Land Shark: Not Going Down Without a Fight-CA's 50th Cong. Dist. [View All]

[kpete]

"Patriots are not revolutionaries trying to overthrow the government. Patriots are counter revolutionaries trying to prevent the government from overthrowing this Constitutional Republic."
-Thomas Jefferson

'We the people are the rightful master of both congress and the courts - not to overthrow the Constitution, but to overthrow the men who pervert the Constitution.'
- Abraham Lincoln

REPLY BRIEF FILED BY APPELLANTS IN THE CALIFORNIA 50TH CONGRESSIONAL DISTRICT ELECTION CONTEST APPEAL.

435 Congressional Races Potentially Affected by Appellate Decision Expected Prior to November 7


SOOOOO.....Which will we hear more about FIRST?:

A: The rumored and reported grand jury investigating Rep. Brian Bilbray (R-San Diego) for voter fraud, <http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=132&topic_id=2892658> or

B. The appellate decision in the Busby/Bilbray election contest appeal, expected prior to the November 7, 2006 election?

C. Bilbray's ties to Abramoff will come to greater light. <http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=364&topic_id=2207141>

Apparently, the people of the 50th Congressional District, the election contestants Gail Jacobson and Lillian Ritt, their attorneys Paul “Land Shark” Lehto and Ken Simpkins, and every democracy activist in the 50th Congressional District of California refuse to let THEIR elections go down without a fight. Perhaps we should add some prosecutors in the San Diego county prosecuting attorney’s office to that list, but they are obligated to keep the existence of grand jury proceedings secret.

What’s the evidence for this fight going on?

Check out some excerpts from the brief being received October 20, 2006 in the Busby/Bilbray appeal, concerning the swearing in of Brian Bilbray by Speaker Hastert only 7 days after the June 6, 2006 special election for the remainder of the term of criminal Republican Duke Cunningham, and long before the votes were all counted or certified or before any citizen could legally or possibly ask for a recount or file an election contest.


REPLY ARGUMENT

This case is a case of first impression. No prior case or even a cited premature swearing in that was never litigated at any time features facts like these: ballots improperly counted, the machinery of democracy itself impaired and destroyed, safeguards abandoned, electronic votes counted in secret, come from behind wins, defective manual audits that are not followed up on, and actual results of the election showing irregularities on their face. Still more remains to be discovered because of governmental stonewalling of information requests.

This case is also unique because, unlike other swearings that the defendants attempt to point to where certificates of election were not yet received at the time of swearing, this election also features disputed circumstances including (1) a controversial and contested election, (2) where the claimed results were very close, (3) where the returns of the election on their face show absentee voter precincts having turnouts many thousands of percent higher than registered voters, (4) where a pattern and practice of stonewalling information requests at least until after statutory deadlines, and (5) where electronic voting machines were sent out to hundreds of pollworkers for over a week, (6) where it is known that access to one of those machines for one minute is sufficient to alter the result of the entire election in an undetectable way, and (7) where the counting of the electronic votes took place in absolute secrecy where no person, not even the registrar of voters, has personal knowledge of the legitimacy of the electronic count taking place on trade secret software, and (8) where the defendants admit in their answer that the mandatory audit, required prior to a certification of the result, revealed errors among its 1% sample, yet no action was taken regarding the other 99% of the vote, and (9) where there were at least 12,500 uncounted paper ballots on June 13th, 2006, the date when the oath was administered to defendant Brian Bilbray.

If the swearing of Bilbray deprives California of all jurisdiction, as Defendants contend, then the remaining vote counting after June 13th was also void, the certification of the election was void, and the mandatory audit required prior to certification or finalization of an election was also void. The defendants simply fail to account for the breadth of the construction they find necessary to uphold their position and the ruling of the trial court.

Despite the dramatic implications of their arguments as outlined above, the defendants admit of no conditions precedent to a proper invocation of Art. I, sec. 5 powers, under their view. They style the power of the Speaker of the House as an absolute power, something anathema to our system of government. Consequently, if the Court’s pretrial ruling on jurisdiction is upheld even though votes remain uncounted, there’s simply no reason why Congress can’t swear in its preferred candidate even before an election takes place, arguing that the elections are irrelevant once a “conclusive determination” has been made by the House or Senate, and majorities in Congress can perpetuate themselves freely without regard to elections and have the support of the judicial branch in doing so.

The facts of this case are even more troubling than they seem, since they are ultimately to be applied to a construction of Article I, section 5 powers under the Constitution so broad and unchecked that it would allow Representatives to be sworn into Congress without the benefit of complete elections, or even without benefit of election at all. This argument has not been denied by the Defendants.

In the above context, the following are additional facts taken from the Election Contest Petition, except in cases where not citing to the Petition, that are also entirely ignored by the Respondents to this appeal:


(You can skip this if you know the facts already)

Bilbray was sworn in prior to certification. (J. Appen. Petn. For Election Contest, para. 4). Bilbray was also sworn in prior to the legally required manual audit of the election.

A one percent tally is required by law to audit the election results. (J.Appen., Petn. for Election Contest, pg. 4, para. 20.) It revealed flaws that are admitted to in the Defendants answer, but no follow-up on the other 99% of the votes was proposed or performed.
The Congressional Record appended for purposes of Bilbray’s swearing ceremony states that 68,500 ballots were still uncounted as of the date of the letter from the Assistant Secretary of State of California.

In press accounts in the San Diego Union Tribune on or after June 19, 2006 that figure was later modified to 110,000 uncounted ballots.

The registrar’s website on June 13th stated that approximately 12,500 or more votes were still uncounted when Bilbray was sworn in on June 13, 2006, yet the original base figure of 68,500 was not adjusted until after the swearing, so it is unknown how many more ballots than 12,500 were still uncounted on June 13th.

Haas directed that legally required security procedures and chain of custody be abandoned on voting machines by allowing individuals to take the machines home. (J.Appen., Petn. for Election Contest, pg. 3, para. 16.) This violated conditions to certification of the voting machines in the first place.

In violation of security procedures, election officials allowed poll workers to retain possession of voting machine keys after no legitimate reason for possessing the keys existed. (J.Appen., Petn. for Election Contest, pg. 3, para. 17.)

Diebold voting machines are specifically designed with a switch that allows the voting machine to boot from an external flash memory allowing all certified software and other alleged safeguards like sticker-based seals to be totally circumvented and rendered ineffective. (J.Appen., Petn. for Election Contest, pg. 4, para. 19.)

Election officials knew about security flaws and released them anyway. (J.Appen., Petn. for Election Contest, pg. 4, para. 24.)

Polling places in San Diego County were scheduled to open at 7 a.m., on June 6, 2006, but some did not open until as late as noon on election day. (J.Appen., Petn. for Election Contest, pg. 7, para. 34.)

Over five hundred absentee voters ballots were mailed late and/or not received timely. (J.Appen., Petn. for Election Contest, pg. 7, para. 35.)

Officials added to or mixed other ballots with the ballots of given precincts with the intent to change the result of the election and obfuscate reconciliation attempts matching registered voters and ballots, particularly with regard to all absentee voter precincts. (J.Appen., Petn. for Election Contest, pg. 7, para. 36.)

Officials committed errors included reported election results exceeding registered voters by several thousand percent in numerous precincts. (J.Appen., Petn. for Election Contest, pg. 7, para. 38.)

Ballot definition errors resulted in the flipping of votes between candidates Bilbray and Busby, changing the result of the race. (J.Appen., Petn. for Election Contest, pg. 8, para. 42.)
Officials set the cost of a recount of the votes at $1.00 or more per vote recounted compared to other counties, such as $0.14 per vote in nearby Orange County. (J.Appen., Petn. for Election Contest, pg. 8, para. 46.) This was intended to burden and frustrate recount and other statutory rights to information, Appellants allege.

Appellants demanded production of public records. (J.Appen., Petn. for Election Contest, pg. 2, para. 14.) Haas intentionally acted to avoid complying with the request for public records. (J.Appen., Petn. for Election Contest, pg. 3, para. 15.)

Access to election records has been granted on more favorable terms to others than to Appellants. (J.Appen., Petn. for Election Contest, pg. 9 para. 47.)

Haas arbitrarily limited the production of records to those that, in his judgment, are "relevant" when the law of public records and California public policy does not allow Haas to make an arbitrary determination about what records are "relevant" or what Contestants will be allowed to know about their election of government representatives. (J.Appen., Petn. for Election Contest, pg. 9 para. 48.)

Ballots were not included in the appropriate totals of votes cast, in that absentee ballots were lumped into large precincts and separated from their proper registered precincts. (J.Appen., Petn. for Election Contest, pg. 10 para. 52.)

Absentee precincts reported having turnouts of 4,750% and higher relative to registered voters reported for those same precincts. (J.Appen., Petn. for Election Contest, pg. 10 para. 52.)
Altogether these facts amount to aiding and abetting acts of fraud by elections officials. (J.Appen., Petn. for Election Contest, pg. 1-3.)

Altogether, these and other facts establish that the swearing in, and the subsequent exclusive jurisdiction argument and stonewalling of information requests, have combined to cover-up the true circumstances of an extremely flawed and invalid election, reversible for a number of reasons. California Courts may declare the results, and then Congress may act. Certainly a recount can be had.

The response of Defendants Bilbray and Haas is merely to say that a “conclusive determination” was made by the superiors of the people of the State of California, namely the House of Representatives, and that once this determination is made, no mere citizen may at any time or under any circumstances contest the election because only candidates can do so under 2 USC section 381. And, defendants further require of the citizens of this state, that any candidate who wishes to contest such a congressional election result must do so with the House of Representatives itself, the very same House that made what the contestants of this election believe was a premature, corrupt, self-serving decision to terminate an election in midstream, before any date on which a recount could be legally requested, because under their view June 13th is the date on which all power transferred to the House, by virtue of the House’s decision to swear in “unconditionally” Mr. Brian Bilbray.

There is only the naked assertion that a swearing without objection of record is a “conclusive determination” of the winner of an election and seating in Congress, instead of just conclusive evidence of merely taking an oath. If it is, then there need not be any meaningful elections “by the People” for the Congress, because there can be no review of an improper swearing-in at any time. Thus, the majority of the House could simply choose any candidate they wish.

Voters will soon decide 435 House races on November 7, and Defendant Bilbray could earn the thanks of some colleagues in the House if this Court holds that the House can swear in its favorites, and invite the non-favorite challenger to ask for what amounts to reconsideration by filing a futile FCEA election contest with the clerk of the House itself. Perhaps the term is now passé, but the Founders considered such devices to be tyrannical.

{snip}

Nevertheless, and remarkably, Bilbray applies to this case a rule claiming that the House’s “decisions about which ballots count, and who won, are not reviewable in any court." Bilbray brief, at 4. And he cites Barry v United States which restricts the scope of section 5’s exclusive territory with the language "to render a judgment which is beyond the authority of any other tribunal to review." 279 U.S. 597, 613-14 (1929). Such cases can only apply to the House acting in a judicial capacity, which it does not when it swears in a member.

But in this case, there have been no judicial decisions by the House about which ballots count, no proceeding or hearing under the Federal Contested Elections Act, there has been no investigation or proceeding by the House that must be deferred to, even arguably. We have no competing FCEA election contest judicial proceeding in the House that is not reviewable in any court, there is only a competing arbitrary power that purports to displace the statutory scheme of elections in violation of the Constitutional right of the people of California to vote, and also to have that vote properly counted in every respect including tabulation, as specifically required by the Constitution and implementing statutory definitions of vote counting.

In the final analysis, Article I, section 5 merely refers to the House and Senate being the “Judge” but it does not refer to being the sole courtroom, the sole venue, or the sole source of law and decision.

{snip}

Finally, the defendants’ construction would amount to a constitutional violation in and of itself. As argued in opening brief and not responded to, any restriction of the scope of state power by the unilateral act of swearing in would violate Equal Protection under Bush v. Gore by changing election rules after the election, and also by denying recount rights to some voters in the 50th Congressional District, but not to other voters in other California Congressional Districts in San Diego County. This is the same difference in recount rights that Gore was held to have unconstitutionally requested. Bush v Gore, (2000) 531 US 98.

{Comment not from brief: All voters are entitled “equal dignity” not the indignities of election nullification, election termination, and advice from California’s latest “terminator” Brian Bilbray that the people of the State of California should focus their interest on something other than the top of the ticket race, where their input might be more welcome. Id. }

FINAL CONCLUSION

Once properly understood and placed in the Context of our entire governmental system, there is no valid principle of law that defeats the full and sound operation of elections of the people, by the people and for the people. Because “the consent of the governed” obtained via elections is the very basis and foundation of our entire system of government, any holding by this or any other Court that undermines the full and sound operation of open and honest elections proceeds from a treasonous premise: namely, that it is the proper function of law to attack the Constitution and the structural foundations of representative democracy, when in fact such a construction is instead the very picture of a law that is unconstitutional and must be struck down.

The Defendants have proposed a construction of the law that defeats the full and sound operation of elections by the people. The Defendants serve our Constitution, our representative democracy, our elections, and therefore their country, poorly. “We the People” intended no such thing.

DATED this 19th day of October, 2006.

/s/ (big enough for them to be able to read it without their bifocals)
_________________________
KEN SIMPKINS, Attorney at Law
PAUL R. LEHTO, Attorney at Law
Attorneys for Appellants Jacobson & Ritt