CA-50 and What to Do in November (and right now too).

[Bill Bored]

OK, so they swore in the "winner" (according to the machines) only 7 days after the Special Election. The plaintiffs in the case barely had time to finish their caffe lattes before the outcome of this case was etched in stone. What a bummer!

So what about November -- the "real" election?

Well, according to the 20th Amendment, Congress doesn't take office until at least January 3rd, so presumably, there won't be any swearings in until then. That gives the plaintiffs about 2 months to make their case next time. Maybe those founding-father dudes weren't so dumb after all.

And there are only 435 seats to worry about, so that should be a piece of cake!

In states with voter-verified paper trails or ballots, the paper should be audited. There are various methods proposed as to how many need to be hand counted to confirm the outcome of each race. According to one estimate:

In the 2004 general election for the US House of Representatives there were 57 races with margins of less than 17.4% requiring more than a 2% audit, 14 races (with margins of < 8.1%) requiring more than a 5% audit and 7 races (with margins of < 4.2%) requiring more than a 10% audit.
<http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=203x445924>

This doesn't sound too bad, does it? Only 57 races that couldn't be confirmed with a 2% audit. Maybe gerrymandering isn't so bad after all. Not a lot o' close races! (Hmmmm, I wonder who thought that up.)

But wait a minute...I almost forgot: There is no federal requirement for 2% audits -- or ANY audits for that matter! Not even additional audits if cause is shown!

California audits 1%; other states have other percentages, but most states don't have ANY audit requirements at all.

There ought to be a law!

In fact, almost half the states don't even have voter-verified paper records.

There ought to be ANOTHER LAW!

Or maybe they could even put the paper records and the audits in the SAME LAW!

Anyway, I'm glad we'll have more than 7 days to contest the November elections. Maybe the plaintiffs can get organized in time to make a difference in the "real" election. Seems like all they have to do is go to court to stop this swearing in thing. After that, just count some ballots!

But at this point, they should be working on plans to audit something called Ballot Definition Programming to make sure this won't happen before the election:
http://www.votersunite.org/info/mapVoteSwitch.pdf
Such audits can be done in ALL STATES on ALL e-voting systems, even the paperless ones. If the plaintiffs are denied access to this data, they can go to court even before the election! Now THAT'S a case I'd like to see! But ya gotta get ORGANIZED!

And speaking of paperless, there is something called random parallel testing, now done in California even though they actually have paper in their machines. It's the only way to see if any of the machines are actually counting votes on Election Day. So why can't every state with paperless machines do this? Are there any activists demanding it or just the Brennan Center for Justice? <http://www.brennancenter.org/programs/dem_vr_hava_machineryofdemocracy.html>

Until the e-voting problem is solved for good, the above is the best we can do.

So good luck y'all! I'll be voting on a lever machine this year. (We'll check to see that the gears are workin'!)

[FogerRox]

1. Busby has got to come out swinging and pound Bilbray into the ground...

KNR

[Bill Bored]

2. Would that work for the other 434 seats though? nt

[BeFree]

3. Spot on, Bill

Holt should introduce an amendment to his amendment asking for those two things: A paper trail and audits in each and every federal election. I would wholly support that.

Barring that miraculous democratic recovery, we must demand that the machines be looked at as closely as possible without giving them the benefit of blind faith.

Man, how I wish levers were going to be my choice of casting my vote. As it is, audits are my only chance. So be it, we shall do what we can do.

[Bill Bored]

6. But, but, but....

A paper trail and audits in each and every federal election is EXACTLY what HR 550 would provide. It's not perfect; some of the language needs to be tweaked a little. But there are a fair amount of us here who won't support it at all.

I'm not trying to reopen that whole debate in this thread necessarily, but it's something that we should be able to reconcile at some point, don't you think, BeFree?

Oh well, as they say in baseball, maybe next year.

[BeFree]

18. Yes, let's not reopen it here...

...awwww, what the hell....

550 has some ambigious language in it. It's too complicated therefore has too many loopholes.

What you suggest here is what I'd like to see in 550. KISS.

I think if it came right down to it, most everyone would be glad 550 was passed, but since it may not, why not keep asking for mo' bettuh? That's where I am.

For now I am just hoping for more details on audits in general because audits will prove the machines steal votes and then a bill mo' bettuh than 550 will be enacted, eh?

[Land Shark]

4. Audits and paper trails Useless under conditions where officials hide

or fail to fully disclose the evidence. What is that, 70% of all jurisdictions, when and if there is a disputed election?

Of course, even a robust audit at 10% or more is nullified by an early swearing-in followed by a jurisdictional motion.

I think the moral of the story is that if you're serious about wanting something to be effective legislation-wise, make sure that it takes place prior to the announcements of the first counts.

[Bill Bored]

5. First counts.

The assumption that first counts are correct counts (or outcomes especially) certainly needs to be changed. Especially in close elections. Didn't ESI prove that for us in Ohio? And didn't Diebold and the Cuyahoga BoE violate HAVA Sect. 301 by having such an error-prone voting system?

It seems like in "regular" elections, there is enough time before people are sworn in to do as many counts as necessary. Was there enough time in the WA Gov's race? Did they have to delay the swearing in of Gregoire? (I'm just askin'.)

Anyway, if the audits are done properly with all the bi-/multi-partisan observers present and such, I don't think they're useless at all as long as there are enough of them. The standards for audits should be no worse than those for HCPB.

Were there no CA Election Laws that could have been used to prosecute Haas? In my state, messing with the franchise is a serious offense. I can't believe it's that much different on the west coast. Is it?

[Febble]

7. Well, yes

which is why transparency and secure custody of ballots should be part of any good audit protocol.

But you can't have an audit protocol without a "paper trail" because you wouldn't have anything to audit. And transparency without audits would be just as useless. Even late swearing in is useless unless you can do something useful (like an audit) before the race is certified.

As for "a robust audit at 10%" - I wish people would stop getting hung up on these damn percentages. The percentage required to be "robust" depends on what is being audited, and how large the race is. Sample size is what matters, and that will depend, among other things, on your unit of analysis. For some audits 1% could be "robust" - for others, 10% would be quite inadequate.

But sure, the important thing is to get a properly audited and certified count before anyone decides they've won. (Perhaps that's an argument for banning exit polls....)

[Bill Bored]

8. In this race, 10% would have been robust -- I checked.

Maybe 12% (depending on precinct size variation), but 10% is in the ballpark. I've been posing about this for a while now, but it's not the path chosen, if there was a choice.

And if there were criminal acts committed by elections officials, that's something that should be dealt with too, regardless of who won the election.

[Febble]

12. RE criminal acts.

of course.

Who won is a completely different question from who cheated.

[Bill Bored]

15. There ya go. Never mind cheating. What about pure negligence?

I say get Sgt. Joe Friday on the case! He carries a badge and San Diego isn't that far from LA. Or maybe just a prosecutor or something.

Daaaaaah da da da.
Daaaaaah da da da daaaaaaaaaaaaah...

(I'm serious BTW.)

[Febble]

17. Exactly. n/t

[Kip Humphrey]

9. How will your vote be tabulated? ES&S? Sequoia? By hand?

[Bill Bored]

11. Random audits by hand, precinct totals chked against tab totals by hand.

[fooj]

10. Organize NOW!!!

KandR!

[eomer]

13. How does this work in practice?

Apparently there have been only a couple of contests that were handled within the House (under its Constitutional authority to judge the election of its own members) in recent decades:
Dornan v. Sanchez - 1997
McCloskey v. McIntyre - 1985

In the more recent case, a Republican majority Congress (the same one that impeached Clinton) upheld the election of the Democrat, Sanchez, who was the certified winner by a margin of 979 votes after a recount under California law (as opposed to a House-ordered recount).

In the earlier case, the state of Indiana certified the Republican, McIntyre, and then the House decided to order its own recount. The recount showed the Democrat, McCloskey, to have won by 4 votes. The Democratic majority Congress voted to take the seat away from McIntyre(R) and give it to McCloskey(D).

Other than those two, it seems that all other disputes in recent years of House elections have been handled under respective state law, prior to the January swearing-in and therefore prior to any possibility of a contest within the House itself. I assume there must have been scores of disputes handled that way (under state law) versus two that were handled the other way (under authority of the House to judge its own elections). That confirms BB's conclusion (if I read him correctly) that the Busby/Bilbray jurisdictional problem isn't so likely to be an issue in a regular election.

Edit: Here are some of the links I looked at to draw those conclusions:
Congressional Record of the 1997 swearing ceremony
House Report dismissing Doran v. Sanchez contest
House bill dismissing Dornan v. Sanchez contest
C-SPAN article on the contest process in the House

_{Caveat: I am not a lawyer (IANAL). Not that I sound like one probably (should I say thankfully?) but just so it's real clear.}

[Bill Bored]

14. Nice work Greg!

One other point is that this provision in the Constitution seems to confirm the notion that Congress has the right to make laws such as HAVA, or amendments to HAVA, that would govern federal elections -- especially theirs.

I know this doesn't play well in New Hampshire, where they want to "live free or die" and all that and don't take kindly to federal interference with their elections (see DFNH's anti-HR 550 rants) but it would seem to be the law of the land that Congress runs federal elections, except perhaps for President, for which we don't even have a Constitutional right to vote in the first place.

So if Congress wants to privatize, automate, computerize, and otherwise make elections riggable and unverifiable and unauditable, it would seem that the states can't do much about it without a Constitutional Amendment. HAVA stops short of doing that, but it is often misinterpreted. An amendment to HAVA such as HR 550 would be an improvement, and of course HR 550 itself can also be improved.

Interestingly, Presidential elections are actually left up to the states. So if I were a rabid HCPB type of guy, I'd say to push for HCPBs for President in the several states in 2008. After all, how hard is it to hand count ONE RACE? Congress has NO right to interfere with Presidential elections, except to challenge the electoral vote as was done on Jan. 6, 2005. That's my interpretation anyway.

Some are even calling for a Constitutional Convention to get rid of e-voting now, led by some guy named Walker who just wants to do away with the Income Tax! Talk about strange bedfellows! Personally, I think that in this climate, that would be the end of democracy as we know it. The last thing we want is for the neocons to have any input into writing the WHOLE Constitution. That's what happened at the one and only Constitutional Convention we've ever had! See this disturbing thread:
<http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=203x446956>

Anyway, we still have the right to vote for House Members and Senators, so that has to be balanced with any other Congressional mandate. They can't repeal the rest of the Constitution (at least not without a Constitutional Convention).

[OnTheOtherHand]

16. excellent

Maybe this business of looking stuff up and posting the results could become a trend. That would be cool.

[eomer]

19. Correction: there was an election contest in 2003 that I missed

Tataii v. Case - 2003, in the 2nd Congressional District of Hawaii

The C-SPAN article I referred to was written in 2000 so it did not include the 2003 contest. That makes three contests in the last couple of decades rather than two as I said in my earlier post. I don't know whether there are more since I haven't found a comprehensive list.

Tataii v. Case was something of a non-event in that the contestant, Tataii, received .001% (9 votes) while the contestee, Case, received 43.2% (33,002 votes). It was a special election (due to a deceased candidate winning in November) with 44 candidates on the ballot and apparently the rules were that the candidate winning the plurality was the winner of the election. Both Case and Tataii ran as Democrats. Tataii is currently, in 2006, running for Senate as a Republican. Case is running in the same Senate race but is still a Democrat and will challenge Sen. Akaka in the primary. The Tataii v. Case contest in 2003 was dismissed. The dismissal passed out of committee by a bi-partisan voice vote. I can't find the vote in the full House but would assume it was not contentious due to the top three candidates being Democrats and receiving about 81% of the vote between them. The highest Republican vote getter was in 4th place with 5.9%.

Although it was a non-event in terms of the likelihood of the contestant prevailing, it is interesting that this election had the same timing issue as CA-50. The special election was held on 1/4/2003 and the "winner" was sworn on 1/7/2003 based on the uncertified results of the election. Tataii both contested the election in the House and contested it under Hawaii state law. Here's the timing of some of these events:

• 1/4/2003 - Special election
  
• 1/7/2003 - Case sworn in as member of Congress along with other new members
  
• 1/24/2003 - Tataii filed a complaint under state law contesting the election results (Tataii v. Yoshina)
  
• 1/31/2003 - Tataii filed a notice of contest with the House Clerk.
  
• 5/22/2003 - Hawaii Supreme Court issued judgment in Tataii v. Yoshina in favor of Yoshina.
  
• 5/23/2003 - Case certified under state law as winner of the Congressional seat.
  
• 7/9/2003 - Committee on House Administration by voice vote agreed to a motion to report a dismissal resolution favorably to the House.

So here is a case where the jurisdictional argument was not raised in the state supreme court proceedings and therefore the state complaint was adjudicated at the same time that an election contest was pending in the House. After the supreme court issued its ruling then the contest in the House was dismissed.

There are a couple of comments in the House Report that touch on the timing and almost on the jurisdictional question (bold emphasis is mine; italic emphasis is original):

On January 24, 2003, the contestant filed a complaint pursuant to state law with the Hawaii Supreme Court contesting the results of the special election. Under Hawaii law, the State chief election officer cannot certify the results of an election until any contests filed in State court relating to that election are resolved and the time for appealing the decisions has expired. 5

<Footnote> Thus, the Hawaii Office of Elections had yet to certify the contestee as the winner of the Second Congressional District seat at the time that the contestant filed his Notice of Contest. 6

-snip-

TIMING/NOTICE

The Notice of Contest appears to have been served upon Congressman Case and filed within the appropriate time strictures of the FCEA. 8

<Footnote>

<Footnote 8: The FCEA states that the filing of a Notice of Contest will be considered timely only if done `within thirty days after the result of such election shall have been declared by the officer or Board of Canvassers authorized by law to declare such result.' Id. (emphasis added). As mentioned above in the Statement of Facts, when the contestant filed his Notice of Contest, the chief election officer for Hawaii had yet to officially certify the contestee as the winner of the seat for the Second Congressional District because the contestant's election contest filed pursuant to state law had not yet been resolved by the Hawaii Supreme Court. The question, therefore, has been raised whether this matter was ripe; i.e., whether Hawaii's chief election officer must have first certified the election result before the Committee could consider the contestant's Notice of Contest.>

The Committee finds that an official certification issued pursuant to state law by a state's chief election official is not always necessary for an election result to be considered `declared' for purposes of the FCEA (although a certification will typically be the dispositive event triggering the FCEA's 30-day filing window). Rather, the Committee concludes that an election result may be considered to have been `declared' where, as in the instant case, the House has sworn in a member based upon the uncertified results provided by the relevant state's chief election officer.

http://thomas.loc.gov/cgi-bin/cpquery/T?&report=hr207&dbname=108&

Apparently there is more than one way these things can go down, depending on which arguments are raised by the parties. I'm a bit confused by the timing section of the report and how that relates to the CA-50 jurisdictional question. It seems like the authors of the House Report had a different understanding of the relationship between the state proceeding and their proceeding but I could be misreading it. Maybe someone else (including any lawyers who happen by) can offer a take on how this 2003 case is reconciled with the current CA-50 ruling.

In fairness I should add that the contestant, Tataii, didn't think the contest was a non-event. According to the House Report, Tataii "asserts that the January 4, 2003 was `most likely rigged' by state party officials. He bases this claim on the fact that while he garnered 14,178 votes in the primary election, he received only nine (9) votes in the special election". I haven't looked into and have no idea if there is any basis for his allegation, which is apparently aimed at state Democratic Party officials. As I mentioned above, Tataii has switched over and is now running as a Republican, for whatever that is worth.

_{Edit: punctuation}

[OnTheOtherHand]

21. hmm

OK, so there have been a bunch of contests under FCEA, although apparently not many have gotten very far. I think we were especially looking for cases of potential conflict between state and House jurisdiction.

As I see it, the timing issue in the House report on Case/Tataii had to do with when Tataii was supposed to file a Notice of Contest under the Federal Contested Elections Act. As far as I can tell, a contest under FCEA can only be filed by a candidate (http://www.washingtonwatchdog.org/documents/usc/ttl2/ch12/sec382.html ) -- so there was no FCEA issue in Bilbray.

One might wonder why the case in Hawaii courts wasn't thrown out on the basis of lack of jurisdiction. I'm not sure it couldn't have been, although the issue in the Tataii contest was very different. Tataii's basic argument was that in a parallel universe very close to this one, he would have been the Democratic nominee in November 2002, and Ed Case would never have been in the picture. (I.e., as you know, he argued that Patsy Mink should have been thrown off the primary ballot in September 2002 on account of illness, in which case he would have won the primary. Patsy Mink in fact died before the general election.) The Hawaii Supreme Court had already rejected this argument in 2002, and it did so again in May 2003, entering summary judgment against the plaintiff without oral argument. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=hi&vol=2003_05/25599ord&invol=1 Apparently there was no need to address the jurisdictional issue; the plaintiff had no recourse under state law, never mind any conflict with the House.

There may well be more to Hawaii election law and the jurisdictional issue, but apparently the Tataii case didn't exactly test the limits.

[Bill Bored]

23. What were the victory margins (in %) in these races anyway?

With CA-50 we're talking about 4%. If the others were comparable, which I doubt, Busby should have challenged it, especially in light of the sleepovers.

I think this is something that needs to be considered in Nov. if the sleepovers continue. And of course a 1% audit is useless in such a race. Only about a 34.5% chance of finding of a miscount if there are enough of them to change the outcome.

[eomer]

26. The margin was real close for a couple and ridiculously unclose on one.

Tataii only got 9 votes (.001%) so maybe his challenge was a long shot.

McCloskey v. McIntyre was on the other end of the spectrum. The initial count was McCloskey by a margin of 72 votes. A tabulation error was discovered and when it was corrected then the certified result flipped to McIntyre by 34 votes. The Democratic majority House then did its own count and flipped it back to McCloskey(D) by a margin of 4 votes. Clearly this one was too close for any forseeable election system to determine who actually won. After the vote on the contest in the House, every Republican member marched out in protest. I guess they weren't as keen on the prerogative of the House majority at that particular time.

Dornan v. Sanchez was also a close race. The initial certified result was Sanchez by a margin of 984 votes. Dornan requested a recount under state law and the result of that was Sanchez by 979 votes.

I haven't looked up margins on any others but it's probably true that most contests filed in the House are for races with a close result.

[eomer]

24. Looking for cases of potential conflict between state and House

jurisdiction. Yes, that's what I'm looking for too -- but just posting some of the background info I find along the way.

Here's something I found where the Republican majority members of the House Oversight Committee offered an opinion about jurisdiction.

From the Report DISMISSING THE ELECTION CONTEST AGAINST CHARLIE ROSE, SEPTEMBER 26, 1996:

DISMISSING THE ELECTION CONTEST AGAINST CHARLIE
ROSE
SEPTEMBER 26, 1996.—Referred to the House Calendar and ordered to be printed
Mr. THOMAS, from the Committee on House Oversight,
submitted the following
REPORT

-snip-

Although the House’s constitutional responsibility to fairly judge
the elections and returns of members is not limited by state law
or state judicial decision, Mr. Rose correctly pointed out that the
House has traditionally treated with respect state election laws
and related legal process.³⁶ In general, deference to state law and
procedures is a fair, just, and appropriate procedure for the House.

It appears to the Committee that Mr. Anderson did indeed seek
state relief by his filing of his state complaint a month before the
Notice of Contest was submitted. As discussed above, the state
Board of Elections certified Mr. Rose’s election only under very unusual
circumstances. Moreover, the board left open the question of
reconsidering the matter once the SBI had completed its investigation.
As that investigation was not completed until long after the
deadline for filing a contest under the FCEA, Mr. Anderson properly
chose to proceed along two tracks.

-snip-

³⁶It is clear that this House tradition was grossly breached in the handling of the McCloskey-
McIntyre contest. See H. Rep. 58, 99th Cong., 1st Sess., McCloskey v. McIntyre, at 45–58 (1985)
(dissenting views).

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=104_cong_reports&docid=f:hr852.104.pdf

So in 1996 Republican members of the House committee considering an election contest argued that it was proper for process under state law to proceed on a parallel track during the same time that a contest was pending in the House and that they should grant deference to the results of that parallel state process. The "gross breach" alleged in footnote 36 apparently was that the House in McCloskey v. McIntyre overturned the result derived from state process and replaced it with that from its own process.

[OnTheOtherHand]

27. yes, but note that Bilbray doesn't reverse that precedent

Say Busby had contested under FCEA, with the state action still pending, and a Republican majority on the House Oversight Committee had voted to reject the contest. That would have been ugly. (I assume that Republicans honestly thought that McCloskey v. McIntyre was ugly; without opining on the merits, which I frankly don't know enough about to judge, at least the Dems let the state process play out before they overrode it. But all that was in the context of a contest before the House.)

In other words, the crucial distinction seems to be that in 2006, a contest wasn't, and isn't, pending in the House -- and the House Oversight Committee hasn't done anything, and as far as I can tell has no standing to do anything.

Right, we're both just trying to sort this stuff out. I've thought more about special elections and House contests in the last week than in the rest of my life.

[eomer]

30. What puzzles me about Bilbray, though, is the conclusion that state

legal proceedings are mooted by a swearing ceremony (if I understood it correctly). State proceedings weren't mooted by the swearing ceremony in Tataii v. Case. Is it the swearing ceremony together with the absence of a contest in the House and then finally the expiration of the deadline to file a contest in the House that moots it under state law? I guess there would be some logic to that.

[OnTheOtherHand]

31. I think that's roughly it

IIRC Tataii had already contested the election. (Also IIRC, when Sanchez was sworn, some Republican actually stood to make the point that the election was contested -- whereupon a Dem, perhaps Steny Hoyer, stood to make the point that Sanchez had been certified the winner.) So it was clear under House rules that swearing in Case didn't waive Tataii's rights under FCEA.

As I understand it, Busby couldn't actually and formally have contested under FCEA until either the state certified the result or Bilbray was seated. So I think that supports your clause "and then finally the expiration of the deadline to file a contest in the House." But we haven't found a case that would test that theory.

[eomer]

25. With regard to Tataii v. Case and jurisdiction

There was a complaint proceeding before the state supreme court at the same time that there was an election contest pending in the House. You can see that from the timeline in my post upstream. The supreme court issued a ruling, as did the House. They were both against Tataii so there was no clash between them that would need to be resolved.

This case is a bit difficult to follow because there were two special elections (one for the remaining term after Patsy Mink died and the other for the next two year term since Patsy Mink was deceased at the time she won the November election) and there were multiple lawsuits. So I tried to extract the events that related directly to the contest in the House, which was about the second special election for the full term. Let me know if I messed up but I'm pretty sure there were parallel proceedings.

[OnTheOtherHand]

28. I agree with that

The House didn't ultimately reject Tataii's contest until after the final resolution of the HI Supreme Court case -- consistent with the principle of deference you mentioned above (although I can only speculate as to the import of the timing).

[eomer]

20. Correction #2: another election contest in 1994

Anderson v. Rose - 1994, 7th Congressional District of North Carolina

http://thomas.loc.gov/cgi-bin/cpquery/?&dbname=cp104&sid=cp1045HUNm&refer=&r_n=hr852.104&item=&sel=TOC_62677

Apparently the C-SPAN article I relied on is incorrect when it says "Prior to the Dornan v. Sanchez contest, the House last considered a contested election in 1985: McIntyre v. McCloskey in the 8th district of Indiana".

Ok, so I don't really know how many contests there have been.

List of contests I know of so far:
Tataii v. Case - 2003
Dornan v. Sanchez - 1997
Anderson v. Rose - 1994
McCloskey v. McIntyre - 1985

[OnTheOtherHand]

22. and this contest is described as "the last..."

"the last of such contests to be resolved by the Committee arising out of the November 1994 Congressional elections, all of which were brought by disappointed Republican candidates." (your link)

I suppose this underscores that Busby had recourse under the FCEA, if she had wanted to challenge the outcome in the House. AFAICT in the Rose case, North Carolina decided to certify the results in late November, so there was no conflict between the state and the House. What if the case had been active on the state level? House rules are (or at least have been) explicit that "the swearing in of a Member-elect to a contested seat is not a final determination over the right to that seat under the Federal Contested Elections Act" ( http://www.rules.house.gov/POP/pop107_01.htm ) -- so presumably state action could have proceeded without running afoul of the Constitution, until such time as the House made a final determination.

It's not clear (at least to me) whether the House could have opted to seat Bilbray conditionally even if no candidate contested under FCEA. If so, then presumably state action could have proceeded.

[rumpel]

29. but it was not contested 7 days after the elections..

but since Busby did not want to and the case was by and for the citizens, who wanted in principle to verify the results of the election,
it is still odd that it had to immediately jump into the territory of constitution - before the citizens of the state got to have a say at all within the state.

In other words -
if the citizens can not go to court to have the election laws rules and guidelines enforced -
and when the registrar ignores your right and sends in the result to SOS -
the SOS can do as he pleases

do the citizens vest so much power in the registrar and the SOS?

I still think a valid case can be made that the House of Rep. interfered with the State

[OnTheOtherHand]

32. yes, certainly the House interfered with the state

I haven't seen any evidence that it was a power grab by the House Republicans. I'm not going to start calling Pete Stark a DINO just because he politely introduced whoever it was who introduced Bilbray after he was sworn in. It seems to have been a run-of-the-mill high-speed swearing in after a special election.

I don't have a bottom line on Mikel Haas, but I won't fault him for sending the results to the SOS; again, that is standard operating procedure.

Masochistic honesty compels me further to take exception to this formulation: "the case was by and for the citizens, who wanted in principle to verify the results of the election." More specifically, two citizens contested the election, and of course some others supported that contest. I cynically suspect that if the partisan labels were reversed, most DUers -- maybe even most people here -- would be ringing changes on 'Those damn Republicans, twisting the election fraud issue for their own purposes, it's a dress rehearsal for utter mayhem when we win back the House in November!' There is a balancing issue between the citizens who contested the election outcome and the citizens who didn't.

IMO we need verifiable elections including a strong routine audit system, so no one has to depend on political decisions about to "contest." Of course, no such system is perfect. (I will also point out that there are other provisions under California law to obtain recounts apart from a "contest.")

[eomer]

34. There is also a balancing issue between the citizens and the candidate

and the problem in CA-50 emanates from the fact that the balance is tilted toward the candidate.

If the candidate had been the one disputing the election then the jurisdiction problem would have gone away (assuming the proper legal filings had been made by the candidate, including filing a contest with the Clerk of the House).

Citizens are not allowed to file a contest in the House so there is no way for them to keep the issue pendent past the House contest filing deadline. Only a candidate can do that.

Some citizens are not happy with the balance that has been struck.

[OnTheOtherHand]

35. yes, that's very true -- and between legislative and judicial branches

I don't think there is One Right Way to describe the issue, although yours is very important: citizens per se don't run the show.

[JimDandy]

33. To sustain a democracy,

the focus of elections must be on the election process, not on the results. What if we restructure our elections in the U.S. by turning them into a two-phased process? In the first phase, we would look at the election process itself to determine whether or not the election was fair, accurate, complete etc. If it was, we certify the election process. Then, and only then, do we proceed to the second phase -- tabulating the votes and announcing the winner based on certified results (no unofficial results allowed.) If the process is not certified, then no determination of a winner is allowed and the election is redone.

With this type of election process, we would no longer have to go to court to beg a judge for access to election records or to ask for reasonable fees for them -- the RoV would be required to make all the election records public in order to reconcile and certify the election process. It would also make the jurisdiction problem moot, because the House couldn't get results to seat a "member," until after the election process itself was certified as fair and accurate.

How's that for a dream?