Election lawyer to file legal contest in California congressional race

Miriam Raftery
Published: Monday July 31, 2006

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“Overall, this election was handled in such a way that we have no reason for confidence in the results,” famed election attorney Paul Lehto said of California’s 50th Congressional District special election between Francine Busby and Brian Bilbray.

In an exclusive interview with RAW STORY on Sunday, July 30, Lehto revealed plans to file a lawsuit in San Diego Superior Court on Monday, July 31 against the County of San Diego, Registrar of Voters Mikel Haas, and Brian Bilbray. Bilbray, a Republican, was sworn into office with thousands of ballots still uncounted before the election was officially certified. According to the official machine count (tallied on Diebold optical scanners and touchscreens), Bilbray nosed out Busby by a 78,341 to 71,146 margin. Bilbray replaced Randy “Duke” Cunningham, who resigned after pleading guilty to bribery and is now serving a 10-year prison sentence.

Serious questions were raised by citizens, election reform advocates and blogger Brad Friedman regarding irregularities and apparent security breaches. San Diego’s now notorious “voting machine sleepovers” with pollworkers weeks before the June 6th election were covered by national media, including CNN’s Lou Dobbs. That discovery and other irregularities led Gail Jacobsen, a voter, to request a full hand count of all 150,000 votes, as RAW STORY has previously reported. High costs and alleged stonewalling by the Registrar’s office led the clock to run out on the hand count request, sparking the lawsuit.

“We are filing this lawsuit to seek the truth regarding the election,” said Lehto, who added that the lawsuit alone is not intended to install Busby in Congress, since only Congress has the power to oust a member who has been sworn into office. But he noted, “If we can get something changed here, it could not only improve things in the 50th Congressional District, but in the 434 other Congressional races across the country in November.”

The lawsuit will be filed on behalf of three voters in the 50th Congressional District: Jacobsen (who filed the hand count request), attorney Lillian Ritt, and Brian Weissman, a computer professional. The suit does not claim to represent Democratic candidate Francine Busby.

Paul Lehto, a Washington State attorney who has filed election challenges in other states, will work with local counsel Ken Simpkins of Carlsbad. A fund to pay for the legal challenge has been set up; donations are being accepted at NoSleepovers.

The San Diego case will ask for a full recount performed by hand to detect counting errors and scanning errors, including mistabulations and ballots found uncounted. “That happened in Washington State in the 2004 governor’s race,” Lehto said, noting that a hand count overturned the machine results, giving victory to Democrat Christine Gregoire by around 100 votes. (More recently, hand counts in Pottawattamie, Iowa, overturned seven races – including Republican primaries.)

The San Diego lawsuit will ask the court to set appropriate costs for the recount.

“That would certainly be less than Haas was demanding,” Lehto predicted. Haas asked Jacbsen for $250,000, or a dollar a vote, to conduct a hand count – far higher than the 14 cents a vote reportedly charged by a neighboring county.

In addition, the suit will seek affirmative evidence of election irregularities, such as whether absentee ballots were lumped together to list inexplicably high voter turnout rates. “The Registrar’s own reports say that this was done,” Lehto observed. For example, absentee precinct 99068 lists a seemingly impossible 4,750% turnout, according to the Registrar’s published records.

The suit also seeks to reveal ways in which the public and plaintiffs have been “prevented from determining if election irregularities or fraud have occurred,” Lehto told RAW STORY, citing “blinding or withholding information,” as key issues. “The voting machine sleepovers is also a good example of that,” he added, referring to Haas’ practice of allowing poll workers to take home electronic voting machines with programmable memory cards inside for weeks before the election. “To the degree that we don’t have forensic analysis, any codes placed on machines is undetectable.”

Lehto will also assert constitutional claims under article 2, section 25 of the Califiornia Constitution, which states that a voter has the right to have his or her vote properly counted. “There is a case that says you can bring a claim under Section 16100 of the California Elections Code as well as under the California Constitution,” he observed, adding that he will also raise due process and equal protection claims regarding the cost of the recount being extraordinarily high compared to other locations.

In addition, Lehto plans to raise an equal protection claim – ironically, by citing Bush v. Gore, the case in which the U.S. Supreme Court awarded the 2000 presidential election to George W. Bush. “According to Bush v. Gore, every voter has to be treated equally, but the absentee and touchscreen voters were treated unequally in terms of their rights,” he noted.

Lehto levied harsh criticism against San Diego County’s Registrar of Voters, accusing Haas of “dragging his feet, hiding evidence and pricing the recount out of sight.” He added that Haas and other like-minded election officials “know very well that there are short deadlines for the public to act, and if they stall past the deadline, it’s old news and is moot.”

Asked about potential precedents, he cited a Mississippi Superior Court case in which the court found that if the ability to detect fraud is impaired, “that in itself is reason to order a new election.” In that case, a judge ordered a new election after finding that seals were left off ballot boxes for several days, even though the challenger hadn’t alleged fraud, Lehto said.

San Diego County poll watchers, including Jeeni Criscenzo, a Congressional candidate running in a neighboring district, have stated that they witnessed broken seals on voting machines during San Diego’s June 6th election, as RAW STORY has previously reported.

Lehto expects his case will be placed on a “rocket docket” for speedy trial within 45-60 days. “The key is that there is no basis for confidence,” he said. “Haas cannot prove that Bilbray won the election, properly… There is not enough chain of custody to show that.”

He cites evidence of hack tests as proof that a single voter may hack into an electronic voting machine in less than a minute with no password, changing results for an entire election. Those facts have been published in the Washington Post and on CNN.

Lehto, a business and consumer fraud attorney, is a retired governor of the Washington State Bar Association and was voting “Rising Star” in 2003 and 2004 by Washington State Law and Politics magazine. He appears on radio and television shows and is considered a national expert on election reform issues.

In 2004, he helped monitor the presidential election. He later conducted a highly regarded study on the unusual patterns in the 2004 Snohomish County, Washington election, focusing on one of the closest governor’s races in U.S. history. The study served as a blueprint model for evaluating election fraud. Steven Freeman, Ph.D., author of Was the 2004 Presidential Election Stolen?, has praised Lehto’s effort as one of the best studies shining light on electronic voting and election irregularities.

Lehto became the plaintiff in a ground-breaking lawsuit against Sequoia, a voting machine manufacturer that controls about 30% of the U.S. market. Lehto’s suit sought to void a purchase contract for Sequoia electronic voting machines, focusing on the illegality of secret vote counting in a democracy. After national attention was focused on Snohomish’s election irregularities, the Snohomish County Council voted to abandon touch screen voting machines in favor of mail-in ballots. Although a judge found the lawsuit moot, the suit continues on appeal, seeking to obtain a refund of the county’s money and to provide information to the public on vote-counting in the future.

Lehto is also legal counsel representing citizens in a case alleging major election fraud in Whitley County, Kentucky.

“In that case, the defendants seem to have gotten a little too greedy in cheating on DREs,” he said. “Kentucky law says that if you have more than double the votes of your opponent, the loser has no right to file a challenge… We’re challenging that law as applied to a DRE voting system.”

The attorney will hold a press conference on Monday, July 31 at 10:30 a.m. Pacific Standard Time outside the San Diego Superior Court to publicly announce filing of the lawsuit, RAW STORY has learned.

The San Diego Registrar’s office was not open on the weekend, making it impossible for RAW STORY to obtain comment before going to press prior to the press conference. In previous interviews, however, Haas has defended security procedures used by his office and insisted that he knew of no way to deliver electronic voting machines to polls on time without sending them home with poll worker days or even weeks before election day.

Lehto poked holes in Haas’ argument. “There are almost half a million voters in Snohomish County, and they do it all on election morning with nine trucks,” he observed, noting that San Diego County has approximately 1.5 million registered voters. “Somebody should tell Mr. Haas that a different branch of the government manages to have its trucks visit every single house every day, namely the U.S. Postal Services. If he can’t handle it, he should get a new job.”

He criticized Haas and election officials in other localities for choosing answers that “always sacrifice the integrity of the election.”

Recently, San Diego Democratic Party Chair Jess Durfee and CA-50 election activists asked the County Board of Supervisors to investigate election procedures and the use of electronic voting machines. The Board declined to take action. One supervisor reportedly said that since no fraud was detected, there was no need to take action.

Lehto lambasted the argument, noting that if hacking occurred, a virus could be programmed to erase itself, making it undetectable. “That’s like putting blindfolds on an entire audience, picking their pockets, then saying there’s no evidence that a crime occurred,” he said of the supervisor’s argument.

Asked what voting system he would most trust, Lehto noted that optical scans could in theory be “reasonably accurate if you have the right checks and balances, and you have precinct counts.” But he added, “If one of those checks or balances is missing, all bets are off.”

Lehto would prefer to see optical scans and touchscreens ditched in favor of a far lower-tech solution. “Paper ballots, hand-counted – not by opti-scans – are overall the best system,” the election protection attorney concluded.