?

Paul, I think it takes some chutzpah to tell a judge that Bilbray's seven-day swearing in "may constitute a record for signing in representatives or swearing in representatives, which normally takes 35 or 40 days after the election, or even after certification," and then complain that I am making a misleading point. Why do you not have the sense to walk away from factual errors?

Since you insist on climbing back in my face, here ya go:

107th Congress
Bill Shuster (R-PA09), elected 5/15/01, sworn 5/17/01
Diane Watson (D-CA32), elected 6/5/01, sworn 6/7/01
J. Randy Forbes (R-VA04), elected 6/19/01, sworn 6/26/01
Stephen F. Lynch (D-MA09), elected 10/16/01, sworn 10/23/01
Jeff Miller (R-FL01), elected 10/16/01, sworn 10/23/01
John Boozman (R-AR03), elected 11/20/01, sworn 11/28/01
Joe Wilson (R-SC02), elected 12/18/01, sworn 12/19/01
John Sullivan (R-OK01), elected 1/8/02, sworn 2/27/02*

108th Congress
Ed Case (D-HI02), elected 1/4/03, sworn 1/7/03
Randy Neugebauer (R-TX19), elected 6/3/03, sworn 6/5/03
Ben Chandler (D-KY06), elected 2/17/04, sworn 2/24/04
Stephanie Herseth (D-SD), elected 6/1/04, sworn 6/3/04
G. K. Butterfield (D-NC01), elected 7/20/04, sworn 7/21/04

109th Congress
Doris Matsui (D-CA05), elected 3/8/05, sworn 3/10/05
Jean Schmidt (R-OH02), elected 8/2/05, sworn 9/6/05**
Chris Cox (R-CA48), elected 12/6/05, sworn 12/7/05
Brian Bilbray (R-CA50), elected 6/6/06, sworn 6/13/06

* replaced Steve Largent, who didn't resign until 2/15
** elected during August recess

Why do I care that you not only botch the facts, but shoot the messenger? Umm, maybe because I'm a Democrat. Sorry about that.

It would have been perfectly reasonable to argue that in this case there should have been a delay. But it is not the least bit reasonable to argue that in this case there was some special rush. The record is clear that the House routinely expedites these cases. In several of these cases certified results were available, but in most they were not.

[Canuckistanian]

16. I have no objection to doing it when the results are clear-cut

But Bilbray got sworn in DURING the dispute.

[OnTheOtherHand]

22. without objection on the House floor

It's really hard to contest an election effectively if you can't get the loser or a single member of the House to sign up. And a special election five months before the general, well, that was always a long shot.

[cascadiance]

52. The house floor is not really the people though...

... ESPECIALLY without public financing, when they are more tools of corporations than they are serving the people they are supposed to be serving. Having someone in the house providing a "check" doesn't really provide the check that the voters need. After all it was likely the DCCC and other Democratic Party "advisors" that advised Busby not to contest this election. The courts are the people's avenue to correcting issues that might have gotten screwed up, and that's what just got taken away from us today!

[OnTheOtherHand]

55. no, the House is not the people

I'm actually not trying to enunciate sweeping principles of justice; I'm talking about political reality. The Democratic Party does have a pretty big stake in winning seats, but fighting tooth and nail over Bilbray's special election wasn't deemed a priority. Personally I think that was a reasonable judgment, because (1) there is little evidence that Busby would win a recount and (2) there's another election in November. If "the people" think they got robbed, they get another shot in a few weeks.

It isn't possible to get a 'clean' debate about the merits of electronic vote counting in the context of contesting a specific race (especially a congressional race). Actually, it's hypothetically possible: the entire legal argument could have focused on whether electronic vote counting was constitutional. Or if the object was to force a recount, the focus (legal or otherwise) could have been on forcing Haas to drop the price of the recount -- or just raising funds for it. Choices, choices.

[Land Shark]

56. Not contesting is reasonable because no effective relief is likely

in time, and it would only distract from the campaign for November. In addition, candidate involvement obscures the separate (and I think stronger) interest of the public in the fairness of the election that is weightier than a candidate's personal interest in taking office. I'm unsure if your language above fully accounts for the fact that the DNC called for a hand recount in this race.

OTOH states: "the entire legal argument could have focused on whether electronic vote counting was constitutional." Well OTOH, usually you are more careful than this. This is plain flat out dead wrong. Election contests are very restrictive in terms of the types of arguments one can make (in California) and one of those rules is that if the theory could have been brought BEFORE the election then it MUST HAVE BEEN BROUGHT before the election. A facial challenge to the constitutionality of electronic voting in the sense you are suggesting is one such argument that could have been brought prior to the election, unless you are thinking of some unique twist I'm not seeing in your text above.

In the CA case one of the types of relief requested was to declare a fair price for the recount. You said a focus of the case "could have been" on this, but in fact it WAS one of the types of relief requested.

In addition to the limitations of the election contest laws themselves, a lawyer's actions are further constrained by the goals and needs and posture of the client. As a consequence of all of these and other considerations, brainstorming alternative approaches is highly likely to lead to superficially appealing alternative options that are in fact unavailable as a matter of law, or given the situation or goals of the specific client.

[OnTheOtherHand]

59. sigh

Sure, I think it was reasonable for Busby not to contest the election.

Yes, the DNC's Voting Rights Institute called on July 14 for a hand recount. What House Democrats did on June 13 was something else.

I don't know what you find "plain flat out dead wrong" in my statement, given that you apparently go on to concede it. There was no necessity to contest this election; different legal strategies were possible; but as far as I can see, it wasn't possible to contest the election in a manner that focused on the constitutional arguments. You seem to be saying the same thing.

It was not necessary to contest the race in order to request relief on the recount price, was it?

You seem to be reading all my comments through the assumption that I'm insinuating what should have been done, by you or by anyone else. It's not for me to say what should have been done -- I'm not in CA-50.

[Land Shark]

61. You're just insinuating what "could have been" done, a question similar

to but different from what "should have been" done.

You state what you claim as a nonlawyer "could have been done" and then some readers will conclude in their own mind, though OTOH as not stated it directly himself, that this 'coulda been done' is something that 'shoulda been done'.

It seems we agree in a general sense that an election contest is a narrow vehicle. The clients suggested it and supported it fully, though. They are satisfied clients, and they will press on in one way or another with this effort, whatever seems most effective. FWIW, I have no regrets regarding strategy here.

[OnTheOtherHand]

66. I didn't think I was "insinuating" anything

Gracious, Paul, don't you have anything better to do with your time than look for a fight with me?

My concern is that some people are getting a very narrow view of the legal issues wherein Yuri Hofmann just rewrote the Constitution and foreclosed all judicial recourse. I think people ought to realize that there is more going on.

[slackmaster]

64. Swearings in are always pieces of theater

There have been almost 50,000 swearings in of members of the House of Representatives.

I have to ask, is this the very first time in the history of the nation that someone got sworn in as a Member before his or her election was officially certified?

Can anyone here say with certainty that has never happened before?

Anyone?

And if it's ever happened before, even once, why did that incident not cause the end of Democracy as we know it?

I'll tell you something else that was a piece of theater: Two voters petitioned the San Diego County Registrar of Voters for a recount in the 2006 special election to fill a vacant seat in the House, were quoted a price, didn't want to pay the money, then filed a lawsuit.

[slackmaster]

73. Shameless kick - Still nobody willing to say it's never happened before?

Every time a member of the House has been sworn in has been preceded by an official certification of the election that put him or her there?

There has never before this year's CA-50 special election been a premature swearing-in of a member of the House of Representatives?

[Land Shark]

99. False issue, slackmaster. It's not so much an early swearing

in that matters but the CLAIM (an optional one) that the courts and everyone else lacks jurisdiction to proceed and is powerless to look into the election.

It's a quick swearing in (which has happened before) done knowingly UNDER DISPUTED ELECTIONS CIRCUMSTANCES where a subsequent motion made specifically clear that the swearing in was believed and intended by the parties involved to deprive the Court and everyone else of jurisdiction or power to do anything about it that is the issue.

If that combination of facts existed before, it was just as wrong then as it is now. Regardless of which the democratic or republican names you want to throw out under the misleading banner of "Early swearing in"

Slackmaster you are supporting Busby didn't you get the message from the NC Times that this is something "every voter" ought to be concerned about, according to Busby?

[BradBlog]

82. Your posts are pieces of theater...

I'll tell you something else that was a piece of theater: Two voters petitioned the San Diego County Registrar of Voters for a recount in the 2006 special election to fill a vacant seat in the House, were quoted a price, didn't want to pay the money, then filed a lawsuit.

Wrong. The quoted price was against the law. As well, the Registrar refused to provide the documents the hand count requester would have needed to follow her obligation in the law to determine the "order and manner of the counting".

Since you're unclear on this and many other concepts (or, rather, seem to revel in posting inaccurate info, whether you know that or not is a whole other question), I'll also point out that only ONE, not two, voters petitioned for the hand count in the 2006 special election.

That request was illegally stymied the SD County Registrar of voters and so a lawsuit was filed as the only recourse.

[mikelgb]

12. I will give money if they sue congress

for unconstitutionally swearing in the SOB

[rumpel]

14. unfortunately the station links

did not work for me - so I'll wait for archive....

[bleever]

15. Denny Hastert is now our emperor? WTF?

Congress didn't decide this, Denny did this on his own authority.

The implications of this decision are absurd.

[Bill Bored]

17. Too bad; this whole thing could have been settled with a 10% audit. nt

[kster]

19. OK..................

[Land Shark]

28. pretty funny, in that the 1% audit was all messed up, yet they said

it was fine. They said they'd produce 2800 pages on the 1% audit at a cost of about $840 or so, then after a lot of wrangling they produced 700+ pages at a cost in the range of $200-$300. We still don't know if they can't count pages, or if they withheld information, or if they inflated the price of the documents to deter their purchase, not unlike the recount right.

[Bill Bored]

40. Whether it was fine or not, it wasn't enough to confirm the outcome of

this race. That would require about 10%, maybe a bit more if there were large variations in precinct size.

[Peace Patriot]

21. Now we begin to understand the need for the SPEED of electronic voting

--not just its TRADE SECRET, PROPRIETARY programming code--but the SPEED of zipping out those "trade secret" results, the speed of light at which they travel to the war profiteering corporate news monopolies, and the SPEED at which they "declare" Bushite/warmonger/corporatist "winners" before anybody can figure out what really happened. Add to this the SPEED of the "swearing in," which is used to trump any reconciliation or certification of the vote, and is in fact used to throw any challenge to those numbers OUT OF court.

A Bushite election official "declares" the "winner" on the basis of GUESSING at the vote--and it doesn't matter which Bushite election official, could be anyone--a guess gleaned from MERE SECONDS of SECRET vote "tabulation"--doesn't matter if its chock of full of anomalies, or if thousands of Absent Ballots, paper option ballots and provisional ballots are stuck in some corner as yet uncounted (the will of Diebold/ES&S has been exercised); they rush this at the speed of light to the "media," whose exit polls have been speedily conformed to Diebold/ES&S's secretly programmed "results," and the Bushite is beamed back to Washington to be "sworn in" before anybody really knows what the final vote total was.

Speed, speed, speed.

Really, I thought that TRADE SECRET, PROPRIETARY vote counting was about as mind-bogglingly corrupt and outrageous as they could get. This beats all.

My partner says, "Yup. The Supreme Court chooses the President. The House Speaker chooses our representatives to Congress. Fascist coup complete."

BUT.....

-------------------------------------------------------

THE GOOD NEWS!

Our votes are worth stealing. Think about it. Think of the potential POWER we have, if we can only restore our right to vote. Pure gold, the vote--especially an American vote, since we, the theoretically sovereign people of the United States, exist as the vortex of the Dark Powers who are running rampant over the world. Our potential power to curtail these criminals is worth billions and billions and billions of dollars. We ought to be flattered.

And when we restore our right to vote--which we WILL--boy are we going to have fun dismantling their corporations, seizing their assets for the common good, and putting these criminals and their corrupt politicians and toady judges to work cleaning bedpans in Veterans Hospitals.

[FogerRox]

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[Wilms]

25. Let's face it.

It ain't like congressional dems did anything about the swearing in. Nor did Busby say anything.

That, I think, puts us in a tough position.

[Land Shark]

29. I for one, did not expect Busby to contest, nor would I MYSELF HAVE

contested it, if I were the candidate, because to file with the clerk of the House of Representatives (as would be required) only to get a decision that would probably be after the November election (with the misleading but possibly effective argument that it was moot) would just be a waste of time and distract from the forward looking nature of the campaign for November.... The law does not require a futile act, or at least political prudence doesn't require a futile act.

GETTING IT: There's no effective relief in any location with such a short fraction of a Congressional term left, so this is a theft that it is highly likely to be successful, if you define success as seating your favored representative and never having to say you're sorry or have that decision overturned by anybody. THIS SAME ANALYSIS does not apply to citizens concerned with election integrity, because the question of who sits in office is not the most important question, the truth of the election and the repeatability of problems until challenged is the important issue.

[formercia]

53. ersatz case law

the more they get away with their arguments, the more case law they will have to obfuscate in the future.

IMHO, not being an attorney.

[FogerRox]

30. Yeah I know, . . . . . BUT

I dont have to like it................

Futher mucker

[livvy]

54. LOL.....and I'm with you. n/t

[JimDandy]

51. After today, robinlynne's candidate contract

really needs to be considered by the DNC as a serious means to prevent Congress from utilizing this judges ruling to the detriment of the party, especially in the case of special elections. It is now IMPERATIVE that Dem candidates not only do not concede, but that they
1. have lawyers ready to roll at the close of counting on election day (since absentee and provisional votes now no longer matter)
2. that every candidate reserves part of their fund raising for recounts,
3. and that the party require candidates to immediately request recounts in order to preserve their standing.

[New Earth]

34. LOL

hahahhaa.

[JimDandy]

48. ROFL Thank you for this FogerRox.

I was avoiding these threads today -- sooo discouraging, but I'm glad I peeked at yours. I'm now ready for anything again!

[Bill Bored]

33. Well, here's what else is interesting:

Article I, Section 5 of the US Constitution - Membership, Rules, Journals, Adjournment - says that each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.

If this is true, then wouldn't it be entirely appropriate for a piece of legislation such as HR 550, or an improved version that we all might actually support, to spell out how to do this?

I'm not happy with this decision. I think there should have been a 10% audit to see if the sleepovers and hackability of the Diebold junk were exploited to rig the count. Maybe it would have required a 12% audit. But aside from that, if the court and the Constitution are correct, it means that if we want to reform our elections, we had damn well BETTER get the Congress to do it, whether it's done with HR 550 or not.

Just a thought.

[OnTheOtherHand]

35. we make that road by walking, but in 1984

I think the Indiana Secretary of State actually certified the Republican as the winner, but the House of Reps later determined that in fact the Democrat had won. That was a pretty big trump.

[Bill Bored]

38. Well I changed my original post (to which you responded), but

just for the record, I had asked if this part of the Constitution applied only to Special elections, or all House (or Senate) races.

I changed the post to say something a bit different after reading Article I Sec. 5 myself. It looks like it's all of 'em!

[OnTheOtherHand]

57. thanks -- my response does read strangely after your edit!

Yeah, there's no doubt that I/5 applies to everything. The idea is that the courts can't be empowered to determine who sits in Congress. This checks-and-balances stuff is not as simple as it looks on television.

And yes, pending a constitutional amendment, a legislative approach seems important.

[Land Shark]

60. The judge's ruling recognizes that "who sits in Congress" was not part of

this case. We litigated whether or not the contestants and/or the public had an interest independent of the question who sits in Congress: just the right to find out if the election was correct or whether a gag order was in effect placed upon a systematic inquiry into the bona fides of the election. The Judge dismissed the entire case on jurisdictional grounds based on the exclusive jurisdiction of the House, and we never even made the claim that WOULD tread upon Art. I, sec. 5, that Bilbray be ordered removed from office. So that straw man was not really there, and what was left is the question of whether the state courts could do anything at all in terms of investigating and/or declaring the result of the election, without purporting to touch upon or invade the House's Qualifications' power to "Judge" their "Members" (again, not truly an issue in this case)

Clearly, elections are a shared power, with Art. I, sec. 4 committing the Time Place and Manner of elections to states, so there should be power for both states and feds possible.

[Bill Bored]

86. Well, perhaps an election Contest was the wrong strategy?

Plaintiffs wanted to know if the count was fair and accurate.
There was a financial problem in making that determination.
Could there not have been a suit based strictly on the violations of CA Election Law, without contesting the election?

For example, in NY, there is a whole section of the Election Law that punishes people and esp. elections officials, for screwing with the franchise. This includes interfering with reporting of results and a host of other stuff. None of this requires an election contest. The penalties are misdemeanors and felonies. Sometimes the felonies kick in when there are multiple misdemeanors OR when an elections official violates the law. Elections officials are held to a higher standard than your average thug.

So, was there nothing in CA Election Law that could have been used against Haas if he had broken other CA Election Laws?

[BradBlog]

88. I think it was the right strategy...

...Despite unfortunate result, which -- ultimately -- on appeal and in the press, etc. may be prove to be a "fortunate" result in that it outted some really bad guys and their disdane for democracy. NOW, instead of later.

As to whether a suit could have been filed *solely* against Haas for illegally keeping the hand count from proceeding, perhaps it could have been. But as the election itself was still in question, I believe the plaintiffs also hoped to keep options open as far as tossing out the illegally administered race (run on decertified voting systems). That makes sense to me and seems to have been the correct legal strategy to pursue.

You'll note that neither the registrar nor the Bilbray attorneys informed the hand count requester that her $150,000 (if she had chosen to pay Haas' illegal cost estimate) would have been a waste of time since, by the point -- according to Bilbray's attorneys and the judge who agreed with them -- there is no jurisdiction in California for such a hand count of votes.

By the judges ruling, even if they had paid the (illegal) fee of $150,000, found that Busby actually received more votes than Bilbray, the Republicans would have still kept Bilbray in the Congress.

Voters be damned, say the Republican Defendants and the Judge who has enabled them.

[Bill Bored]

92. Well yeah, but think of the PRESS if that had happened!

Even the MSM might be all over it if the Congress actually defied the will of the people in a properly administered, hand counted election!

So if there's any chance of getting the hand count anyway, or the ~10% audit to see if the outcome was right, it might still be worthwhile. Are there any sunshine laws where citizens can do the recount themselves? What about after Nov. or Jan. when this election becomes moot?

[OnTheOtherHand]

95. well, perhaps we will see whether it was a "straw man" on appeal

AFAICT the judge accepted the argument that the purpose of a contest under California election law is to alter the outcome of the election -- and the California courts had no power to do that once Bilbray had been seated. Is it possible to contest a congressional election "independent of the question who sits in Congress"? The judge thought not. If Busby were "judged elected" after a court-ordered hand count, what would that mean?

Also AFAICT a court-ordered recount could have been available under section 15640, so the rhetoric about "a gag order" and "whether the state courts could do anything at all" seems overstated. (Of course you could not have called for a recount under 15640, but as I have said, this is not about you.) And, of course, a voter-initiated recount was available.

[Land Shark]

100. You're doing a lot of legal reading here that just ends up confusing

other people. Did you find the statute in the 16000 (election contest) range that also provides for a recount? There are other remedies short of an order for a seat to change. Taking that away just takes away a slice of what's possible.

[OnTheOtherHand]

108. yes, I did

Would contestants have won the case if contestants hadn't asked for apparently unconstitutional relief? Heck if I know. I have actually been trying not to second-guess the legal strategy. As I understand the court's ruling, it would not have mattered in any case.

I don't really expect counsel for the contestants to enter into a candid discussion of the legal issues, but some restraint would be welcome. The court held that the election could not be contested -- and so it is far from clear how the court could have ordered a recount under the contest provision. But if the court indeed made an egregious error on this point, maybe a qualified election lawyer who isn't actually working on the case will see fit to explain why.

[Land Shark]

110. Which lawyer are you talking to or working with for the source of your

statements?

[OnTheOtherHand]

112. one might read the ruling

This is getting a bit surreal. Do you disagree that the court held that the election could not be contested?

Can you direct me to the lawyers who agree with your position, whatever the hell it is?

[troubleinwinter]

113. "appeal"

I note that Brad Blog/Velvet Revolution is soliciting funds/donations yet again, now for an "appeal".

I don't understand many of these legalities, and a clear, plain explanation regarding appeal would be appreciated.

[troubleinwinter]

114. Ooops

The post should really have been directed to LandShark. Hopefully he will see the post and respond.

[JimDandy]

50. We CAN'T make laws telling congress how to conduct

their internal procedures (including how each House should go about judging elections.) That's the whole problem! They are a law unto themselves, especially after this judges ruling.

[robinlynne]

36. This is a sad day. We are going to be screwed in november. So the sitting

congress gets to appoint the new congress. Elections can be bypassed completely. Vote counts are of no matter to the judge(s).
Shit!

[Bill Bored]

41. Not so fast...Article I Sec 2 STILL says:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.

[robinlynne]

42. but the judge just overruled that article in favor of the article

which says "the congress shall make all decisions regarding elections of its members.". I agree, we have the right as the people. but we LOST. It is amazing. unbelievable.

[Bill Bored]

43. I agree, but at this point it seems to apply only to contested elections.

It should never get to that point, but it did because the voting machines were not secure, or designed to be secure.

In Nov., since the Pukes are in charge of the Congress, they could conceivably contest every Democratic victory and rule in favor of their own candidates. But then they'd have to overturn actual vote counts, bogus though they may be on the machines. I don't think they'd try that without some evidence. They've seen to it that there won't be any because there are no paper trails. But in the states where there are paper trails, I suppose they could demand recounts.

[flashsmith]

44. Am I reading it wrong?

it seems to me that the ruling made all elections pointless. Congress can just swear in the candidate of their choice, even before the polls close and the state can't do anything about it. It's a great time and money saver. No need for campaigning or waiting on line to vote, but damn, I already miss living in a democracy

[Bill Bored]

45. What should have happened...

The plaintiff should have enjoined Congress from swearing in the declared winner until the challenge to the election had been decided. Apparently they had about a week to do this. I don't know how to do it, but that's what lawyers are for.

[Land Shark]

47. enjoining congress? that's funny.

And, if you meant any reference to me by referring to "lawyers", it would have had to have been done more than forty days before I ever got a phone call related to this case.

[Bill Bored]

49. You are correct. That is also when they should have done the 10% audit. nt

[slackmaster]

65. Plaintiffs should have come up with the payment for the recount

If the plaintiff REALLY believed the reported election result was wrong. In California, if a recount reveals that the initial result was incorrect, whoever petitioned for the recount doesn't have to pay a dime. The plaintiffs COULD have paid the money, and if the recount didn't overturn the election they could have dickered or sued about the price later.

$130,000 sounds like a lot to one person, but remember CA-50 covers some very affluent areas in the city and county of San Diego. One of the plaintiffs is a lawyer who lives in Rancho Santa Fe, one of the wealthiest places in the state. Anyone in the city who has owned a home more than a few years can easily get an equity loan for that amount. Evein I could write a check for $130,000 today, and it would be good. But I wouldn't have paid for a recount in this race.

Choose your battles wisely, people. And when you do, you'd better stick to your guns. The plaintiffs in this case waffled and lost.

[Bill Bored]

76. And maybe, if they played their cards right, they could have gotten

a 10% random audit for only $13,000! With a 4% margin in a race this size that would probably have been enough to detect any outcome-affecting fraud. In any case, the precise sample size could have been calculated.

We should be trying to get elections officials "used to" auditing elections, but the only ballots hand counted in this race so far were the messily 1%, leaving the outcome uncertain.

Plaintiffs also should have asked to see Ballot Definition Programming which could have easily been used to rig the machines, although the 10% audit would probably detect that too as long, as the voters actually verified their paper records.

Plaintiffs also should have hired an Election Lawyer right away instead of waiting until after the swearing in.

I think what we've learned from this is that we have to be a LOT more organized.

[BradBlog]

84. They had no cards, of the sort you mention, to play...

There is no provision in either state or federal law to request (or pay for) a 10% audit as you suggest.

As to hiring an Election Lawyer prior to the swearing in, a) There was no way to know when the House would swear him in (just 7 days after the election), b) There was nothing plaintiffs could do, according to California state law, until *after* certification (29 days after the election) when they are then, and only then, allowed to file for a hand count request (for five days after the certification) or a contest (for 30 days after the certification).

Just FYI. I don't think you're posting purposeful dis-info, as SlackMaster has been doing. But I just wanted to correct some fallacious points you had made.

[Bill Bored]

87. Thank you. Please see post #86 then. And also,

I'd think a court could have ordered the 10% audit whether it's in the law or not. Judges often have a fair amount of discretion in such matters.

[BradBlog]

83. Slackmaster should come up with a new piece of propoganda...

I've already responded several times to your belligerent and knowing nonsense.

As to your (newest) nonsense that Sad Diego is an affluent area and thus, a voter shouldn't mind paying a buck a vote for a hand count (verus the 14 cents per vote charged in neighboring Orange County)...I'd say it shows you have no interest in either Equal Protection OR democracy.

Keep up the good operations though, Slack! Say it enough, and *someone* will believe it's true, I guess.

[kster]

46. I'm thinking the same thing myself

cozy up to Congress, Let California start their election and If I got friends in Congress, two minutes after the election starts in California, I get Congress to swear me in, and waaaaaaaaaala.

[lonestarnot]

58. me too me too, can I be the governor?

[kster]

67. Oh OK, I'll ask congress, after all they are the Deciders

screw those pesky voters, and the California Judges, they don't need to be deciding nothing for themselves or their state, Congress will decide for them on who gets voted in to run their state.

Californians should be thanking congress, after all they did allow the state to hold a make believe election, so that the people and the judges would atleast feel like they were part of the process, what more do the people of that state want? GEEEEEEEEEEEZE

[lonestarnot]

70. Really swell of them!

Ok do ask, I'd like the office and would be of benefit to the state. I'll teach them how to curse.

[emlev]

75. all *Congressional* elections, not all elections EOM

[grizmaster]

63. "just a piece of paper"

If this keeps up it will actually be true