The BradBlog post has been updated:
http://www.bradblog.com/?p=3325#more-3325It now includes a summary by Lehto/Land Shark:
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).
More:
http://www.bradblog.com/?p=3325#more-3325
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