Narrowing margin in post-election canvass raises hopes for GOP/Conservatives, but recent Republican-set precedent may well dash that hope...
By Brad Friedman on 11/13/2009, 12:53am PT  

A potentially interesting situation is underway in New York's 23rd Congressional district where post-election canvassing of the recent Special Election for the U.S. House is still underway.

According to Syracuse's Post-Standard, the post-election canvass shows the race between Conservative Party candidate Doug Hoffman, who conceded on Election Night, and Democratic candidate Bill Owens, who was sworn in as the district's new U.S. Congressman last Friday, to be tightening as results are double-checked, errors are being found, and a few thousand absentee ballots are still uncounted.

The race, regarded by many as a a bellwether contest before next year's full Congressional elections, appeared to have swung in the Democrat's favor on Election Night, following the suspension of the campaign of Republican candidate Dede Scozzafava who threw her support to Owens after she'd dropped out just days prior to the election.

On Election Night, Owens was reported to be the "winner" by just over 5,000 votes, with 93 percent of the votes tallied, leading to Hoffman's concession. Since then, various errors have been discovered in at least two different counties, resulting in a gain of some 2,000 votes for the Conservative Party's Hoffman, bringing the latest tally to 66,698 to 63,672. Closer, now a 3,000 vote margin, but still favoring Rep. Owens.

There were, however, some 10,200 absentee ballots requested and distributed. And, as we understand New York's state election laws, none of them have yet been counted. Many of those ballots were purportedly cast when Scozzafava was still in the race. At that time, according to Hoffman's campaign at least, they might have had an edge in the then-three-way contest. So it's possible, though believed to be a long shot, that Hoffman could gain enough votes in absentees to eclipse Owens.

This scenario --- a Congressional candidate quickly sworn in, based on unofficial results shortly after a bellwether Special Election before all votes have been properly counted --- should be a familiar one to long-time readers of The BRAD BLOG. A very similar situation occurred in the 2006 race to replace the jailed Republican Rep. Randy "Duke" Cunningham in California's 50th Congressional district.

While Republicans who stood in support of the Conservative Party's Hoffman this year --- he was endorsed by the likes of Rush Limbaugh, Sarah Palin, Glenn Beck, Michelle Malkin and the Republican Party itself (only after Scozzafava was pressured to drop out) --- are finding some cause for optimism in the still-narrowing margin. Limbaugh certainly has, at least according to his breathless reporting of the goings-on in NY-23 on his show this morning.

But the legal maneuvering and judicial precedent that the then-Republican-led House pulled in the Summer of 2006, in order to keep votes from being counted in the CA-50 Special Election and, indeed, to keep the voters of California from even being able to contest their own election, should ensure that Hoffman can no longer, legally, take possession of the House seat via any challenge in New York --- even if he's eventually found to have received more votes than Owens!...

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Following the 2006 Special Election between Republican Brian Bilbray and Democrat Francine Busby, serious questions were originally raised by The BRAD BLOG about the legality of the electronic voting systems used in the race. The Diebold machines used, as we'd discovered, had been sent home with pollworkers for days prior to the election in what became known as "sleepovers". Those sleepovers effectively decertified those particular systems for use, given several findings and pronouncements by both state and federal officials following the discovery that the optical-scan systems in question contained computer code in violation of federal standards and state law.

Additionally, more than 50,000 votes had yet to be counted at all when the CA Sec. of State's office, then run by Republicans, hastily faxed a "certification" of the election, of sorts, to Congress, asserting that were no challenges to the election. That, despite the issues we'd very loudly raised about the unofficial results, and despite the fact that CA voters are allowed, by state law, to file a contest to any election in the days following official certification of any race.

A number of election integrity groups had issued statements of "no confidence" in those election results, the story was picked up by a number of print and broadcast MSM outlets --- the Washington Post asked "How could this be allowed to happen", CNN's Lou Dobbs called it "a threat to American Democracy," the Sacramento Bee reported the election showed "the threat to democracy is very real," among many others --- and the DNC's Voting Rights Institute itself even called for a full "manual count" of all ballots in the race. That count would never be allowed.

Then, as now, the candidate believed to be the "loser" --- Busby in that case, Hoffman in this one --- had conceded before all the votes had been counted. Then, as now, the state sent notice to the U.S. House Clerk based on unofficial election results before all votes were counted, attesting to the name of the "winner" and that the race had not been contested. Then, as now, the "winning" candidate --- Republican Bilbray in that case, Democrat Owens in this one --- was quickly shuttled to D.C. to be sworn in by the Speaker of the House. Back then it was Republican Dennis Hastert. This time it's Democrat Nancy Pelosi. Owens vote in favor of the House Democrats' Health Care legislation proved vital on Saturday, following his swearing-in just one day earlier.

The bad news, however, for now-hopeful Republicans/Conservatives is that when the results of the Busby/Bilbray race were contested by a California voter, the Republican-leadership of the U.S. House Administration Committee sent a letter [PDF] to the CA judge in the case, arguing that neither CA voters nor the state courts had jurisdiction to contest the election any longer, once the candidate had already been sworn into the U.S. House.

"The Court should dismiss this action," Paul Vinovich, Republican counsel to the House Admin Committee wrote to Superior Court Judge Yuri Hoffman. "State courts do not have jurisdiction to decide an action contesting the election of a member of the United States House of Representatives. That power is textually committed to the House of Representatives itself by the Constitution, a commitment that has been recognized by the Supreme Court."

"The United States Constitution unambiguously states that 'Each House shall be the Judge of the Elections, Returns, and Qualifications of its Members,'" Vinovich argued, quoting article I, section 5 of the Constitution. "As a result, the Constitution gives the House of Representatives 'the authority 'to determine the facts and apply the appropriate rules of law, and, finally, to render a judgment which is beyond the authority of any other tribunal to review.'"

"When plaintiff asks this court to decree following a recount '[t]hat the candidate with the most votes be judged elected,' plaintiff is asking the Court to issue an order that the House of Representatives is bound by the FCEA [Federal Contested Elections Act] not to honor," Vinovich instructed the judge in his letter.

On the House Republicans' assertion of the Constitutional argument that it was the Republican-led U.S. House of Representatives --- not the CA courts and not the voters in the state --- who had jurisdiction over the results of the election at that point, the judge accepted the argument and dismissed the case. Democracy was denied. The argument withstood appeal to a higher court, essentially, as time wore on and the court found the complaint to be moot.

Of course, we were outraged at the time that any candidate would be sworn in before all votes had been counted, that the House of Representatives would argue that neither the people of California's 50th district in San Diego, nor the courts of this state, would be allowed to determine their own Representative in Congress, and that the court was willing to accept what seemed such a patently absurd argument.

Nonetheless, the Republicans were successful in shutting down any and all state challenges and contests to that election --- simply through a speedy swearing-in ceremony. An appeal to Congress itself, under the FCEA would have been decided by the Republican majority, just as such a contest today would be decided by the Democrats who now enjoy the majority. The Republican candidate from 2006, Rep. Brian Bilbray, elected on illegal voting systems, installed under an official vote count, with results that were never allowed to be challenged with a manual count, still sits in the U.S. House today.

Given where the New York race could be headed, Democrats would be wise to remember that 2006 precedent so strongly argued by Republicans, and Republicans would be wise to remember it's never a good idea --- no matter how much it appears to be politically advantageous in the short-term --- to put partisan politics ahead of the small-d democracy of we the people.

• 2006 Republican House Committee Letter to CA Judge [PDF]

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Article Categories: Busby/Bilbray, California, Election 2006, New York, U.S. Constitution, U.S. House, San Diego, Election 2009