Yes, like the Energizer Bunny, the case in CA50 (Jacobson v. Bilbray) is still going. The first oral arguments on the appeal took place on Monday.

To recap: the original case was filed last Summer by San Diego voters Gail Jacobson and Lillian Ritt against then-candidate Brian Bilbray and SD County Registrar of Voters/Voter Hater Mikel Haas, after a BRAD BLOG report revealed that pre-programmed, election-ready, hackable-in-60-seconds Diebold voting machines were sent home illegally (in our rarely humble opinion, though one shared in a recent interview by California's new Secretary of State Debra Bowen) with poll workers on overnight "sleepovers" days and weeks before the U.S. House Special Election last July to replace the disgraced Randy "Duke" Cunningham.

There is much more than just the "sleepovers" at question in the case, like the fact that Haas, one of America's worst Elections Officials, arbitrarily and capriciously quoted a legal request by voters for a hand-count in the race at $150,000, effectively stymieing the possibility that such a count would happen at all. Also at issue is the fact that the case was tossed out by a lower court judge after the Bilbray team argued --- with the help of a letter [PDF] from the then-Republican U.S. House Admin Committee in Congress --- that California courts and voters had no say over the issue.

In that letter, the House Admin Committee argued that they, not the California courts or voters, had sole jurisdiction over the case once Bilbray was sworn in. He was sworn in after a fax was sent claiming he was the winner of the election, from the very partisan and now-former CA SoS Bruce McPherson's deputy, Susan Lapsley. Lapsley sent the fax just days after the election, despite the controversy that had erupted over the effectively-decertified voting systems used in the race, the slim reported margin between the two candidates, and the fact that the state hadn't yet actually certified the race, in which tens of thousands of votes in San Diego county had yet to be counted at the time.

Attorney Paul Lehto, working with Carlsbad attorney Ken Simpkins, filed both the original case and the appeal. UPDATE: We've now got a number of accounts of the argument from folks in the courtroom on Monday.

First, Simpkins sends us the following update (which is shorter than our recap) from the first day of hearings last Monday in the appellate case...

Describing it as a "threat...intended to interfere with the independence of the judiciary" in Florida's 13th Congressional District election contest, one of the defendants in the case, Elections Systems & Software, Inc. (ES&S), has filed a motion to strike a letter sent last week to Florida's appellate court from the Chair of the U.S. House Administration Committee, The BRAD BLOG has learned.

Attorneys for the plaintiffs describe the motion as "remarkable" and "a blatant thumb in the eye of Congress."

In her January 5th letter [PDF], the new Democratic chair of the committee, Juanita Millender-McDonald, responded to a lower court's decision at the end of the year refusing the release of the computer source code used on the paperless ES&S touch-screen systems during last November's contested election. Circuit Court Judge William L. Gary held in his decision at that time that the proprietary "trade secrets" of ES&S took precedence over Florida voters' right to know what actually occurred in their own U.S. House election.

The plaintiffs in the case --- Democrat Christine Jennings and several non-partisan election watchdog groups --- had requested review of the source code to aid in an independent expert investigation to help determine what went wrong when Sarasota's touch-screen systems, made by ES&S, failed to report some 18,000 votes in Jennings's race for the U.S. House against the Republican Vern Buchanan.

Buchanan was certified as the "winner" by the state of Florida despite his 369 vote margin and questions about the contest based on the extraordinarily high undervote rate on Sarasota County's voting systems. The still-unexplained undervote rate in the county was approximately five times higher than in the same race in neighboring counties, and similarly much higher than the undervote rate in the same race on the paper absentee ballots in the very same county.

In today's motion [PDF], obtained this afternoon by The BRAD BLOG, ES&S demands the court strike Millender-McDonald's letter from the record. They claim that it's an "unauthorized, non-party response" and that her letter was a "thinly veiled attempt...to intimidate this Court and unduly influence its deliberations in order to give Petitioner [Jennings], a member of Millender-McDonald's political party, an unwarranted advantage in this election contest."

That, despite the fact that Jennings has challenged the election in the U.S. House under the Federal Contested Elections Act and that a letter [PDF], similarly from the U.S. House Administration Committee --- then under Republican rule --- sent to a California court was instrumental and cited by the Judge in the dismissal of a contested U.S. House Special Election last summer between Brian Bilbray (R) and Francine Busby (D) in California's 50th district.

David Becker, a Senior Attorney at PFAW Foundation, one of the groups supporting the voter plaintiffs in the case, tells The BRAD BLOG that the claims made by ES&S in their motion "take a lot of chutzpah." ...

Guest Blogged by John Gideon, Executive Director, VotersUnite.Org

Moving the ball forward a bit in regard to New York Times' stunning report last week that Ciber was refused interim accreditation last July. I've been able to learn a bit more about the existence of the paperwork concerning that denial of accreditation.

The refusal, according to the Times front page exclusive last week, was due to an inspection the Elections Assistance Commission (EAC) conducted at the lab. Ciber is one of the three e-voting test labs or Independent Testing Authoritys (ITAs) which are paid by the Voting Machine Companies themselves to test their hardware and software prior to federal certification.

But contradictions have been flowing from the EAC in the considerable fallout from the Times report which revealed the commission not only failed to accredit Ciber, they also failed to tell the public, or even state and local Elections Officials who used the systems approved by Ciber for last November's election. What nobody --- except the EAC knew --- was that, according to the Times Ciber "was not following its quality-control procedures and could not document that it was conducting all the required tests."

While at first the EAC had denied there was any paperwork documenting the reasons why they had denied interim accreditation to Ciber, I've now been able to learn from an EAC source that such paperwork actually exists. The EAC has simply, again, withheld it from the public. So far. I was then able to get confirmation about it from an EAC spokesperson, along with a hint as to when the world might get to see the actual reasons they withheld accreditation from the private testing lab...

Guest Blogged by Alan Breslauer
Democracy Now's Amy Goodman interviews Greenpeace's John Passacantado in this 10 minute clip that aired yesterday. Passacantando discusses the plight of the polar bear and the extensive effort undertaken by Exxon and the White House to mislead the public about global warming. Also worth checking out is Greenpeace's sobering website, "Exxon Secrets", which is essentially a searchable database evidencing the long reach of the oil behemoth's disinformation campaign.

For the record, despite all appearances, Passacantando and BRAD BLOG's own Brad Friedman are not related.

DRUDGE made the usual jerk of himself yesterday by slamming the Dems for taking the day off for a football game, when in reality, it was later revealed by RAW STORY to have been done "in the spirit of bi-partisan" after a request to take the day off from Republican Minority Leader John Boehner.

"Democrats ran to expand the work week in the House to 5 days. But guess how long that lasted? Not even one week!," Drudge breathlessly sniffed beneath his FLASH headline.

The Wingnut 'sphere had a field day with the headline, as they always do when instructed by DRUDGE. Including, of course, the sycophantic losers at Fox "News'" FOX and Friends who yucked it up on cue at the Dems expense all morning, according to this report by Newshounds.

When the truth was later revealed, and with what should have been egg on their face, the Fox "News" phonies this morning predictably played down their error with the usual "some had said," taking no accountability for the fact that the "some" had been them.

Hat-tip for the report, and the video, to Newshounds: "Watching FOX so you don't have to."

There's been a fair amount of media coverage (at least in California papers), since our scoop yesterday of new CA SoS Debra Bowen's brilliant appointment of dogged E-voting critic and VoterAction.org attorney Lowell Finley to the post of Deputy SoS for Voting Systems Technology and Policy.

There are a couple more ironic points to the Finley appointment above and beyond the ones we mentioned yesterday. One we knew about, another we hadn't.

In his report on the matter, Oakland Tribune's Ian Hoffman reminds us of the qui tam lawsuit filed by Finley against voting machine company Diebold and joined by the state in 2004, which eventually resulted in a settlement:

In a point we hadn't previously known, the Los Angeles Times blogger on state capitol and gubernatorial issues, Robert Sallady, highlighted our coverage here --- describing us as "The state's most persistent blogger-watchdog on the dangers of voting technology" (thank you, sir) --- and advanced the story a bit with this irony-laden chestnut about the man who will now, officially, be working as an appointed member of Schwarzenegger's own Executive Branch:

Office Christmas parties next year in Sacramento ought to be a hoot. Hopefully the Governator supplies the medication.

It may not be a very good day in the corporate offices at Diebold, but The BRAD BLOG has learned some big news that may well indicate today is a very good day indeed for the voters of America and specifically in California.

As incoming Sec. of State Debra Bowen was sworn in to her new office just moments ago, The BRAD BLOG can now reveal that one of the nation's top critics of unverifiable electronic voting systems --- and a key player across several states in the legal battles against voting machine companies such as Diebold, ES&S, Sequoia Voting Systems, and Hart Intercivic --- is today being named by the new California Sec. of State Debra Bowen as Deputy SoS for Voting Systems Technology and Policy.

Lowell Finley, the lead attorney for the non-partisan voting machine legal watchdog organization VoterAction.org, will be named to the position today.

In his new capacity, Finley will oversee testing and certification for all voting machine technology in the State of California. In a phone call this morning, Finley confirmed that he would be working closely in his new role with key national associations like the National Institute for Science and Technology (NIST) and the U.S. Elections Assistance Commission (EAC).

E-voting critics and at least one California Registrar of Voters have hailed both the swearing in of Bowen as SoS and her appointment of Finley, expressing delight to The BRAD BLOG over the news, characterizing it as a "colossal surprise" and a "very, very good sign for the future of voters' rights in California."

America's voting machine companies are less likely to feel quite as happy about the news.

Finley and VoterAction have filed a number of landmark lawsuits in several states, including in California, over the past year or so, demanding an immediate halt to the use and purchase of Direct Recording Electronic (DRE/touch-screen) voting systems and decertification of many of those systems, as well as improved processes for certification of such systems.

VoterAction is one of over 30 Election Reform organizations who recently went on record with an open letter to Members of Congress demanding federal legislation requiring a paper ballot for every vote cast in America. Such legislation would effectively ban the use of DRE systems, with or without a so-callled "Voter Verified Paper Trail" (VVPAT).

Bowen has been a dogged critic of former Secretary of State Bruce McPherson during her candidacy and in her role overseeing the Elections Committee as a California State Senator. She has criticized his lack of oversight and lax testing procedures, and has championed a "Voters' Bill of Rights" for the Golden State.

While a suit by VoterAction.org filed against former SoS McPherson and several CA Registrars of Voting --- concerning McPherson's certification of Diebold TSx touch-screen systems --- is still pending in state court, the disposition of that suit will likely change due to the fact that the lead defendant, McPherson, is no longer in office.

The Berkeley-based attorney Finley --- also one of the attorneys representing voter plaintiffs in the contested election in Florida's 13th Congressional district in Sarasota --- had one of his most recent and notable successes last September, when a Colorado judge ordered a complete review of certification procedures for voting machines in the state. The court found the official placed in charge of testing and certification didn't have the qualifications necessary, and performed little or no testing. That man, John Gardner, was appointed by former CO Sec. of State Donetta Davidson, who has been appointed by George W. Bush to head the U.S. Elections Assistance Commission.

The news of Finley's appointment will undoubtedly be of concern to the major voting machine companies that received little oversight from the former Sec. of State McPherson.

"I wish I was a fly on the wall in the offices at Diebold as they learn of this appointment. I'm sure jaws will be dropping and damage control will be ramping up," John Gideon of election watchdog organization VotersUnite.org told us today. (Gideon is also a frequent Guest Blogger here at The BRAD BLOG.) ...

Guest Blogged by Alan Breslauer

All of the Sunday news shows today were abuzz with talk of Bush's reported troop "surge" plan for Iraq.

The general theme was that, as Commander-in-Chief, Bush could do whatever he wanted in regard to troop levels and the only thing Congress could do about it was to use their control of the purse strings by voting to stop funding the war. In other words, they could take what increasingly appears to be the White House dare.

Never mind that briar patch --- and the fact that Congress could instead gracefully vote to end funding for the war as of a date fixed long into the future. For example, no more funding as of next year. In that way, there would be plenty of time to begin a withdrawal, and the Dems wouldn't end up falling into the Bush dead-enders' disingenuous trap, set to show the Democrats as hoping to see our poor troops stranded in a foreign country with no food, water, bullets, or way to get home.

But aside from cutting off funding for the war, now or in the future, there is another option for the moment in answer to Bush's predicted call for a "surge"; demand that the White House release their estimates of the number of casualties we will incur during such a "surge."

Now, I'm no military expert (and I'd be delighted to hear, via comments or email, from anyone who is and can speak to this issue), but it seems to me that any plan to increase troop strength would come with some sort of general estimate from the Pentagon as to the cost in increased, or decreased, causalities for our troops.

Congress must call on the White House to go on record with that estimate!

If there is estimated to be an increase in casualties, okay, let's hear it. The country needs to know exactly how much blood of other people's children that Bush is willing to throw down in his Hail-Mary gamble for "victory."

If there is estimated to be a decrease, fine, let's hear it. At least there will now be a paper trail metric of what the official predictions for such things were. If Bush ends up moving ahead with his double-down plan, we'll be able to clearly judge his Administration's "success" against that metric in the future if the "surge" happens despite all other efforts --- and reason --- to keep it from happening.

Finally, if no such estimate has been made by the White House (or, more aptly, the Pentagon, presumably) in planning for such a radical change in policy, then the Administration would simply be seen as wholly delinquent in their duties. That alone should be enough for Congress to be able to roundly vote in favor of a resolution condemning the plan. In the bargain, it will help make the case to the American people, loudly and clearly --- as if it has not been made already --- that this Administration has no damned business running the foreign policy of this country while using the men and women of our armed forces as chess pieces in their desperate attempt to save their own disastrous political and historical legacy.

Your thoughts?

The first of my weekly appearances on the Peter B. Collins Show for 2007 --- which I am now officially dubbing "The Year of Accountability." We covered quite a bit of ground, hit a bunch of recent stories, had some great calls, broke some news here and there (if you pay close attention), and had a number of good laughs. Listen up as you like...

-- Brad on The PBC Show, 1/5/07 [MP3, about an hour w/ commercials]

Congresswoman Juanita Millender-McDonald, the new chair of the U.S. House Administration Committee, has sent a letter to the Florida Court of Appeals currently reviewing the absurd decision made late in the day on the last day the year by circuit court Judge William L. Gary to disallow release of the source code from the paperless ES&S touch-screen voting machines to the plaintiffs who have requested it in the state election contest in the U.S. House race in Florida's 13th district.

Gary found at the time that release of the material would "result in destroying or at least gutting the protections afforded those who own the trade secrets." In other words, the private corporate interests of the ES&S voting machine company was more important than allowing Florida voters to try and determine the valid winner of an election.

The election is one of five now being contested in the U.S. House under the Federal Contested Elections Act, and we'd suggest Millender-McDonald's letter may serve as a precursor warning to the courts that the committee may use their subpeona power to get at the source code if the Florida courts refuse to allow its release.

Electronic Frontier Foundation covers the news here with the short letter itself linked here [PDF].

Syndicated California columnist, Thomas D. Elias, has written the single best MSM article we've ever read on the problems with the current state of our electoral system. Period.

In covering changes planned by incoming CA Secretary of State Debra Bowen, Elias --- for the first time, at least that I've ever seen anywhere in the MSM --- squarely places the blame for the entire fine mess we're in exactly where it belongs: On the voting machine companies and the elections officials who have been their enablers and apologists...

BOOM! Outta the park!

Those two grafs alone are enough for us to nominate Elias for a Pulitzer. Yes, the reporting on this matter in the MSM has been so indescribably horrible from the get-go that we're willing to give it all up just for those two grafs which finally tell the story correctly.

But Elias doesn't stop there. While we recommend you read his entire piece in full we'll highlight a few of the most notable grafs just to make sure as many eyeballs as possible actually get to see them --- for the good news they offer about a possibly brighter future for elections in California (and thus, the rest of the country) and for the fact that they have actually been printed in a fairly major metropolitan newspaper.

On Bowen's plans for full 'top to bottom review' of outgoing SoS McPherson's rubber-stamp certification of all electronic voting machines...

On the truth (finally!) about the feckless and incompetent McPherson...

On the infamous voting machine "sleepovers" (as first revealed by The BRAD BLOG)...

On the worthlessness of so-called "paper trails" and the difficulty candidates face in paying exorbitant costs for recounts as capriciously and arbitrarily priced by Registrars...

NOTE: The BRAD BLOG covered the cost quoted for a recount in last summer's Special U.S. House Election in CA-50's Francine Busby/Brian Bilbray race. The cost, capriciously and arbitrarily quoted for that recount in order to make it impossible by the horrendous San Diego County Registar of Voters Mikel Haas: $150,000!

Elias also speaks of Sequoia's yellow button "feature" (also first revealed on these pages, but who's counting?) and more. All of which, apparently, forces the Ventura County Star to label the piece, regretablly, as "opinion." But so be it. We'll take what we can get.

If you'd like to send a thank you note to Elias and the VCS Editors, please click here!