ADDITIONAL MATERIAL: Details of Attorney Oral Arguments Concerning Whether the U.S. Congress Can Overrule State Election Laws Simply by Swearing Someone In
Also, Updates on Some of the Sad Players...Some Gone, Others (Hopefully) on Their Way Out...
By Brad Friedman on 1/10/2007, 11:05am PT  

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...

Oral argument went very well. Paul was as passionate and as articulate as ever. The defense arguments were flat and uninspired. The court was interested and one judge commented, "It's an interesting case." Such comments are rare. The spectators were divided in the gallery by sides. The side for us was virtually fully. The side for them had one person sitting in it: Mikel Haas.

It could be anywhere from days to months before a written decision is released.

Mark E. Smith over at OpEdNews filed a detailed report from the courtroom. Here are a few of his highlights:

Two of the judges, one of whom is known locally as a staunch Republican, tried to divert attention away from the issues by bringing up the distractions of whether or not the request for a recount had been paid for, and whether or not a recount would change the outcome of the election. Paul handled both diversions well, pointing out that the jurisdictional issue is created upon filing the request for a recount, and that the costs cited by the Registrar at the time, eight times what previous recounts had cost, appeared to be a deliberate attempt to prevent a recount, and that the issue was not whether a recount would change the outcome of an election, but whether the court has jurisdiction to order a recount, or whether Congress, by swearing in a member, can nullify an election and take it out of the hands of the voters.
Paul explained clearly that if Congress wants to alter State elections procedures, according to the Constitution they have to do it by enacting a law, and that the swearing in ceremony is not a law and cannot change State elections procedures.
The issue is not, as the defense (and apparently some of the judges) would have it, solely a question of who won and who lost an election. Notwithstanding who won or lost, we the people have the right to know that our State elections procedures were carried out in accordance with law, that any voting machines used were properly certified, and that they functioned properly and did not flip votes from one candidate to another, "lose" thousands of votes, or malfunction in any of the myriad of other ways that have been documented all over the country.

If the court agrees with the plaintiffs, the case would likely be sent back to be heard on the original merits, which were never tried in the case since the original Judge agreed with the Republican U.S. House at the time, ruling that California voters had no legal right to verify the accuracy of their own elections.

The cost for the ongoing challenge is being borne, in large part, by (of which we are co-founder) and so we continue to welcome your contributions to help defray.

In the wake of the Busby/Bilbray matter and subsequent horrendous elections administration by the now-lonely Haas, folks from both the Right and the Left have called for his resignation.

Oh, and about that very partisan McPherson deputy, Susan Lapsley --- the one who dashed off that fax to encourage the U.S. House to swear in Bilbray just seven days after the election, and a full 16 days before it would be certified by the state: she has now been effectively replaced in the new Bowen administration by election integrity watchdog, attorney Lowell Finley.

Keep hope alive.

UPDATE: Kpete over at DU has more details on the oral arguments made Monday as does Mark E. Smith at OpEdNews. Both were in the courtroom during the arguments. I've added a few of Smith's excellent observation to the original article above.

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