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Election Nullification Rejected! As Plaintiffs Seek to Prevent National Use of the 'Constitution as a Weapon'!
Jurisdictional Issue, Previously Used to Dismiss Case, to be Challenged on Appeal!
By Emily Levy on 9/8/2006 10:50am PT  

Guest blogged by Emily Levy

The BRAD BLOG has learned that the plaintiffs in the Busby/Bilbray CA-50 election contest will be appealing the recent dismissal of the case by a San Diego judge. The appeal will be filed in California's 4th District court. Briefs are now being prepared and funds being collected for what may be a rather expensive appeal. Notice of appeal may be filed as soon as today.

Donations to the appeal can be made via Velvet Revolution.

The appeal is a rejection of Judge Yuri Hofmann’s August 29 ruling which echoed GOP claims that the U.S. House of Representatives, not the state courts or voters, have the power to determine the outcome of elections of members of Congress. In California’s 50th Congressional district in San Diego County, Republican candidate Brian Bilbray was announced to be the winner of the June 6 special election, flown to Washington and sworn in before all the votes were counted or the election certified. That, after reports were initially broken, and well circulated by The BRAD BLOG revealing that the Diebold voting machines used in the elelection were sent home with poll workers for overnight "sleepovers" in the days and weeks preceding the "bellwether" U.S. House special election.

Those sleepovers, in which election works had unsupervised access to the highly hackable, programmed, election-ready voting systems, were in contravention of both state and federal laws and led to a filing of an election contest in early July.

Says attorney Paul Lehto, who argued the plaintiffs' case in Hofmann’s court...

--- Click here for REST OF STORY!... ---

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Miriam Raftery has the skinny
By Winter Patriot on 9/6/2006 12:46pm PT  

Guest blogged by Winter Patriot

Miriam Raftery:
Court rules against voter-supervised elections, attorney tells RawCourt rules against voter-supervised elections, attorney tells Raw

Run right over there and read it!

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Says Once and Current Candidate: 'Looking at it from hindsight, perhaps we should have gotten more involved'
UPATED! Transcript and Audio now available!
By Winter Patriot on 8/31/2006 4:49pm PT  

Guest blogged by Winter Patriot

Word just in! Francine Busby will be on the radio with Peter B. Collins beginning at 8:15pm Eastern time. That's 7:15 Central, 6:15 Mountain and 5:15 Pacific, of course.

If you're in (or near) Monterey, Sacramento, Eureka or Phoenix, you can listen via broadcast radio.Otherwise your only option is a streaming webcast.

Either way, click here for more details.

UPDATE: A recording of Francine Busby's interview with Peter B. Collins is now available. Click here to download it (MP3).

We now have a transcript, courtesy of Emily Levy. That's below the fold.

We're also trying to get the audio for Busby's appearance on The Stacy Taylor Show on KLSD this morning, too. Will post it when/if we get it.

--- Click here for REST OF STORY!... ---

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Strong Statement, in Wake of Lawsuit Tossed on 'Jurisdictional Grounds', a First Since Illegally Adminstered June 6th U.S. House Special Election!
'North County Times' Provides Decent Coverage of Debacle...
By Brad Friedman on 8/30/2006 7:30am PT  

Blogged by Brad from the road...

"It's outrageous," says Francine Busby, "that this judge just said the state of California doesn't have jurisdiction over our own elections, over this election."

Busby's remarks, in a report today by William Finn Bennett in the North County Times, were a suprising departure from her previously guarded stance concerning the challenge of the June 6th U.S. House Special Election between herself and Brian Bilbray.

"What happened today should be of concern to all voters," Busby reportedly said.

Bennett's coverage of yesterday's debacle in the San Diego County courtroom where Judge Yuri Hoffman dismissed the election contest in support of the defendants' arguments that the U.S. House, not the voters or courts of California, have jurisdication to adjudicate election challenges after the House has already seated a member, is quite good. Indeed, it was a refreshing departure from previous sloppy, sometimes wholly inaccurate and occassionally entirely partisan North County Times reports and commentary on the case (see this embarrasing commentary from Jim Trageser for the most egregious.)

Bennett's report today, on the other hand, quite fairly describes the court's atrocious decision which we reported on in detail yesterday. Here's a sample from his coverage...

--- Click here for REST OF STORY!... ---

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Finds Rushed Swearing in of Presumed Winner Bilbray by U.S. House --- Just 7 Days After Election and 16 Days Before Certification --- Transferred Power to Decide Election Outcome to Congress
California Voters, Courts Left Powerless to Challenge Illegally Administered Election According to Ruling
By Emily Levy on 8/29/2006 4:37pm PT  

A judge in the San Diego challenge to the Francine Busby/Brian Bilbray U.S. House Special Election in California's 50th Congressional District has found in favor of the defendants' motion to dismiss the case based on jurisdictional grounds, The BRAD BLOG has learned.

We have covered the defendants' argument, that the swearing in of Bilbray --- just seven days after the election and a full 16 days prior to certification by San Diego County --- effectively transferred power to decide any election challenges from the California courts to the U.S. House of Representatives. Those arguments are discussed in detail in several previous BRAD BLOG articles (here, here, here and here.)

The defendants' attempts to force plaintiffs to cover the cost of attorneys fees (a so-called "SLAPP back" motion) was denied by Judge Yuri Hofmann based on the same jurisdictional arguments used to dismiss the case, according to the plaintiffs' attorney, Paul Lehto. Since the California court has no jurisdiction to adjudicate an election contest for a California U.S. House election, according to the court's opinion, it also has no jurisdiction to find against plaintiffs in the "SLAPP back" motion, explained Lehto.

VelvetRevolution.us is now collecting donations to help defray the cost of an appeal of this ruling.

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

--- Click here for REST OF STORY!... ---

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But in the meantime, we have a transcript of Friday's oral arguments --- just for you!
By Winter Patriot on 8/29/2006 11:05am PT  

Guest blogged by Winter Patriot

Judge Yuri Hofmann of the California Superior Court is expected to rule this afternoon on the arguments presented Friday.

The plaintiffs in the CA50 Election Contest are asking for a manual count of ballots from the June 6th House special election, which was held to replace former Republican Congressman Randy "Duke" Cunningham, who resigned after being unable to contain the fallout from a major bribery scandal.

The defendants are arguing that California no longer has any jurisdiction over the election since the Republican U.S. House went ahead and swore in Brian Bilbray just 7 days after the election, with thousands of votes still uncounted, and certification still several weeks away...

--- Click here for REST OF STORY!... ---

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Did Congress Ask California for Permission to Nullify a California Election???
Are You Dizzy Yet?...There's More! Effort to Recall Dennis Hastert Begins!
By Emily Levy on 8/28/2006 7:57pm PT  

Guest blogged by Emily Levy

You know by now that Brian Bilbray was sworn in as Congressional Representative before the June 6 election in San Diego County, CA was certified. You might even remember reading on The BRAD BLOG that the official swearing in was preceded by a public "mock" swearing in. You learned last week that this premature act is now being used by the defendants in the Busby/Bilbray election contest as an attempt to nullify the election in California's 50th district. But today (drum roll please) Michael Collins of Scoop Independent News reveals that it was Assistant California SoS Susan Lapsley (seen in photo) who provided the election results to the House.

Collins points us to the Congressional Digest...

Representative-elect Brian P. Bilbray presented himself in the well of the House and was administered the Oath of Office by the Speaker. Earlier the Clerk of the House transmitted a facsimile copy of the unofficial returns of the Special Election held on June 6, 2006 from Ms. Susan Lapsley, Assistant Secretary of State for Elections, California Secretary of State Office, indicating that the Honorable Brian P. Bilbray was elected Representative in Congress for the Fiftieth Congressional District of California.

--- Click here for REST OF STORY!... ---

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California SoS Denies Certification To Vote-PAD
By John Gideon on 8/28/2006 4:55pm PT  

"Off with Their Heads!" cried the Queen of Hearts

"How am I to get in?" asked Alice again, in a louder tone.
"Are you to get in at all?" said the Footman. "That's the first question, you know."

It was a Queen of Hearts sort of a day in California on August 9, 2006. The Secretary of State's advisory panel was hearing public comments regarding the pending certification of the Vote-PAD, a non-electronic assistive device designed to help voters with disabilities mark and verify a paper ballot independently.

Voting integrity advocates held signs supporting the certification of Vote-PAD. They told of countless failures of computerized voting systems. They spoke about recent discoveries of easily hackable "back doors" into the vote totals on those systems, which have been certified. By contrast, "Vote-PAD is no more hackable than a #2 pencil," said one.

Notwithstanding this and the letters praising the Vote-PAD from dozens of people with visual and motor disabilities, the Secretary of State's staff was recommending against certifying the Vote-PAD for use in California.

--- Click here for REST OF STORY!... ---

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By Brad Friedman on 8/28/2006 1:34pm PT  

Blogged by Brad from the road...

In addition to Emily Levy's coverage here on Friday night, and Winter Patriot's coverage last Thursday (which includes actual briefs and letters filed in the case), Miriam Raftery filed a superb summation at RAW STORY today of where the Busby/Bilbray CA50 Election Contest stands as of last Friday's hearing. She includes several details which the Guest Bloggers here hadn't previously touched on --- including details on the defendants' attempts at a frivolous "SLAPP suit" against the plaintiffs --- so we recommend giving her piece a quick read.

The Judge on the case in San Diego, Yuri Hofmann, is to decide tomorrow on the defense's argument that the case should be tossed out on jurisdictional grounds because, they argue, the Constitution gives the U.S. Congress --- not California voters or California courts --- the right to ultimately adjudicate such election challenges...even before, as in this case, the election was actually certified by the county or the state. No, seriously, that's what Brian Bilbray's attorneys are actually arguing. Out loud.

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Takes Constitutional and Jurisdictional Matters Under Advisement
Could Judge Hofmann Be Prying the NeoCon Boot Off His Neck?
By Emily Levy on 8/25/2006 5:52pm PT  

Guest bloged by Emily Levy

Judge Yuri Hofmann announced in his San Diego courtroom today that he will take the constitutional and jurisdictional matters of the CA-50 election challenge case under advisement and issue a ruling next Tuesday, August 29.

The first item up for consideration today in the election contest filed by Attorneys Paul Lehto and Ken Simpkins on behalf of two San Diego voters (and truly on behalf of all of us) was a defense motion for dismissal. Defense claimed that the San Diego court has no jurisdiction in this matter because the Constitution says, “Each House shall be the judge of the elections, returns and qualifications of its own members…” (Article I, Section 5). In other words, The House of Representatives gets to pick its members. (Who really needs elections, anyway?)

Lehto, in response, argued--as outlined here--that if the court has no jurisdiction, then Registrar of Voters Mikel Haas also had no jurisdiction to certify the election, given that certification happened after Bilbray was sworn in. (Yes, you heard that right.)

The defendants also argued that the court has no jurisdiction because plaintiffs had abandoned their recount efforts. According to Lehto, the request for a recount was filed properly within five days of certification of the election. Lehto says, "Jurisdiction was created by filing. That's all the statute says. There is no abandonment rule."

The judge is expected to rule on both the constitutional and jurisdictional issues on Tuesday.

From the courthouse by cell phone plaintiff Barbara Gail Jacobsen reported, "Paul Lehto and Ken Simpkins represented us very well today in court. Lehto said it's invading the sovereignty of the State if someone swoops in and swears the person in and then says there’s nothing you can do. I thought he made some very good arguments about upholding checks and balances in our system and standing up for the right of the people to make sure that elections are accountable. We the People of this country decide on who is going to represent us, and it’s through making sure that our elections are sound that we can know for sure that we have elected people that we want to transfer power to. In this particular case what Paul Lehto was trying to say is that the people's right to know if the election was properly carried out is being blindfolded and taken away by the other side."

We can only hope that before Tuesday Judge Hofmann will have the opportunity to read the rest of the Constitution. It could be enlightening.

Donations are still needed for the lawsuit and other efforts in California’s 50th District to fight the illegal June 6 election. For more information, go to nosleepovers.org.

UPDATE: We have another report of the day's proceedings, this one from Judy Hess of CA 50 Action Committee:

--- Click here for REST OF STORY!... ---

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Plaintiff in Response: 'Defendant's Argument Means Election Is Uncertified, Never Happened'
UPDATED! NOW WITH A LIVE REPORT FROM THE COURTHOUSE! where Attorney Paul Lehto Claims 'Election Nullification Argument' is Absurd, Power Grab by Speaker of the U.S. House...
By Winter Patriot on 8/24/2006 10:27pm PT  


Guest blogged by Winter Patriot

UPDATE: We have a live update from the courthouse. You can see it at the bottom of this post

We haven't been covering the CA50 Election Mess as often as in the recent past --- while Brad's been on the road and otherwise occupied --- but we have been keeping our ears to the ground, so to speak. (Yes, they get dirty, but so what? We can hear things coming before they happen. It's cool; you should try it.)

My friends, we have been hearing distant rumblings of great power. To get you up to speed quickly...

The CA50 U.S. House special election between Francine Busby and Brian Bilbray was held on June 6, on illegal Diebold voting machines as has been reported here many times. (Click here for a good recent summary of the situation.) On June 13, Bilbray was quickly sworn in to the House of Representatives while thousands of votes were still being counted back in San Diego. (This surprised and angered many voters, especially since a poll taken three weeks before the election showed Busby ahead by 7%.) On June 29, the election was finally certified --- in favor of Bilbray --- by the Registrar of Voters Mikel Haas.

The election was contested on July 29 after Haas refused to allow for a hand count of the ballots, as allowed by California state law. And on August 22, defendants filed a brief in the case to dismiss, stating that because Bilbray has already been sworn in (by the Republican House of Representatives,) the California Court has no jurisdiction whatsoever and the House has exclusive jurisdiction to judge who its members are and the qualifications of those members.

According to an email sent to The BRAD BLOG this evening from attorney Paul Lehto...

The defendants' position is that the court is powerless (i.e. without jurisdiction) to do anything about this election contest, because Bilbray was sworn in only 7 days after the June 6, and long before the election was legally final on or about June 29.

This premature termination of the election in the 50th Congressional District by the swearing in took place while votes were literally still being counted and provisional votes were still being counted, and also this premature swearing-in took place well before the 1% ballot audit required as part of the certification process, and also occurred fully 16 days prior to the official certification of the results.

The defendant's premature swearing-in at the command of Washington DC politicians, if it had any legal effect at all, necessarily means that if there's no power for a Court in San Diego County to protect and review our elections for Congress, there was certainly no power and no jurisdiction for defendant Registrar Haas to certify the results of the election, either.

The swearing in simply terminated the election in mid-count. Consequently, the defendants' arguments about the court's lack of power also mean that this uncertified election does not legally exist, in the legal sense that the election never happened, and this election never became final because it has never been certified at a time when anybody in San Diego had any power to do anything about it.

Because no election is decided or over until it's officially certified, this election was actually decided in Washington DC, and not decided in San Diego's 50th Congressional District.

So there you have it. This is the stick with which Paul Lehto is trying to beat a corrupted electoral machine back into shape.

Here's Lehto's brief responding to the absurd position [PDF] taken by the defendants in this case.

The judge is set to give his decision on the jurisdictional matter Friday, determining whether or not the case will be tossed out based on the argument of the defendants. The court hearing on this matter begins at 1:30 p.m. Pacific time in San Diego.

UPDATE... Michael Collins at Scoop has more. And now, so do we --- below the fold...

--- Click here for REST OF STORY!... ---

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By John Gideon on 8/24/2006 5:53pm PT  

Guest Blogged by John Gideon

Tonight Kitty compares the paperless Direct Recording Electronic voting in Maryland to the potentially auditable and verified electronic voting in California. Guests were Dan Wallach of Rice University and California State Senator and Secretary of State candidate Debra Bowen.

The text-transcript of tonight's segment on Lou Dobbs Tonight follows in full...

--- Click here for REST OF STORY!... ---

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By Winter Patriot on 8/15/2006 9:50pm PT  

Guest blogged by Winter Patriot

Further to yesterday's post about Open Voting Consortium and Raging Grannies working together to resist Hart InterCivic machines on behalf of the voters of San Mateo County, we have bad news and good news.

The bad news is that their effort to postpone an immediate decision in favor of Hart InterCivic has failed. The good news is that the Grannies will keep on Raging. We have a note from the Grannies and a press release describing the meeting.

The Grannies will not give in. We are surprised, but not shocked, at the vote of the Board of Supervisors of San Mateo County, CA today, to approve purchase of the Hart InterCivic Voting systems. As for the Grannies plans now.... Our street theater is going on the road, wherever election protection is needed!

Here's a photo from our dramatization for the press in front of the Hall of Justice building where the Supervisors met. Several newspaper photographers were on hand to document this event.

Our play: Debbie Does Democracy is as follows:

Debbie (in red t-shirt) is suffering from Loss of Voter Confidence and Lack of Civil Rights. Here she is seen being treated by Dr. Jane Q Public with injections of Robust Audits and Software Transparency. All roles played by Raging Grannies.

The press release follows.

--- Click here for REST OF STORY!... ---

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Salon's Election Integrity Coverage Takes A Turn For The Better
but it couldn't have got much worse!
By Winter Patriot on 8/15/2006 7:55pm PT  

Guest blogged by Winter Patriot

Art Levine's new piece at Salon raises their election integrity bar quite a bit --- not a difficult task considering where that bar has been lately.

Prior to the 2004 "election", Salon's coverage was generally quite good; since then it's been dismal, thanks mostly to some outrageous smear pieces from Farhad Manjoo. In fact, Salon's coverage has been so dreadful that the site has been referred to in some quarters as "Saloon", which of course rhymes with "buffoon", which gives me a good way to remember "Manjoo", whose name just wouldn't stick in my frozen brain any other way.

But let's not dwell on those sad times.

Levine's article, "Salon's shameful six", looks at six states --- Arizona, Indiana, California, Missouri, Ohio and Florida --- where vote suppression could cause serious problems in 2006.

If you're not a Salon subscriber, you'll have to watch a short ad to read the whole article. I did; it was well worth the time and effort. But just in case you don't believe me, we have a few short excerpts, below the fold.

--- Click here for REST OF STORY!... ---

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By Winter Patriot on 8/15/2006 1:45am PT  

Guest blogged by Winter Patriot


Ginny Ross, one of our friends from the Election Defense Alliance, has posted the video of the beginning of the press conference from DemocracyFest last month in San Diego as the Busby/Bilbray election challenge (due to voting machine "sleepovers" with pollworkers) was just coming to light. Some of us have been anxious to see this ever since Ginny told us she was working on it. And rightly so. The video is a good one. Just click on the picture to see it.

For more on the press conference, please revisit Brad's post of July 18th.

You're more than welcome to disagree with me on this, but I'd say he did a fine job. Then again, what do I know? I'm partially frozen at the best of times. ;-)

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