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Court told votes don't have to be counted, certified

Miriam Raftery
Published: Monday August 28, 2006

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San Diego, CA -- A motion to dismiss a congressional election challenge in California took on national implications last week when defense attorneys argued that no court has jurisdiction to intervene in an election after Congress has sworn in a member, RAW STORY has learned.

Superior Court Judge Yuri Hofmann heard arguments Friday on a motion to dismiss the election challenge lawsuit filed by voters seeking a full hand recount in California’s 50th Congressional district.

Paul Lehto, a nationally prominent election law attorney representing two voters who filed the suit, called the motion an “invitation to the Court to ratify a seizure of power” that amounts to “invading the sovereignty of a state.”

Republican Brian Bilbray was sworn into Congress just seven days after a special election against Democrat Francine Busby – before all ballots were counted and a full 16 days before the election was certified. On Friday, attorneys David King and Jim Chapin (representing Bilbray and San Diego Registrar of Voters Mikel Haas) argued that a lawsuit brought by two voters should be dismissed because only Congress has the power to seat or unseat its members. (See previous RAW STORY coverage of this case.)

Defense attorneys cited Article 1, section 5 of the U.S. Constitution, which states that each House is responsible for the elections of its own members. Defense lawyers also noted that on June 13th, House members seated Bilbray by unanimous consent, and that Busby could have filed her own challenge in the House.

Lehto countered that defendants were making a “power play” and noted that swearing Bilbray in as a member of Congress may constitute a record for speed. Normally, swearing in occurs 30-45 days after an election – and after certification by local election officials.

The motion could determine whether the premature swearing in of a member is constitutional.

“The specific intent of Congress on June 13 was to deprive this Court of jurisdiction,” Lehto testified. “If they can do that, they can do anything.”

Lehto urged Judge Hofmann to uphold the Constitution as a whole, including provisions which state that the federal government is a government of limited power and that governments receive power from consent of the governed. He further noted that Article 1, section 5 of the Constitution does not prevent recounts and cited state election codes granting the State the power to regulate the time, place and manner of elections. “The State can control the count of votes and the recount of votes,” he added.

Lehto agreed that the core responsibility lies with the House to remove a member of Congress. But he added that the Court has the power to determine if election fraud occurred, and to present any such evidence to Congress. Should Congress fail to act, Congress could suffer political consequences, he observed.

“We have a pattern of evidence to hide the truth in elections,” Lehto argued, adding that it “rises to the level of…aiding and abetting fraud.” He cited evidence of voting machine “sleepovers” which gave “ample opportunity” for just one person to alter the entire election through electronic hacking. He further noted that Haas and Diebold “counted ballots in secrecy.” Lehto added, “We have been prevented and blindfolded from being able to determine if fraud occurred” and suggested that could be “grounds for a new election.”

Defense attorneys stated that they were “disturbed by allegations of fraud” and noted that the voters filing a challenge had failed to pay for a recount.

Lehto countered that plaintiffs filed an affidavit requesting a recount within five days after certification, as required by law, but that the Registrar demanded prohibitively high fees for the recount that were many times higher than fees charged in a neighboring county.

Noting that the ballot had numerous state and local races as well as initiatives, defense attorneys questioned why only the Busby-Bilbray race had been singled out for scrutiny if voting machine accuracy was in question.

Lehto responded that substantial issues specific to the Congressional race warranted the recount. Among those:

* Some polls showed Busby up 7% just before the election

* The outcome was close (Bilbray 49.57% , Busby 45.02% according to the Registrar’s certified result)

* Some absentee ballots were lumped into mega-precincts that listed total ballot numbers that were “thousands of percentages” above the total number of voters

* The Congressional race was the most important on the ballot, in the opinion of the voters who filed suit

Lehto cited the U.S. Supreme Court case that awarded the 2000 presidential election to George W. Bush. In that case, the high court held that officials cannot “make up rules after an election” and halted a recount because Gore had only requested recounts in some districts.

The House of Representatives' effort to seat Bilbray before certification amounted to a “fiat” that violates equal protection guaranteed by the U.S. Constitution, Lehto argued. “California voters are being treated differently than voters in other areas,” he noted, adding, “This is precisely the kind of equal protection argument that Bush v. Gore upheld.”

Defendants have now filed an anti-SLAPP lawsuit against voters Lillian Ritt and Barbara Gail Jacobson, asking the court to order voters to pay legal fees in the case.

Ritt has previously won an election challenge lawsuit that she filed against the Rancho Santa Fe Homeowners Association, which was accused of burning ballots. That suit resulted in changes to the Association’s election procedures, recalled Ritt, who expressed outrage at the SLAPP suit filed in the CA-50 case.

“A SLAPP motion was put in place to stop developers from suing people who went around and talked about them,” she told RAW STORY in an interview at the courthouse Friday. “It was to protect citizens. Now it’s being used against them.”

Lehto viewed the tactic as an effort to intimidate his clients. “They do a power grab, terminate the election, and anyone who does challenge it, they hit them with a SLAPP lawsuit,” he told RAW STORY.

Judy Hess, coordinator of the CA-50 election integrity group, offered an eyewitness account of the courtroom proceedings. “Paul’s argument was so eloquent that I found myself on the verge of mistiness at one point. My words tell you much of the argument— but I can’t do the presentation justice. He has set up the classic tensions, though, between different parts of the Constitution, and also the tensions between Federal and States’ rights….I knew I was watching a little slice of history…”

A decision on the jurisdictional issue is expected on Tuesday, August 29. Updates on the case may be found at NoSleepovers (a site set up by CA-50, which is seeking donations to help cover the costs of filing the challenge) and at BradBlog.

“Checks and balances and judicial review are what this case is all about--not blindfolding our eyes and withholding the truth,” Lehto concluded. “The public interest and integrity of our elections…and of the entire country are implicated here.”