Congressional Election Nullified – Nobody Noticed (Busby\Bilbray)

[WillyT]

Mods: "Copyright: This article may be used in whole or in part with attribution to the author and a link to “Scoop” Independent Media."

Congressional Election Nullified – Nobody Noticed

Friday, 25 August 2006, 10:45 pm
Article: Michael Collins

Speaker of the House Nullified
San Diego Congressional Race

By Michael Collins
“Scoop” Independent Media
Washington, DC

It appears the US media overlooked one of the great political stories of the year. In what is becoming something of a pattern, here’s a brief chronology:

On June 6, 2006, Republican Brian Bilbray allegedly slightly outpolled Democrat Francine Busby in the special election for California’s 50th Congressional District, despite Busby’s lead in the polls going into the election. There were immediate cries of foul following the election due to major irregularities, including electronic voting machines sent out to the homes and cars of volunteers for up to 12 days prior to the election, and irregular election results like huge mega-precincts of absentee ballots where turnout was thousands of percent more than registered voters.

On June 13, 2006, Bilbray flew to Washington, DC and was sworn in as a member of the United States House of Representatives by House Speaker Dennis Hastert.

On or about June 30, 2006, 17 days after Bilbray was sworn in as a member of the House, Mikel Haas, Registrar of San Diego County, officially completed the audit of election results required for certification, and officially certified the election of Bilbray over Busby based on 163,931 votes cast, of which 2,053 votes were said to be cast on Diebold TSX touchscreens, and the remainder scanned via Diebold Accuvote OS computers.

On July 31, 2006, the Contestants filed an election contest, seeking a hand recount and to invalidate the election on several grounds, not only including the affirmative evidence of irregular results, but also including the stonewalling of citizen information requests and the pricing of recounts at an estimated $150,000 that made it difficult or impossible for any citizen to tell who won the election.

On August 22, 2006, the defendants moved to dismiss, arguing that the swearing in of Bilbray deprives everyone else of jurisdiction including specifically the San Diego Superior Court because Art. I, sec. 5 of the US Constitution has been held to mean that the House and Senate are the judges of the Qualifications of their Members, one of those qualifications is supposed to be “election.”

There is some thing very wrong with this sequence. Elections are not complete, anywhere, until they are officially certified by local authorities. How can a citizen get sworn in as a member of the House of Representatives before his or her election is certified? Only Speaker Dennis Hastert, his team, and Bilbray have the answer.

In a filling in San Diego Municipal Court yesterday, attorney Paul Lehto outlined the core in stark terms:


Defendants are in effect arguing for the remarkable proposition that unilateral self-serving actions by a majority party in the House of Representatives to shuttle in a member of the same party can be effective, even if those actions do violence to and amount to circumvention of other sections of the US Constitution as well as the California constitution. Document available here.

Lehto is one of the two attorneys representing citizens who are challenging the election. Shortly after the last vote was cast, citizens discovered disturbing facts. Prior to Election Day, several poll workers had taken home voting machines for periods of a day to a week at a time without supervision or even consistent tracking procedures. Other irregularities like vote switching on touch screen machines emerged. Brad Friedman of www.BradBlog.com conducted an extensive investigation that uncovered a series of sloppy procedures by County Registrar Haas.

The election became an immediate cause for citizens, supporters of the losing candidate, and national voting rights activists. The results were also challenged by Howard Dean, Chairman of the Democratic National Committee.

A suit was filed by two local citizens challenging the election. The initial filing relied on the right of citizens to know that their votes are and counted correctly in order to assure that the candidate designated as the winner is in fact the winner. Part of the suit is a request, denied to date, for a recount of the ballots cast on Election Day.

In response to the suit, the County of San Diego filed a response questioning the authority of the local court to decide the case since (a) membership in the house was the province of the House of Representatives and (b) the speaker had already sworn in Bilbray.

Lehto and Simpkins filed a withering response to this argument. They point out that elections are the province of local and state authorities for all elections including federal contests, unless otherwise specified in the constitution. The following is form the filing yesterday:


Clearly, the swift swearing in did not end the election in the 50th Congressional District, and it did not render everything, including the certification of results weeks later, nugatory and without “jurisdiction.” If this swearing in had this effect, then in the course of dismissing this case the Court would be bound to conclude that the certification of the results after the swearing in of Bilbray was without force and effect, without jurisdiction, and in contravention of principles of federalism, as Defendants argue. That conclusion, however, requires either an absurdity, or the conclusion that our Congressional election was canceled by decision of the Speaker of the House, before all the votes were fully counted, and well before certification. Document available here.

So there you have it. Dennis Hastert, Speaker of the United House of Representatives, called “the peoples’ House,” now has the authority to nullify elections simply by swearing in candidates and claiming federal privilege based on one narrow section of the constitution, while completing ignoring the others, including the one stating that members of the House shall be elected every two years “by the People,” and not selected in Washington DC. Once again, the country is faced with a Bush v. Gore style selection manufactured in Washington DC, and if only the people did not know which party benefited and which party was hurt by the selection, the country would be unanimous in denouncing this power grab.

Ongoing support and interference by the House of Representatives or persons associated therewith continues in San Diego. Paul Vinovich, Counsel to the House Administration Committee, Chaired by Bob Ney, R, of Ohio, had a letter delivered to San Diego Superior Court presiding Judge Yuri Hoffman, with a number of arguments in favor of the Judge dismissing the case. This type of communication with members of the judiciary, particularly when another government authority is involved, is covered by strict rules. One such rule is that the ex parte communication be provided simultaneously to counsel for all involved. In his own hand, Vinovich says to plaintiff’s attorney Lehto, “Letter delivered to court last evening.” Lehto received the fax at 8:56 a.m. Thursday morning, many hours after the letter was admittedly provided to the judge by Vinovich.

In the letter, Vinovich admits the time sequence of a July 13 swearing in followed by a July 29th certification of the election and then, through circular reasoning, tries to use the certification as justification for the swearing in ceremony. He fails to note that Speaker Hastert would have needed psychic powers on June 13th to know that the swearing in of Bilbray would be justified by a June 29th certification.

We’re clearly at the point where members of the ruling party are making up rules post hoc to justify whatever actions they wish to take. We are also at a point where there is little if any opposition to this. The House is silent. With the exception of local and national voting rights activists and Chairman Dean, the opposing party is silent. The Defendants literally argue that the Courts are powerless to stop them (without jurisdiction). Friday will reveal whether the courts are powerless to stop this abuse of power and premature termination of elections.

Will Judge Yuri Hoffman carry on the emerging tradition of silence, or will he take us back to the courage and integrity shown by Judge John Sirica, a Republican appointee, who made history by demanding the truth from the Watergate burglars?


*************
Copyright: This article may be used in whole or in part with attribution to the author and a link to “Scoop” Independent Media.

***END***

Link: http://www.scoop.co.nz/stories/HL0608/S00316.htm

We should see what the judge has to say this afternoon. Heraing set for 1:30pm PDT.

:shrug:

[stopbush]

1. Following the defendents' logic, Hastert could swear in anybody, anytime

to serve in the House.

[WillyT]

2. Right Now... It's Looking Like He Can !!!

Hopefully this judge will show some real courage in this case, and do the right thing.

Funny... doing the right thing takes way more courage now than it used to.

:shrug:

[liberaldemocrat7]

48. Illegitimacy

[autorank]

79. Right,and thank you WillyT for running this!!!

They could swear anyone in. Heck, we could just bypass elections altogether.

Have dollars considered votes and let the biggest donor "vote" him or herself into office by
a landslice. The Speaker could have a big suit case and the "elect" could just dump in cash.

You can be sure that the House Republicans knew that there were protests after the election and you
know that they noticed Brad Friedman and www.Bradblog.com making big noise. What's the answer?

Speaker: "Get Bilbray here right away. I don't care if he's going to Baja. Get him back her now!"

Here's theinteresting thing about the case in CA:

- if Hastert knew that the certification wasn't done, then the swearing in was bugus;

- if Haas, the San Diego Registrar knew that Bilbray was sworn in without certification, then
certification was bogus to certify.

In the case, the Registrar seems to say, don't recount because Bilbray was already sworn in. As Lehto
(Land Shark) points out, if Haas knew that, he was obliged to inform the public when he certified that certification was meaningless since the Republican was already sworn in.

Nice deal isn't it. Power grab a gogo.

Here's the link for Lehto's statement to the court and the letter from lawyer on the House Administration Committe: http://electionfraudnews.com/SpecialContentPages/Election.Challenge.htm

[slackmaster]

97. Statements made by lawyers need not be defensible or even logical

This thread amounts to a lot of fuss over an attorney doing what trial lawyers are paid to do - Exercise any and every lawful strategy to keep their client off the hook. This is a good example of an aggressive defense taken to a point that IMO any reasonable person, and hopefully the judge, would find absurd.

[ComerPerro]

101. he might start doing that in Bush's 3rd term

[bluerum]

3. They can swear in someone whose election has not been certified,

but,,, an election can be nullified because a financial disclosure was filed late?
Check this thread.

Waiting to hear how the judge rules on this.

[WillyT]

4. Yep... I Posted One On That Case Too !!!

Link: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x1980568

:hi:

[Peace Patriot]

5. More discussion of this at...

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x1980238

Read about the outrageous insecurity of Diebold voting machines, the outrageous SECRECY of Bushite corporate vote "counting," and the outrageous behavior of SD/Calif (Schwarz/Diebold) election officials and of Bushite House Speaker Dennis Hastert in swearing in Busby's Bushite opponent, Bilbray, BEFORE his (s)election was even certified, and then coming back and arguing (in this lawsuit against them) that Hastert gets to choose who sits in Congress!

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

Bust the Machines--Vote Absentee this November! If enough people do it (and many are--it's up to 50% in Los Angeles) the tyrannical reign of Bushite-controlled electronic voting machines is OVER!

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

Reminder: FRANCINE BUSBY is up against Bushite Bilbray and Bushite-controlled voting machines again this fall...

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x1982202

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

VOTE FOR DEBRA BOWEN for CA Secretary of State--against Diebold shill, and Schwarzenegger APPOINTEE, Bruce McPherson (who ILLEGALLY RE-certified Diebold touchscreens after they had been de-certified by the prevous Sec of State, Kevin Shelley, who was then unfairly driven from office on BOGUS corruption charges). (God, the assault on our election system is unending!)

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

Bushites only rule by appointment, by fiat of corporate news monopolies, and by stolen elections!

[EFerrari]

6. How about everyone please send this story to one radio guy?

Let's get it beyond these internets! I sent it to 20 media folks this morning.

Send it to Mike! To Tom! To Randi! SEND THE MUTHA!

THANKS, WilyT!

:hi:

[proud patriot]

13. Sounds good

We need to get word out about this .

[EFerrari]

20. It's easy! Just mail autorank's article or brad's. That's all!

No salesman will come to your door.

Please just mail it to your favorite radio dude or dudette!



:)

[EFerrari]

7. Get back up there. DUer Landshark in Court in 1 hour.

Go, Landshark!

:kick:

[lonestarnot]

8. Kick'n and spitt'n all 4 threads!

[mod mom]

9. Sending good karma Landshark's way!

[slackmaster]

10. I have to ask one outside-the-box question here

Did Hastert know the election had not yet been certified when he swore Bilbray in?

That would matter in a sense, but other than the improper sequence of events I don't see any indication of a genuine, lasting usurpation of power here. The election has been certified. Bilbray did get the most votes, and Busby will get another chance to beat him in November.

[EFerrari]

11. The order matters. Hastert has no business swearing in someone

who hasn't been certified.

Or, he could swear me in and CA could go take a hike. :)

[slackmaster]

14. I'm struggling to see what irreversible damage would have been done

Had the reported, widely assumed election result turned out to be incorrect. If the election result got overturned, surely Bilbray would have been forced to step down and presumably run again in November. But that didn't happen. Things were done out of order. That may have been an intentional act of arrogance or it may have been simple stupidity, but there is no reason for anyone to spin this as the end of Democracy as we know it.

As a resident of CA-50 I think I am qualified to say that whatever harm was done by the clearly premature swearing in pales in comparison to the damage done by Duke Cunningham - I and a whole bunch of other people here were the only truly injured parties in this whole affair, living without representation in the House of Representatives for months. We were suffering tangible harm every day, every hour that went by without representation.

[EFerrari]

16. We don't need widely assumed election results.

We need election results.


We don't need members elected by Republican mandate, we need representatives.

As a resident of CA 50, you should be aware that CA has been targeted by the GOP from the rolling fake brown outs that lost us Davis, to the smear that cost us our Democratic Sec of State and now this little theft test run in CA 50.

The Bush "re-election" team has been here for months.

How many electoral votes do we bring to the party?

[slackmaster]

17. There was no theft in the CA-50 special election

It's long been a safe Republican seat. There would be no reason for the GOP to steal it. They won it fair and square. And we now have real election results.

How many electoral votes do we bring to the party?

For the GOP? Zilch, zero, zip, nada, goose-egg, squat, not even close; regardless of the outcome of CA-50.

[EFerrari]

18. Show me the votes. Show 'em if you've got 'em.

:)

[slackmaster]

19. Link to the official results

http://www.ss.ca.gov/elections/sov/2006_primary/secd50.pdf

The California state constitution empowers the Secretary of State to declare what numbers are the official result.

[EFerrari]

21. So, why are you linking to official results that you can't verify?

You trust officialdom?

You TRUST officialdom?

Why do you trust your vote to anyone? And why should you?

[slackmaster]

23. Why shouldn't I trust them in this particular case?

If I did have the actual votes in front of me, I wouldn't have time to count them all. A Republican winning an election in a district that has always elected Republicans makes perfect sense to me. At least Bilbray is generally a moderate.

We delegate that task to humans. You or me not liking the results doesn't make them any less real or less valid. If you don't believe the process is sound, then vote in some different humans.

[EFerrari]

25. I believe that we can make our elections transparent.

I believe that faith based voting breeds corruption. Secrecy always does.


I believe that giving in to a little infraction here is an invitation to a bigger theft later. If Dennis Hastert can pick you rep, who will pick your president?


I believe that no matter what the results, the democratic process is important, crucial if we are to remain a democracy.

I believe that the human beans in this here republic are perfectly capable of holding democratic elections. And when we do, I believe Democrats will win.

:)

[slackmaster]

26. I don't buy into the spin that Hastert "picked" my rep

I think Hastert and Bilbray can both be assumed to have known damn well the result was not yet official, but does that rise to the level of a criminal act? They also knew damn well that Bilbray was going to be declared the official winner. Can anyone legitimately say the premature swearing in ceremony did more harm to people like me than would have been done by leaving the district without a member of Congress for additional days or weeks?

I really didn't like not being represented, not having anyone to call or write to for help if I got into a jam with the federal government. That was Cunningham's fault of course, and IMO he is the only real criminal in this whole affair.

[EFerrari]

28. Tell you what, I'll swear you in now, hold the election later.

Feel better about your elections now?

There is a huge difference. If the seat is vacant, it's vacant.

It the Republicans can just take it, they can just take it.

[slackmaster]

30. Not the same thing at all, sfexpat2000

We really did have an election, actually had votes counted, before Bilbray was sworn in. If the result had been close you might have a point, but it was not close.

If the seat is vacant, it's vacant.

Having the seat vacant sucks donkey balls.

[EFerrari]

31. Well, not as far as I can tell from here.

Your machines were not secured.

Thousands of voters had trouble that night.


There is a little matter of all those absentee ballots that the opposition counted where there were no voters.

You didn't have a clean election. You had a theatrical production -- festooned with the bought print press here in California. I personally confronted a reporter in town who was braying, "It all went SO WELL!" when in fact just because I was working the ERD, I saw the smaller papers reporting trouble all over.

You nor I have any idea of how "close" it was. What we really do have is a lot of evidence of malfeasance.

So, no, you didn't have an election where voters got to make a choice that was recorded. That should be obvious by now.

[midnight]

67. Very good point.

Maybe the supreme court can pick the president?

[rumpel]

36. It is neither a repub or dem issue. The voting machines chain of

custody is at issue -

How can you trust the "official results", when the registar releases the voting untits to numerous people's private homes?

[FighttheFuture]

84. Move along people, slackmaster's ruled it clean, all over! After all,

we know how clean elections have been over the last 6 years with Rethuglicans in tight races, right?!

Slackmaster, you are a sucker and a dope!

[slackmaster]

92. Since you can't prove it WAS stolen you fall back on argumentum ad hominem

Slackmaster, you are a sucker and a dope!

Perhaps so, but prevailing opinion agrees with mine, Brian Bilbray is in Washington, DC, most polls before the election showed Bilbray as the likely winner, and not even Francine Busby herself is saying the election result is incorrect. The election wasn't "tight"; it wasn't even close.

That leaves you with nothing but name-calling and conspiracy theory. Your position is weak.

[OzarkDem]

51. You are exactly right

California has been targeted by the GOP for a very long time. No dirty trick or illegal act should go unpunished.

Why would anyone want to let the GOP get by with dirty tricks? Make them accountable.

[EFerrari]

59. Thank you! It stinks of Republicans already!

:)

[slackmaster]

99. Why would the GOP try to steal a district they already control?

Targeting CA-50 would make no sense at all. Remember, that's the district that repeatedly elected carpetbagger Duke Cunningham even after the first allegations of his corruption emerged in 2004.

[OzarkDem]

50. Slippery slope - Rule of law

It should never be acceptable for a Speaker of the House to swear into Congress a member whose election hasn't been certified. If Hastert didn't know, he sure as hell should have.

These are the kinds of laws that need to be upheld every single time, no exception.

[slackmaster]

93. What remedy would you propose for Hastert's error?

Since the election is now officially certified and Bilbray is the winner, reversing the outcome is out of the question. Would censure by the House be sufficient? Perhaps he deserves to be impeached, if someone can identify specifically what crime he committed.

Who are the injured parties BTW? Not even Busby herself is complaining about the improper sequence of events. The people of CA-50 were surely injured by not having representation in Congress all those months, weren't we?

[JimDandy]

38. I see -- so you espouse

"the end justifies the means."

[slackmaster]

42. No, I do not

:argh:

[rumpel]

39. FYI: DNC Voting Rights Institute

(Greg Moore is director of the DNC's Voting Rights Institute.)

On the facts:

We know for a fact that San Diego County election officials have admitted that a number of the voting machines were taken home in violation of the federal security regulations and guidelines and that a number of the machines showed evidence of tampering (broken seals, which should also have immediately disqualified those machines from use according to state laws implemented in just the last several months in response to new severe vulnerabilities discovered Diebold's optical-scan and touch-screen voting systems.)

We know that under state and federal guidelines, any such breach of security seals or the new "secure storage" requirements for these machines and their memory cards should have immediately disqualified those machines from use in the election for the reason that they became effectively decertified for use upon such security and chain of custody violations.

We also know that both the Diebold optical-scan and touch-screen (DRE) machines have been proven to be vulnerable to tampering in test after test by industry experts, including a team of computer scientists and security experts convened by California's Secretary of State in response to recent revelations concerning the hack ability of Diebold voting systems.

We know that serious security issues and efforts by Diebold to obfuscate problems with their hardware and software led California’s former Democratic Secretary of State to decertify Diebold touch-screen systems in 2004, only to have the Republican Secretary who succeeded him reinstitute the machines over the objections of scores of computer scientists and experts and hundreds of election integrity advocates.
The San Diego County election official responsible for administrating post-election manual vote counts has given three different arbitrary cost estimates for conducting the hand count. The quoted fees are as much as six times the costs estimates for similar hand counts in surrounding counties. The estimates portray the expense of a manual vote count to be cost prohibitive.

This is no longer about whether or not Busby or Bilbray won the election on June 6th. This is about the importance of verifying the facts related to election and voting machine irregularities in this race and the need to ensure an accurate count of all votes cast in this election so that the electorate may have confidence in the announced results in future elections.

http://www.democrats.org/a/2006/07/dnc_voting_righ.php

[slackmaster]

43. Yes, I have read that

It's really a separate issue from the topic at hand, and I agree that BOTH problems need to be fixed immediately.

[emlev]

69. You may have info no one else has--will you divulge?

You say Bilbray got the most votes. I'm wondering how you know that. Even the Registrar of Voters doesn't. Do you work for Diebold, by any chance?

Seriously. Nobody knows who really won this election. There was means, motive and opportunity for tampering with the election and the RoV has so far refused to hand count the paper, which is the only way we can really know. Unless you work for Diebold.

[slackmaster]

95. What do you mean the Registrar doesn't know it?

He has certified the election result.

Do you work for Diebold, by any chance?

No.

There was means, motive and opportunity for tampering with the election and the RoV has so far refused to hand count the paper, which is the only way we can really know.

Motive, means, and opportunity are not sufficient to establish that a crime has actually been committed. Those are always present in any election regardless of the voting and tabulating systems in use. California law specifies the conditions under which a manual recount must be initiated. Those conditions have not been met. That's why the RoV has certified the election. The result isn't close enough, and people who want a full recount haven't presented enough evidence of tampering to have materially altered the outcome of the election.

Unless you work for Diebold.

How would someone who works for Diebold know something the RoV doesn't? What information would the manufacturer of the machine have access to that the end user does not? The machines are not in Diebold's custody. I think your tinfoil hat needs to be adjusted.

[Land Shark]

72. "outside the box"? You're inside the box that says if the Republican

registrar "certifies" that the Republican candidate got more votes, then, by George, Mr. Bilbray *got* more votes and you can write that down on DU as an unimpeachable fact. Huh?

That's just like "if we swear him in, then he *is* the Congressman."

[autorank]

81. Hey Shark, interesting how threads on this topic get such resistance...

People quibbling about four or five words in the article that are entirely irrelevant, going on and on (not on this the race, but this one here and here .

Now more on this thread...to me the key points in the article, and I might know since I wrote it,
are 1) the swearing in sequence and 2) the interference from the House of Representatives via an
ex parte communication to the judge; which, in addition to the appropriateness of that, was
delivered late to you, the plaintiff's counsel. Am I on point here Shark?

[slackmaster]

96. Where did I say it was an unimpeachable fact?

Clearly people are impeaching it all over this thread. That doesn't mean they're right. The whole thing boils down to Hastert conducting a swearing-in ceremony prematurely. That was wrong. He shouldn't have done that. It doesn't mean the wrong person is sitting in the CA-50 seat in the HoR.

[babylonsister]

12. The media overlooked a great political story?

Really? Say it isn't so! I'm shocked!

[proud patriot]

15. Astounding isn't it ?

:sarcasm:

[autorank]

82. Amazing...they could take this word for word and put their names on it

(well, they'd clean up the typo or two;) and I would be thrilled, wouldn't gripe one bit as long as it was accurate.

I wrote this on the Hackett race against Schmidt way back. I took a few days and begged people to just take all or part of it, all referenced in detail, and use it as the basis of stories. Said I wouldn't publish it, in that case. No takers. It's pretty decent research and I had primary material/references. No takers.

So this one, well...we'll see.

[FighttheFuture]

85. No dead white blond girl was involved, so no story of import!

[slackmaster]

98. As far as the media is concerned, election ended when Busby conceded

On the evening of June 6, 2006 - A significant event that is conspicuously missing from the timeline presented in the OP.

[JimDandy]

22. Clearly an election contest has to be completed

in order for there to even be a "member" of the House. And the only way to complete an election is for it to be certified. The House simply jumped the gun trying to "judge" an election which was not even completed. This is not about wresting the control of an election from the courts -- it's about wresting elections from THE PEOPLE.

[Kurovski]

24. K&R.(nt)

[Mayberry Machiavelli]

27. Long post, I'm a bit confused. WAS it in fact nullified, or not?

Or is it pending judge's ruling etc.?

[slackmaster]

29. No, it was not nullified

The subject line is hype.

[EFerrari]

32. Nice spin except it won't fly to anyone that reads this thread. n/t

[JimDandy]

35. Yes, the election process WAS nullified

on June 13, 2006 when Hastert illegally interfered with the election process in San Diego.

That his actions were illegal is not the worst of it. Nullify means: "to make unimportant, useless, meaningless." Hastert single-handedly made our elections process MEANINGLESS by replacing the will of the people (unknown at that time) with his own will.

[rinsd]

37. Not nullified, that is political language by EV activists

In effect, the defense in this case (Bilbray and the Registrars) office filed a motion to dismiss lawsuits to overturn or decertifiy the election based on the fact that Bilbray has already been sworn.

[EFerrari]

60. So, what would you call it when a candidate is SWORN IN

without being certified first?

Without certifying the ELECTION FIRST?

A baptism?

What are you waiting for, a teevee commercial that announces, "Sorry, kids, elections are off! Have a nice day!"

That's just our LANAGUAGE?

lol

[slackmaster]

94. On the surface it appears to be a fuckup

It's not part of some broad, dark conspiracy.

[rumpel]

40. Here it is:

Brief Summary: BASED ON THE DEFENDANTS' MOTION TO DISMISS FILED AUGUST 22, the defendants are effectively claiming that they took all power away from the people of San Diego's 50th District when Bilbray was sworning in during a rushed ceremony only 7 days after the June 6 election, because defendants now claim that this act deprived San Diego Superior Court of jurisdiction under Art. I, sec. 4 of the Constitution. But if this is true, then it is also true that Registrar of Voters Haas was powerless to certify the election itself, and thus the election legally never happened. A new election would thus have to be ordered.

and the response excerpt:

THIS COURT HAS JURISDICTION OVER THIS ELECTION CONTEST
This case involves the question of whether a electoral choice was made by the people of this
State in the 50th Congressional District, and if a choice was clearly made, what that choice was.
Defendants argue that the rushed swearing-in of Bilbray only seven days after the election and
weeks prior to certification somehow deprives this Court of “jurisdiction.” Defendants are in effect arguing for the remarkable proposition that unilateral self-serving actions by a majority party in the
House of Representatives to shuttle in a member of the same party can be effective, even if those actions
do violence to and amount to circumvention of other sections of the US Constitution as well as the
California constitution. The federal Constitution, after all, clearly commits the time place and manner of
elections to the States, including California. Thus, the question presented is whether a premature
swearing in of Brian Bilbray by the House of Representatives terminated the election processes of the
State of California, even though the US Constitution specifically provides that the State control the time
place and manner of federal elections.

Clearly, the swift swearing in did not end the election in the 50th Congressional District, and it
did not render everything, including the certification of results weeks later, nugatory and without
“jurisdiction.” If this swearing in had this effect, then in the course of dismissing this case the Court
would be bound to conclude that the certification of the results after the swearing in of Bilbray was
without force and effect, without jurisdiction, and in contravention of principles of federalism, as
Defendants argue. That conclusion, however, requires either an absurdity, or the conclusion that our
Congressional election was canceled by decision of the Speaker of the House, before all the votes were
fully counted, and well before certification.

The time place and manner of voting is committed to the State of California under the US
Constitution pursuant to Art. I, sec. 4. No court nor indeed any reader of the Constitution can ignore its
other sections that are relevant, but Defendants do so by focusing exclusively on Art. I sec. 5 when
several other sections are highly relevant. Because these other sections are largely ignored, the position
reached by Defendants is in conflict with or in tension with these other sections of the US Constitution
as well as with the California Constitution and its election contest statutes, which are accorded
constitutional dignity in the federal Constitution by its commitment to the several states of controlling
the Time, Place and Manner of federal elections, under Art. 1 sec. 4.
The various other provisions and rights that must be simultaneously considered by the Court
along with Art I, sec. 5 are as follows:

1. The Right to Vote is a Fundamental Constitutional Right, and Includes the Right to Have That
Vote Properly Counted. The Contestants in their trial brief quoted US v Classic: “The right of qualified voters within a state to cast their ballots and have them counted at Congressional elections . . . is a right
secured by the Constitution” and “is secured against the action of individuals as well as of states.”
(United States v. Classic, 313 U.S. 299, 315, 85 L. Ed. 1368, 61 S. Ct. 1031 (1941).) Under US Supreme
Court authority such as Wesberry v. Sanders, the right to vote in order to be meaningful means the right
to have that vote properly counted.

and this is just the first pages here is the entire text:
http://www.nosleepovers.org/CA-50%20Docs/CA_Opposition_to_Haas_P_A_1_.pdf

[JimDandy]

41. rumpel, has the defendant's actual motion to dismiss

been posted anywhere? Been searching, but can't find it.

[rumpel]

44. Have not either

we'll probably have to ask landshark - let me check Brads' post

[rumpel]

45. maybe it's legality issue?

Not being allowed to post their briefs? or is it public domain - once filed?

:shrug:

[JimDandy]

47. It's public domain. I've viewed motions

in my state immediately after they were filed. Sometimes have had to wait a few hours to get copies, though.

[rumpel]

49. I am on the SD court site

this is the calendar of Yuri Hoffman (judge) today

http://www.sdcourt.ca.gov/portal/page?_pageid=53,128297&_dad=portal&_schema=PORTAL

it appears to be a countersuit? Plaintiff is opposing counsel "Simpkins"- just can not find the doc yet

01:30PM GIC870044 Motion Hrg JACOBSON, BARBARA GAIL vs BILBRAY, BRIAN P
(P) SIMPKINS, KENNETH L.

[JimDandy]

53. Try here:

http://www.sdcourt.ca.gov/portal/page?_pageid=53,128288&_dad=portal&_schema=PORTAL

The files are zipped though and I can't get the 24 Aug or month of August ones to unzip to see if the motion is in one of those files.

[rumpel]

54. on Bradblog:

http://www.bradblog.com/wp-content/uploads/CA%20Opposition%20to%20Haas%20P&A%5B1%5D.pdf

Opposition have not read it myself yet...

ah, this is in opposition to: Haas answer

[JimDandy]

55. Many thanks!!! n/t

[rumpel]

56. No, I think it is our side opposition to Haas...

:(

[JimDandy]

57. Yes. I read this earlier today. I'll keep looking, later.

Dinner time right now. Thanks for your help searching!!

[rumpel]

58. On bradblog it was supposed to be even a letter

see this

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x1984847

[Land Shark]

71. I have it only in a 10MB+ file and need to compress even to transmit!

[JimDandy]

80. That's always my hang point -- the 10MB email attachment limit.

I wish I could have been there in court. According to Judy Hess, your arguments were not only terrific but their presentation was so awesome it nearly brought her to tears.

GO LANDSHARK!!!

[lonestarnot]

33. kick

[EFerrari]

34. good idea

:kick:

[JimDandy]

46. Kick n/t

[rumpel]

52. Bradblog: LIVE UPDATE: We have recently received the following email from

Paul Lehto:

Hi. I'm in the courtroom right now after meeting with the judge in chambers with all counsel to decide how this is going. We have wifi from a hispeed cell on this laptop. We're on a ten minute recess, then the judge will hear on our Constitutional issues (or rather the defendant's motion) only, because it goes to the predicate issue of the court's authority to proceed. On Tuesday, the court will hear the anti-SLAPP motion brought against the citizen Contestants, our discovery motions, and issues regarding the recount availability.
The issue is joined, directly on the authority or power of the Court to proceed. Can the Court protect our elections, or not?

You can blog this update if you like. Will try to give this to Ken and perhaps he will email some updates along the way if this battery holds up. We'll see.

http://www.bradblog.com/?p=3325#more-3325

[EFerrari]

61. Go, Landshark! Thanks, rumpel, so much.

:kick:

[OPERATIONMINDCRIME]

62. Thanks For The Update! My Fingers Will Remain Crossed!

[proud patriot]

63. Thanks for the update

:hi:

[rumpel]

64. welcome all - my fingernails are pretty much chewed off -

just kidding...

[EFerrari]

65. Me, too! It's not every day that we take on FELONS

who want us to give up our election rights, inch by inch.

Thank you, rumpel, for your updates today!

:applause:

:toast:

[rumpel]

68. felons of theft of democracy

cheers to all -

The People will prevail!

[Wilms]

66. Auto, thanks for the hook-up. K&R n/t

[lonestarnot]

70. kick!

[Seabiscuit]

73. The problem with the way this story is presented

is that it pretends that the absurd arguments by the defense are already law: e.g., "Congressional Election Nullified – Nobody Noticed (Busby\Bilbray)" which is simply not true - the trial judge hadn't even ruled yet, nor has the case finally been decided on appeal. The election has NOT been "nullified".

Since the story and its title is so misleading it should not have received any "recommendations".

[EFerrari]

77. That's backwards, I'm sorry. The election was nullified when

they swore in a member without first certifying the election.

And, the judge wouldn't even BE ruling unless this point was brought home in a court of law.

[Seabiscuit]

89. Wrong.

Swearing in Bilbray prematurely did NOT "nullify" the election. The election is still alive and kicking in the court system.

Yes, it was a procedural mis-step, and a common rule-breaking procedure employed by the Repukes.

The rule was broken, but not the election. The swearing in did not break the election, it violated a procedural law and created one of the legal issues in this case. Since the suit was brought and since the court is hearing the case, the election was never "nullified".

The word "nullify" is what is misleading. To "nullify" something is to COMPLETELY destroy it. A "nullity" is a "nothing". Something which CEASES to exist. This election never ceased to exist as a legal matter.

[EFerrari]

90. Yes, they did seek to nullify the election by swearing in

a candidate whose election was not certified. And they also sought to prevent any court from having jurisdiction so no case could be heard.

You are saying that because there is a court case, the election was never nullified. And that is exactly backwards.

And yes thanks, "nullified" is in my Oxford.

[Seabiscuit]

91. "seek to" does not equal "did".

There is nothing "exactly backwards" about "saying that because there is a court case the election was never nullified."

You apparently don't understand the law or legal procedure.

If the election was "nullified" it would have essentially been cancelled, dead as a door nail, forever, forever, forever dead, dead, dead.

The fact that it is alive and still well in the legal system flatly contradicts that notion.

Legal arguments made at the beginning of the court case are merely arguments - you can't pick one out (the way you have with the swearing in issue) and say "Bingo! Game over!" the way you have. It's not just illogical, it simply isn't the way election law/courts work.

[Land Shark]

74. Arguments completed, case taken under advisement, decision Tuesday 130pm

These guys covered the story, but didn't make it to the arguments nor read the briefs. But they do add an additional fact that the Rep. SOS office in CA supposedly advised that Bilbray appeared to have won, presumably this makes the pre-certification swearing in AOK in their mind.

<http://www.nctimes.com/articles/2006/08/26/news/top_stories/21_14_458_25_06.txt>

on edit: i'm hoping some other coverage from someone who WAS there will come out today or is out, like rawstory. I think I'll check that out now.

[EFerrari]

76. We should be able to tell a great deal from how or if this gets

coverage.

[Raksha]

83. "Appeared" to have won?

Then why bother having an election at all if you're not going to wait until it's certified? I know, I know...it just has to LOOK like an election. It doesn't have to actually BE one. But can't they at least TRY to be a little more convincing? How are the voters supposed to have "confidence" in our election system if they can't put on a better show than that?

[april]

75. we should all send emails to

Dennis Hastert, Speaker of the United House of Representatives and the media and let them know that we are watching and outraged!!!

[EFerrari]

78. Welcome to DU, April. That's a good idea.

:)

[Rex]

86. They did the same kind of thing in 2000.

The tyranny of a few is amazing in America. Instead of having a fair election, the SCOTUS forced artificial time tables (as if those control democracy) so that the votes could NOT be recount in a timely fashion - by GOP design. Bush was sworn in before all the votes were re-counted and it later turned out he lost. Part of history that can't be argued (sorry lurkers).

This is tyranny by the few and Cheney/Scalia are part of the tiny circle that decides on how to run America. Hastert and Frist are also part of the few. So far they've done a horrible job.

[librechik]

87. they did the same thing for Beauprez in Colorado in 2002

bastards!

[JimDandy]

88. In many states, interfering with the voting process is a felony.

In this case Haas, McPherson and Hastert did just that. Why not ask the CA Attorney General to prosecute? Especially since, as LandShark pointed out, a "vote" is defined in CA statue as including the counting/tabulation of each vote.

edited to include vote definition

[Der Blaue Engel]

100. You know what makes me sad?

(Aside from the fact that this happened)...my liberal Dem and Green friends right here in San Francisco don't seem to know that the recount showed Gore won. I remind them all the time...and they still say, "that's not what I remember." :(