Francine Busby and Brian Bilbray will meet again in November's election for the 50th Congressional District in San Diego County, California. Because Bilbray was declared the winner of the Special Election on June 6, he will be running as an incumbent this time. However, there has not yet been a trustworthy count of the votes that reportedly brought him into Congress after the initial disputed election. The court case challenging his victory has yet to be resolved.

San Diego voters Barbara Gail Jacobsen and Lillian Ritt filed an election contest challenging Bilbray's reported victory based on a number of factors including the now-infamous Diebold electronic voting machine sleepovers. Judge Yuri Hofmann dismissed that suit after intervention by Republican Congressional leaders claiming that once Bilbray was sworn in, California courts had no jurisdiction to rule on California's election, even though swearing in took place before the election was certified in California. That dismissal is now being appealed by California attorney Ken Simpkins and election attorney Paul Lehto on behalf of Jacobsen and Ritt.

According to Simpkins, this "was a unique situation because they actually swore Bilbray in before we got certification of this election, before all the votes were counted. Congress is basically saying we're going to swear in whoever we want to swear in, it doesn't matter if the election has been completed or not. That's another treading on the state's constitutional right to determine the time, place and manner of elections," he said.

More VoterAction.org lawsuits and complaints are now being filed to stop the use and/or purchase of electronic voting systems around the country. On Wednesday, two more. One in California, another in Wisconsin.

In Alameda County, CA a suit was filed to stop of the use of Sequoia Voting Systems touch-screen DRE's, alleging the county "has not performed independent, expert security vulnerability testing on its new Sequoia voting equipment. The group claims such testing was a prerequisite stipulated by county supervisors before the county would issue payment for the system." ...

The Democratic nominee for Secretary of State in California issued a powerful statement in support of recent legislation filed by several Senators and Representatives in both the U.S. House and Senate calling for Emergency Paper Ballots at the polling place this November.

The 11th hour Congressional bills, filed on Tuesday and Wednesday, just days before both chambers adjourn for the Election Recess, will offer voters the right to vote on paper ballots this year and see those costs reimbursed by the Federal Government. The legislation, if passed, is estimated to cost approximately $10 million. It would amend the disastrous 2002 Help America Vote Act (HAVA) which has mandated some $3 billion to encourage States and Counties to "upgrade" to electronic voting systems.

Monumental failures in those systems, during primary elections across the country over the last several months, have sent thousands of voters away from the polls without being able to cast any vote at all. The situation could be far worse during the general election when voter turnout will be a great deal higher than it's been so far in the mid-year primaries.

"Remember, it's the 'Help America Vote Act,' not the 'Help Diebold Profit Act,'" said Bowen, in a stinging comment referring to one of America's largest manufacturers of inaccurate, untested, hackable elecronic voting machines. "It's why this low-tech option makes so much sense, especially in light of all of the problems electronic voting machines have had in primary elections this year, not just in California, but also in Texas, Illinois, and most recently Maryland."

The BRAD BLOG originally proposed the idea for Emergency Paper Ballots early last week. The low-tech, high common-sense notion has gained considerable steam since its inception on these pages. It has now been officially introduced as legislation in Congress by Senators Boxer, Dodd, Feingold and Kerry in the Senate, and by Representative Rush Holt and several co-sponsors in the U.S. House.

Bowen's Republican opponent, Sec. of State Bruce McPherson was appointed by Gov. Arnold Schwarzenegger and has come under considerable fire for re-certifying Diebold systems in the state in light of severe warnings from his own team of scientific advisors about more than a dozen "serious vulnerabilities" in those particular voting systems.

An investigate report from BlackBoxVoting.org [PDF], a non-partisan E-voting watchdog organization, found that representative of Diebold's had actually drafted official documents on behalf of the California Secretary of State's office!

That same rep, Rob Pelletier, had previously been presenting disinformation in comments here at The BRAD BLOG under the name of "Wally O'Diebold" until he was found out.

Diebold voting systems were decertified in California by McPherson's predecessor, just prior to the 2004 election, when it was discovered the company had been installing uncertified software and systems in several counties across the state. They settled a qui tam (fraud) lawsuit with the state for $2.8 million later that year.

Though the legislation in the Congress so far has been sponsored by Democrats, the problem is a decidedly non-partisan issue. Maryland's Republican Governor Robert Ehrlich recently called for paper ballots to be used in his state this November after failures across the state disenfranchised thousands of voters during their September 12th primary. Maryland, along with Georgia, was Diebold's "showcase" state having installed their paperless electronic touch-screen systems as early as 2002 with the cooperation and ardent support of the Democratic MD Elections Director, Linda Lamone.

Citing the irony of the public outcry for a return to countable paper balloting, the failure of the U.S. Congress to take action on growing concerns, and the plunging confidence rate in electronic voting amongst the American electorate, Bowen said in her statement, "It's about time Congress provides counties with the incentive to allow their voters to cast a paper ballot at the polls on Election Day, a step that will help begin to restore voter confidence in the elections process and the results."

Bowen, in her capacity as chair of the CA State Senate Elections Commission, held hearings in Kern County, California after the state's marred June 6th primary, when voting systems failed to start up --- or sometimes even show up at the polls at all --- until hours after voting was supposed to have begun. The Kern County Registrar of Voters had, incredibly, given instructions that "back-up paper ballots were not to be used" on Election Day according to the State Senators statement.

"Kern County is the reason why I wish counties were required to provide this option to voters," Bowen remarked.

Citizens are asked to call upon Congress to pass the Emergency Paper Ballot legislation immediately. You may easily contact your Senators here, and your House Members here.

Debra Bowen's complete statement on Emergency Paper Ballots follows in full...

Guest Blogged by John Gideon

While we don't shy away from talking about the corrupt, the wrong thinking, the un-caring elections officials in our country we don't often get a chance to recognize those who actually do a good job and show that they really do care. I would guess that 90% of the elections officials fall into the category of the caring but it is that 10% who get talked about. I want to change that a bit and talk about one who has made a good decision.

Warren Slocum is the Chief Elections Director of San Mateo County, California. The county has recently decided that they will use Hart Intercivic eSlate Direct Recording Electronic (DRE) voting machines at the polls from now on. That's not a good decision because the eSlates are just as bad as the rest, but it was a decision made and we have to move on.

It has just been reported in the San Mateo Daily Journal that Slocum has decided that there is not enough time for him to be assured that his voters and poll workers can become acclimated to the new voting machines by the general election in November. The polls were supposed to have three to six of the eSlates but now voters will find only one eSlate and paper ballots. Slocum is giving up quick results reporting for integrity and we applaud that.

If only Cuyahoga County, Ohio elections officials had decided on integrity instead of rushing out voting machines that were unfamiliar. If only Maryland elections officials had decided on integrity instead of rushing out an unproven and ripe for failure e-poll book device. And the same "If only..." can be echoed all over the country this primary season.

Thank you Warren Slocum for having integrity and for putting your voters and poll workers first.

Guest Blogged by John Gideon

The UK's SC News reported today that Princeton's Professor Felten discovered that the key to gain entry to the memory card slot on the Diebold AccuVote TS is the same key that you may have to open your desk drawer, filing cabinet or even a hotel mini-bar [emphasis added]:

Avi Rubin, Johns-Hopkins University Professor and computer scientist, points out in his blog this morning:

So we now have a key that can be obtained from nearly anywhere and a "secret" password [1111] that everyone knows, and Diebold's David Bear says if proper access controls are maintained at the polling place there should be no problems. Perhaps Bear is talking about someone looking over the voter's shoulder to ensure they don't spend two minutes hacking into the machine?

All of this comes on the heels of the report from Princeton University, thanks to The BRAD BLOG, that was first reported here.

As well, it comes on the heels of the challenge to the Busby/Bilbray special U.S. House election in June in San Diego when these Diebold voting machines were sent home overnight --- in violation of both state and federal law --- for "sleepovers" with poll workers for days and weeks prior to the election. Here's a video that we missed at the time: Poll workers, on May 30th, taking home their pre-programmed, election-ready Diebold voting machines to store in their houses and cars 7 days prior to the June 6th election!

Any of them could easily have opened the "secure" systems with a mini-bar key, or, as the Princeton folks demonstrated on FOX "News" last week, they could have picked the lock themselves in 10 seconds. Of course, as we now know, it would have taken them less than a minute thereafter to insert a vote-flipping virus on the machines which could then affect every other machine used in the race.

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...

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!

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.

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...

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...

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...

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...

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.

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.

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: