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Court rules against voters supervising elections, attorney tells Raw

Miriam Raftery
Published: Wednesday September 6, 2006

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A judge has dismissed a challenge filed to California’s hotly contested 50th Congressional race, in which the House seated Republican Brian Bilbray just 7 days after the election -- before the race was certified and before all votes were counted. RAW STORY has followed the case in earlier reports.

According to the official count, Bilbray nosed out Democrat Francine Busby in the special election to fill a vacancy left by disgraced Republican Duke Cunningham, who was convicted of bribery and other charges.

For the controversial ruling, Judge Yuri Hofmann relied on arguments brought by attorneys representing Bilbray and San Diego’s Registrar of Voters to dismiss the case, relying on Article 1, section 5 of the Constitution to find that only the House of Representatives has jurisdiction over its members' races.

Now a Nevada court has extended House powers even further, ruling on Friday that citizens and courts have no power to object in a Republican primary election – even though neither candidate is an incumbent currently serving in Congress.

In an exclusive interview with RAW STORY, Paul Lehto, attorney for the voters who filed the CA-50 challenge, reveals why he believes this is a dangerous trend that could be used by legislators to seize and keep power in other races nationwide – starting with the race to fill Tom DeLay’s Congressonal seat.

Q: What do you think of the judge’s decision?


A: It’s the kind of decision that you expect from a trial judge. The judge confided in counsel twice, including in chambers a couple of days before he made this decision, that he was not very familiar with the law. Based on the learning curve that anyone would have, he got up to first level but not the understanding that article 1 section 5 is being interpreted by the defendants in such a broad way that it violates other sections of the Constitution.

I think there are some signs in the opinion that the Judge is consciously setting this up for appeal. His second basis for dismissal was that affidavits of the contestants that were filed as part of the complaint are not based sufficiently on personal knowledge. Normally one has to testify from what you personally have knowledge on and not just hearsay. But combine that with [the fact] that I argued in oral argument about secret vote-counting, and the judge was paying very close attention. If you think about the invisible and proprietary vote counting that took place here, it’s not possible for any citizen to have firsthand knowledge about how the vote was counted.

What’s happened here is that people read the opinion and think, 'Oh my god the lawyers didn’t do a good job writing the arguments,' but a deeper analysis shows that the standard put forward is impossible to meet.

Q: What are your next steps or options? Will you file an appeal, and what are the odds of an appeal succeeding?

A: The general background is that first, on civil appeals the success rate on average is 30% or less… If what we are doing is defending elections against premature terminations, then we are defending democracy and it should not enter into our analysis whether we will win or lose.
If you want to take something up on appeal and litigate the rights of others you have to be extremely serious about what you are doing …At this point we are putting out feelers to see if financially, people are really going to stand behind us or not.

Q: Do you believe the CA-50 case should be appealed?

A: I believe very strongly that both an appeal should go forward and should not go forward, interestingly enough. It should go forward because even if the law clearly prohibited the state and citizens of California from supervising their own elections for Congress, that should be appealed and the court should be requested to change that law or interpret in such a way that it doesn’t apply to the facts of this case. From that standpoint, we are defending democracy here so there should not be any discussion of winning or losing… We should be willing to go down with the Alamo…

But there is also a strategic point for not bringing an appeal, and that is if it’s an important public issue, the appeal must be very carefully prepared and fully-funded. It’s wrong to sacrifice the sacred democratic rights of other people without being very, very serious about it.

Q: Is there a strong need to reach out for funding outside of the San Diego area?

A: Yes. At this point… my trial expenses have not been paid fully, or my travel expenses out here.

Q: What is your time frame to file an appeal?

A: There are difficult ways to calculate deadline. It could be as early as this Friday or could be a week after that.

Q: How might the GOP use this in other races?

A: It’s only taken them three days to use it again, and that was in Nevada.

Q: Did they cite this specific case, or rely on the same Article 1, Section 15 argument used to win the case in the CA-50 race?

A: You can’t cite this case because it is not precedent; because to be precedent it needs to be a published decision. It can’t be published because trial courts in state courts are never published. …A few in federal court are. This case cannot possibly become published unless we appeal – that’s why you want to be sure that if you appeal, you are going to do a great job on it – and you can’t really do a good job on it on a part-time pro bono basis unless you are independently wealthy. You need to work around the clock.

Q: What happened in Nevada?

A: A Congressional election contest in Nevada’s second Congressional district was dismissed on Friday on the same Constitutional jurisdictional grounds in the Republican primary. So even though Article I, section 5 refers to the house judging the qualification of its members, nobody in this primary is a member. It’s an open seat, but the judge bought that argument.

Q: How far might this be carried? What could [they] do next?

A: The next thing is they would look at a Democratic Party and maybe Speaker Hastert or the House could decide that they have a certain position, and what if the Senate decides we’re the sole judge of our members? Now that they’ve taken the absurd step of overturning a primary, the next step is for them to say we support Lieberman, not Lamont.

Q: What are the ramifications of this for the race in Tom DeLay’s district?

A: The Democrat in DeLay’s district was running unopposed because the Republicans did not nominate someone who was eligible at that time. Cngressional Quarterly presently lists that district as leaning Democratic, so that would be a pickup of a seat for the Democrats. On Monday, August 28, the judge put on the Internet his tentative decision and there was even an Internet press report. On Tuesday [August 29] the same day as the formalization of Judge Hofmann’s decision to dismiss, the Governor of Texas suddenly announced a special election would take place in Texas to happen as the same day as the general election.

Q: How might Article 1, section 5 arguments be used in that race?

A: There’s one main Republican candidate way ahead of others, the favored candidate the Republicans would be running as a write-in against Lampson, the Democrat running for the full term. So there are two elections, one for a two-month term, one for a two-year term, and Lampson is unopposed for the two-year term except for write-in candidates... This detail is interesting. Initially Lampson was quoted as saying he’s running for the special election too, but then a couple of days later, he changed his mind and said he would not run in the special. But I think strategically, that is a much better decision because if he runs in the special there is a head to head race for Congress and if a Republican wins, they could argue that but for a technicality she would have won the general election too, and they could just choose to swear in the Republican for the short term, but also continue to keep her in office.

Q: How does that tie-in to what happened in the CA-50 case?

A: The tie-in is the way that they keep her is through article I, section 5, the power of the House to say that we have the sole power to judge our elections and we think she was elected… If they have [absolute] power over their members, they could do that.

Now that Lampson has decided not to run in the special election, a Republican will win for sure. There will not be a head to head race. But Republicans could still decide if a Republican gets more votes in special than Lampson does in general, they would still have that argument, a little bit weaker, and they could still do it.

Q: Do you foresee this being used on a national level?

A: Another completely separate and independent way in which this whole power could come into play would be if we have the long-predicted train wreck happen in November with widespread meltdown and problems with machines, such that it appears that election results are uncertain. Then the Republicans can use the swearing-in power at least as broadly and wrongly interpreted by the trial courts in California and Nevada to either keep Republicans in office or to swear in the candidates that they deem elected.

Q: Let’s carry this to the height of absurdity. What if you actually had a recount that proved a "winner" really lost, as happened in Pottwattamie, Iowa. Could the GOP keep in office someone who actually lost by a landslide?

A: Yes. Because they have interpreted exclusive power, the only thing that could be done is to make the House pay a political price, but without a media echo chamber, the political price may not be significant at all.

Q: Please provide your analysis of the Article 1, section 5 arguments.

A: In the final analysis, the fact that the courts' interpretation of Article I, section 5 is overly broad, can be illuminated by understanding that the framers of the Constitution had recently fought against tyranny in the form of King George, and it is enormously unlikely that as part of the effort to protect this country against future tyranny with the constitution of the US that the framers left a huge loophole in which the majority in Congress could simply perpetuate its own membership… Madison said that the concentration of power in one hand is the definition of tyranny.

The key is that the courts can or must review the steps leading up to membership in the House, but once someone is actually legitimately in the House then it is up to the House internal jurisdiction, because of course you would not want the courts to interfere in the internal operations of the House or Senate. But the courts can, should and must review whether elections were proper, because those are the steps preliminary to triggering exclusive power. At the request of the defendants, the court has interpreted Article I Section 5 power to cover not only everything that happens within the house, but everything leading up to it including now the primary in Nevada. This is now not just election nullification, but it’s democracy nullification.

Q: What are the most important lessons learned from this case?

A: On the broadest level it’s very obvious that there are people who want to prematurely terminate elections and eliminate the public’s right of access to information about those elections. The case also stands for the fact that [California's] one-percent audit ends up being useless at best, and recount rights are useless when they are priced too high. And if you have ballot box stuffing, the recount will appear to validate the fraudulent results. If you are evaluating legislation concerning elections, keep in mind that any safeguards or checks and balances that you put in the process that occur after any initial results are reported are reduced in value by something like ninety percent, because you may never get there. As soon as you announce initial results of an early winner or loser, election officials start stonewalling anyone’s results to prove otherwise. You need front-end loading: If you want audits, have them occur before the results are reported.

Q: In court, the defendants argued that Francine Busby had the right to challenge the seating of Brian Bilbray in the House, but did not. Should Congressional candidates exercise their rights to challenge seating an opponent when votes were not counted or races certified?

A: Certainly every candidate should know their rights, but the process under federal contested elections act, which is open only to candidates by filing with the clerk of representatives and having the House decide is not a process in which I have any confidence.

Q: Wouldn’t a challenge filed in the House at least draw national attention to this problem?

A: Possibly, but it would also whitewash things… Even if you were so lucky as to have a candidate who wants to contest, all I can say is good luck.

There have been cases where people have successfully won on these federal challenges in the House in the past, but I don’t think you can count on it now. At this point in time, these assholes will do whatever they want to and there’s nothing anyone can do.

The other point is whether citizens have any right at all to get involved in supervising a federal election. My position is that citizens can and must have the right to supervise an election and police their own challenge to an election. Candidates are among the last people in a race who are going to want to contest the race because there is a lot of public condemnation that will be heaped on them as a sore loser... They will be made to pay a very high price, unlike a citizen. In our case, I don’t think the citizens have been publicly vilified in the press. They have not had a price to pay like a John Kerry or a Francine Busby would. That’s one reason why you shouldn’t count on candidates to file an appeal. The other is that the source of all power is from the people and the people have to take the right to challenge their own elections even if a candidate is deterred from doing so.

Q: Where can readers send donations to cover legal costs?

A: www.velvetrevolution.us or www.nosleepovers.org.