Voters, State Law, Rendered Meaningless, Plaintiffs Likely to Appeal Decision to CA Supreme Court...
By Brad Friedman on 3/22/2007, 6:35pm PT  
"We need not (and do not) resolve the question of whether the election contest at issue here fits within the category of election contests that may be entertained without infringing on Congress' authority because the instant dispute can, and should, be resolved on a much narrower ground — mootness."
-- CA Court of Appeals (4th District), Majority Opinion, Jacobson v. Bilbray, 3/20/07

Need more evidence for why election results need to be right on Election Night? Look no further than the now-infamous CA50 Busby/Bilbray Special U.S. House Election to replace Randy "Duke" Cunningham last June.

The latest chapter finds an Appellate Court in California dismissing the case on the grounds that the issue is now "moot" because the six month term for the original election being challenged has now ended. That, despite the defense never even having raised the issue. And thus, the voters' right to even have a proper recount as afforded by state law, in order to find out who had the most votes in an election, is usurped by the U.S. Congress's ultimate Constitutional authority to decide who will be seated in its chambers....

Paul Lehto, one of the attorneys on the case said in a statement today released by the plaintiffs (and posted in full at the end of this argument) that "This stunning failure to uphold Constitutional provisions for checks and balances renders local Congressional elections meaningless."

The BRAD BLOG followed the case in great detail since we broke the original story, the day after the election, of how all of the pre-programmed, election-ready, and hackable-in-60-seconds Diebold voting machines used in the San Diego election were sent home with pollworkers for days and weeks prior to the election on "sleepovers" (a word which we were credited with coining in this context, and has become well known ever since). That illegal violation of secure chain of custody effectively rendered the voting machines uncertified under both state and federal requirements.

Well, the election has been contested ever since by two California voter plaintiffs. After the San Diego Registrar, Mikel Haas (one of the country's worst), arbitrarily and capriciously blocked a legitimate request, under state law, for a recount of the votes to determine the actual winner, a complaint was filed in CA Superior Court.

It was ultimately dismissed on the grounds that the then-Republican U.S. House had jurisdiction over the seating of their members, rather than California courts or voters. That, despite the fact that they had rushed to swear in the Republican Bilbray just days after the election, even after we had begun reporting on the illegally used machines, while there were still 68,500 votes uncounted and all of several weeks before the election would even be certified by the state.

The case was then appealed to the 4th District Court, which rendered its opinion this week in a split decision, finding the matter "moot" because Bilbray's short term to fill Cunningham's seat had ended. (Bilbray went on to run again, this time as an incumbent last November, and was again reported to be the winner after the same "sleepovers" occurred in that race.)

Phew. See our copious CA50 Busby/Bilbray archives for much much more.

We'll point out that "mootness" was never raised by the Bilbray team, either during the original case or in the appeal, and thus this case, The BRAD BLOG has been told by the plaintiffs and attorneys involved, will likely be heading to the CA Supreme Court.

For now, we'll point you first to the North County Times' reportage on this week's Appeals Court decision, and these two grafs which underscore how the voters of San Diego, by dint of a Rightwing Registrar screwing them over on Election Day, may never be allowed to find out who the voters of the district actually voted to send to Congress:

Associate Justice Joan Irion wrote for the court that two cases cited by Jacobson and Ritt's attorneys "provide some support" for the position that a state court can consider a challenge to a congressional election even after the House seats someone as a member, but that the appeals court did not need to address that issue because the appeal was moot.

"Contestants' assertion that the House might, if faced with a contrary state court judgment, revisit its decision to seat Bilbray, has lost whatever force it might originally have possessed," Irion wrote for the court. "Now that the contested term has been completely served, there is no longer any conceivable action that the House (of Representatives) could take as a result of a state court judgment rendered in contestants' favor... ."

In other words, after Election Night, if you can delay any challenges to the elelection long enough, the voters don't actually matter (attention: Christine Jennings in FL-13!).

We'll update this story, of course, as the appeal moves forward to the CA Supreme Court.

The Appellate Court decision, indicating merit, but dismissing on grounds of mootness, is here [PDF]...

Lehto has more to say on the decision here....

The press release, issued today by the plaintiffs and their attorneys, follows in full below...

Contact Linda A. Poniktera - 619.987.7200

San Diego Court Abdicates Jurisdiction Over Elections To Congress

Pattern Of Obstruction Continues To Block Citizen Oversight, Rendering County Election Process Meaningless

San Diego, CA March 21, 2007 – The California Court of Appeal, fourth appellate district yesterday dismissed an election contest lawsuit which alleged improprieties in the June 6, 2006 special election held due to the resignation of disgraced Representative Randy Cunningham of the 50th Congressional District. Citing article I, section 5, clause 1 of the United States Constitution, the trial court found that the Constitution vested in Congress (the House) the exclusive authority to "be the Judge of the Elections, Returns and Qualifications of its own Members," and that therefore the court was without jurisdiction. The court ruled that the contest was rendered moot by the November elections.

According to election integrity attorney Paul Lehto, co-counsel for the plaintiffs, “This stunning failure to uphold Constitutional provisions for checks and balances renders local Congressional elections meaningless. We now have a pattern of San Diego judges ignoring citizens’ legitimate rights to oversee their elections, which is a breeding ground for corruption of local election officials.”

Plaintiffs Gail Jacobson and Lillian Ritt brought the election contest after San Diego County Registrar of Voters Mikel Haas prevented a voter-requested recount. Haas created obstacles to, and misinformation about, the recount process, including canceling a meeting and then claiming that Ms. Jacobson had abandoned her request by not attending the meeting. The contest was later dismissed, with Brian Bilbray (R CA-50) arguing that he had already been sworn in, and that citizens no longer had the right to count the votes. At the time of the swearing-in 65,000 votes had not yet been counted. Judge Yuri Hofmann agreed not to allow citizens to count the votes and dismissed the contest.

The appeal was filed September 18, 2006. The court did not require that briefing be completed until October 19 and did not set oral arguments until mid-December.

According to the co-counsel for plaintiffs, Ken Simpkins, “Election contests are entitled to priority so that citizens can get decisions on disputes before they become meaningless. By delaying a decision in this case until after the November election, and thereby creating the mootness issue, the court gave themselves a way to avoid addressing the important constitutional issue of whether counting votes matters in a democracy. ”

A full version of the unpublished decision is available at:

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