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...

I'm pleased to share a hot-off-the-press message from attorney Paul Lehto, in which he explains what I've been talking about, but better than I could do it ... and he explains much more, too!

Please relax for a moment and enjoy this:

Election Nullification Argued By Election Contest Defendants

Defendants Allege in Motion to Dismiss that Swearing-In Bilbray on June 13th or 17 days Prior to Certification Deprived San Diego Superior Court of Jurisdiction

Pre-Certification Swearing-In Means Race Never Validly Certified; In Effect Busby/Bilbray Election Decided in DC, Terminated in San Diego

In briefs filed August 22 with San Diego Superior Court in the Busby/Bilbray election contest in California’s 50th Congressional District, the Defendants argue that the House of Representatives has exclusive jurisdiction over the qualifications of its Members under Art. I, sec. 5 of the US Constitution. But if this is indeed the case, then Registrar of Voters Mikel Haas was also without jurisdiction to certify or finalize the results, the exclusive and sole jurisdiction resting with the House of Representatives! Thus, no legal election was ever concluded or had in California’s 50th Cong. District, according to the necessary conclusion of the defendants’ arguments against jurisdiction of the Court.

It thus appears now based on the signed pleadings of the defendants that the US media overlooked one of the great political stories of the year: A power grab by the Speaker of the House to terminate any action in San Diego County except those actions that they choose not to attack the jurisdiction of.

A brief chronology helps to reveal the posture of the case:

  • 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.”
  • The facts of the case thus present unique questions of Constitutional law, that appear to be a case of first impression. In Roudebush v Hartke, the US Supreme Court held in 1972 that the State’s jurisdiction under Art I sec. 4 of the US Constitution to define the time place and manner of elections gave the States jurisdiction over the counts and the recounts of votes. But the defendants attempt to distinguish that case, because the Senate in the Roudebush case set an example of responsible constitutional behavior by awaiting the results of the Court challenge before swearing in. However, in this case, the House had no such patience, and in no uncertain terms is telling San Diego Courts and San Diego county where to go, and that is wherever those who are completely powerless as against the mighty lords of the House of Representatives go.

    In a filling in San Diego Municipal Court yesterday, attorney Paul Lehto outlined the core of the dispute 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.

    These other provisions include Art I, sec 4’s requirement that States control the Time, Place and Manner of Elections, another Art. I sec. 2 requirement that elections for the House take place every two years “by the People,” and the fundamental constitutional right of the people of San Diego’s 50th Cong District to vote and to have that vote counted under both federal constitutional law as well as California’s Constitution in Art II, sec. 2.5 which states:

    ““{A voter} who casts a vote in an election in accordance with the laws of this state shall have that vote counted.” Calif. Elec. Code § 15702 further defines the scope of what “shall” be done under this constitutional provisions by defining “vote” for the express purpose of this Constitutional section as follows: “For purposes of Section 2.5 of Article II of the California Constitution , “vote” includes all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, voter registration, any other act prerequisite to voting, casting a ballot, and having the ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public office and ballot measures.”

    By including both prerequisite acts to voting as well as post-voting acts and acts of appropriate tabulation, it is clear that the full scope of counting is included within the protection of the California Constitution. This broad scope naturally includes a second counting, also known as a recount. Of course, in the electronic voting context, this “recount” would be the first real count by any human being(s).

    Lehto and Simpkins filed a withering response to this argument that the San Diego Superior Court is powerless to protect San Diego voters. They point out what the Court must conclude if it were to accept the defendants’ jurisdictional arguments:

    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.

    Ongoing interference by the House of Representatives or persons associated therewith continues. Attorney Paul Vinovich, Counsel to the House Administration Committee, Chaired by the “retiring” Congressman and architect of HAVA Bob Ney of Ohio, arranged to deliver a letter to San Diego Superior Court presiding Judge Yuri Hofmann, arguing the constitutional exclusive jurisdiction of the House.

    This type of communication with judges is forbidden, unless all other parties are involved, under the prohibition against ex parte contact with judges. In his own handwriting, Vinovich wrote on the fax cover to plaintiff’s attorney Lehto, “Letter delivered to court last evening.” Lehto received the letter via fax just before 9 a.m. Thursday morning, many hours after the letter was admittedly provided to the judge by Vinovich himself. The letter is posted here [PDF], complete with its circular and contradictory reasoning that the subsequent certification of Bilbray after the rushed swearing in confirmed the correctness of the swearing in.

    The Defendants literally argue that the Courts are powerless to stop them (i.e., the Courts are “without jurisdiction”). Friday will reveal whether the courts are indeed powerless in San Diego County. But if they are powerless, then the Registrar of Voters was also powerless to complete the election, and we have a premature termination of the election process, decided in Washington DC, and enforced on San Diego. Much like Bush v. Gore in 2000, the process of elections has been short circuited by a legal coup d’etat that makes no legal sense, but which courts may or may not have the courage to see through.

    One thing is sure. The defendants must also believe, having signed the briefs on constitutional motions to dismiss, that the certification of the election was invalid, because it occurred weeks after the swearing-in of Brian Bilbray deprived everyone except the House of Representatives of any jurisdiction to do anything. On that point of invalidity, the parties all now apparently agree.

    Well ...

    Ain't that beautiful?

    Thanks again, Paul. And best of luck in court!

    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?

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