No surrender: CA 50th Appeal Reply – Land Shark – Busby-Bilbray

[autorank]

Fasten your seatbelts. This is full tilt Lehto, Land Shark. I brought the conclusion to the front just to give you an idea. There is no reason to compromise our fundamental rights and freedoms. Look what happened this week…the human rights jewel of 4100 years of recorded history was stolen by a group of legislators who probably don’t even know that hapeas corpus is vital. Scalia knows. He affirmed that in the Hamdan decision. That’s what scared Congress and the White House. With the legal basis removed, torture is a crime. They ruined habeas corpus to cover their tracks.

CA 50th, the Busby-Bilbray election and election contest are serious events in governance, politics, and jurisprudence. Take a look at Paul’s work and move it around. It’s about time we get a double shot of the political realities of the United States today…
Also, for a review of all four “Scoop” Articles, go here:

Scoop: Appeal Filed in Bilbray Election Challenge with links to the threee previous articles

PDF of REPLY HERE - FIRST ENTRY - TWO LINKS

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.

_________________________
KEN SIMPKINS, Attorney at Law
PAUL R. LEHTO, Attorney at Law
Attorneys for Appellants Jacobson & Ritt

REPLY ARGUMENT

This case is a case of first impression. No prior case or even a cited 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 13 th 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.

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Were this ability to pass upon the constitutionality of actions of other branches of the government not present in the judiciary, there could be no such thing as checks and balances in our system. In that case, Congress's laws could be reviewed under Marbury v. Madison, but if Congress simply acted directly outside of the law, it would be free from any judicial review in doing so.

. The defendants would substitute trust or simply unilateral power for checks and balances, which themselves are, properly understood, a form of distrust. Indeed, one commentator on the Constitutional Convention of 1789 called it a "feast of distrust." H amilton, Marci A., (1999) Representation and Nondelegation: Back to Basics, Cardozo Law Review, Vol. 20:807. In balancing powers, the Founders believed that the right exercise of power fell between two extremes: one holding power could exercise it ineffectually or tyrannically. Either extreme was unacceptable to the Founders. Id.
Although it is axiomatic that the plaintiff is always the master of their complaint and thus gets to choose the parties sued and the claims to be made, the defendants somewhat condescend to argue that appellants should have contested some of the other 136 political races on the ballot on June 6, 2006, not the most important and contested one at the top of the ticket: a special election for Congress. Apparently, since the defendants argue that only candidates can file a contest under 2 USC 381, mere citizens are prohibited from expressing interest in or opposition to in any political race for "the People's house" of Congress, no matter the facts or result. See Bilbray brief, pages 12-13.

In saying this, the defendants are literally saying that the proper construction of the Constitution's requirement that elections for the House of Representatives be "by the People" is that the People can cast their votes, but they may not under any circumstances complain of or correct any irregularity or fraud, in this case or any other. Only candidates can. But those general election candidates who may contest are also chosen in primary elections, which, if sufficiently flawed or rigged, means the people may never get a candidate willing to risk a career with a contest.

Neither the election itself, nor the defendants' construction of the law adds up properly. Even while purporting to state the election results, Registrar Haas provides a total number of votes of 163,931, which is different than the addition of all the vote totals for the various candidates Bilbray, Busby, Griffith and King of 158,033. See Haas Brief, at 2. This difference between the candidates' totals and the total numbers of ballots of 5,898 is greater than the announced margin of victory in the same race, and thus this discrepancy alone could change the election's result. There are others pleaded as well. Any "explanation" for the above discrepancy would be speculative.

Moreover, all of the counting of the electronic vote in this case was conducted under conditions of trade secrecy. No one in the Registrar of Voters' office, without a hand recount, has personal knowledge of the true count or any count at all except the flawed manual audit of 1%. Our elections system is based upon verification, observation and transparency, not based on blind trust of speculating public officials with human foibles of self-protection. Unanswered questions concerning the election results can only be handled at a trial, and not by mere motion, as actually occurred in this case.

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:

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 13 th.

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 election.

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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 13 th 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.


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.

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The central issue in this case is not one of "jurisdiction" but of the validity of such a premature swearing-in. That places the issues in this case squarely within the Courts' power even on membership issues in the House. See, Powell v. McCormack. As held in the US Supreme Court case of Lebron and argued in appellants trial brief, the Courts always have the central task and role of interpreting the constitution and ruling upon whether actions are Constitutional or not, and Congress does not control those holdings by statutory pronouncement, as they did in Lebron with regard to Amtrak, that Congress has conclusively deemed Amtrak not to be a government entity. Lebron v. National R.R. Passenger Corp., 513 U.S. 374 (1995). The Lebron court wisely observed that if this were to stand, the FBI could insulate search warrants from review by conclusively presuming them to be valid.

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. Those functions are shared, and the Thorsness v. Daschle and other cases amply demonstrate history of overlapping state/federal roles.

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. Yet here, Bilbray and Haas insist that the swearing-in restricts and contracts the ability of the state court to do a recount. Haas does so even though he certified election results as legal and final he now claims he had no power to certify because of the exclusive jurisdiction of the House, making his "unconditional certification" of the election without power to do so a fraud on the people of San Diego County.

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, but all voters are entitled "equal dignity."

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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.

_________________________
KEN SIMPKINS, Attorney at Law
PAUL R. LEHTO, Attorney at Law
Attorneys for Appellants Jacobson & Ritt

[annabanana]

1. There is no way that their case

is anything but dust...

You are GREAT and . . good.

[Swamp Rat]

2. k&r

:kick:

[Mnemosyne]

3. k and r! n/t

:kick:

[Kurovski]

4. K&R.

:kick:

[bleever]

5. No surrender,

and STOP TREADING ON ME!

[EFerrari]

6. Kick

[upi402]

7. k/r n/t

[Land Shark]

8. Thanks Auto for this thread: "Full tilt" huh? Itsa Simpkins attack also

[BeFree]

9. Kicking

...ass and taking names. Man o' man.

[Land Shark]

11. BeFree is an increasingly relevant concept for a screen name

thanks beFree

[autorank]

12. BeFree is a true "sentinel of democracy" and great debater.

He'd give you a go for your money Shark, me too, so it's great to have him on the side of democracy.

Fearless in the fase of the foul trash we have to put up with from Quislings and collaborators.

[BeFree]

14. I am honored

To be so recognized by two of the finest people I've ever read. Fortunately we have little to debate amongst ourselves, you, Land Shark, and I.

Not only is my screen name BeFree, but I truly have a level of personal freedom that, luckily, is at a level as great as anyone I know. Now, having that freedom is of the utmost importance to me. And being that my freedom is self recognized as congruent and even dependent upon others having and holding a similar freedom, it behooves me to see too it that other's freedoms are as preserved as mine.

The vote is the most shared way of preserving our freedoms, therefore the preservation of our votes is a priority, and folks such as you two, and others here, in your efforts to preserve our votes, means an awful lot to me.

We shall persevere.

[Ellipsis]

10. kick n/t

[GuvWurld]

13. Kick (eom)