Democracy Denied: Meet the New Boss

“If they can do that, they can do anything. Why even have an election? They could just swear in whoever they want because the election need not be final.”
- Paul Lehto, Attorney for Plaintiffs Aug. 25, 2006

San Diego Superior Court Judge Yuri Hofmann rendered his decision in the election challenge in California’s 50th Congressional District. He dismissed the request for a recount and for discovery of the facts of the Busby-Bilbray election stating specifically that "Once the House asserts exclusive jurisdiction and selects a candidate, the court no longer has jurisdiction" (emphasis added). The judge argued that the June 13 swearing in alone was sufficient to establish Bilbray’s “election.” The event had the power to take away any and all citizen rights and immediately rescind authority over their own elections.

Requests for a recount resulting from major problems with the election were deemed insufficient and the rights of voters to due process were cast aside in deference to Speaker Hastert or any future Speaker. The induction of Republican Bilbray was just seven days after the election and a full 17 days before the election was officially certified by the San Diego Registrar.

The plaintiffs lost their suit for an election contest and recount in this one congressional district. However, by bringing suit, they achieved an outcome that clearly proves the arguments expressed across the political spectrum from conservative legal scholar Bruce Fein to former Vice President Al Gore. In unambiguous terms, they and others decry the rapid descent of the United States into a state of tyranny which only affirms our long nightmare for democracy. Politicians can now manipulate, alter, and nullify elections if those politicians are the Speaker of the House or capable of influencing the Speaker. Arbitrary, centralized rule starts with the control of vote counting. It is now clear who controls vote counting and it is not the citizens of the United States of America. The People’s House is now the Speaker’s House.

Speaker Dennis Hastert swore in Republican Brian Bilbray even though there were requests for a recount and numerous public protests about the legitimacy of the outcome. According to the San Diego Registrar of Voters, as of June 15th, there were in fact still 2,500 votes to be counted. Evidence reportedly captured from the Registrar’s internet site indicates that on June 13, induction day, there were 12,500 votes uncounted. The San Diego Registrar did not officially certify this election until June 30th. Even when the election was certified, nearly 50% of the votes had not been assigned to the appropriate precincts.

The information on uncounted and misallocated ballots was followed by the discovery that the California Secretary of State’s office, headed by Republican Bruce McPherson, allegedly provided confirmation that Bilbray had in fact been “elected.”

Chamber Action (Digest) U.S. House of Representatives: Page H3798
Oath of Office--Fiftieth Congressional District of California: Representative-elect Brian P. Bilbray presented himself in the well of the House and was administered the Oath of Office by the Speaker. Earlier the Clerk of the House transmitted a facsimile copy of the unofficial returns of the Special Election held on June 6, 2006 from Ms. Susan Lapsley, Assistant Secretary of State for Elections, California Secretary of State Office, indicating that the Honorable Brian P. Bilbray was elected Representative in Congress for the Fiftieth Congressional District of California. (June 13, 2006)

If this official did in fact provide such confirmation, a key question must be answered. On what basis was an official stamp of approval given to the election by McPherson’s office since results were not made official until June 30? Does the California Secretary of State now have the ultimate power to deem elections final, regardless of the status of those elections? To be more precise, does the Secretary of State now have the power to override citizen protests, challenges and strongly expressed concerns for purely partisan benefit? McPherson is a Republican appointed to this office by the current Governor of California.

The special election generated immediate controversy when it was discovered that election officials had taken home voting machines for overnight stays. The supposed rationale or pretense for these maneuverings was to expedite the convenient delivery of the machines to precincts on election day.

Citizens were furious for a number of reasons. To begin with, these machines have documented security problems which render them vulnerable to hacking and thereby enable the possibility that “malicious code” can be introduced to alter vote counting. In addition, the voting machines were not supervised in the homes nor were they clearly signed in and out. Remarkably, some voting machines even failed to make it from poll worker homes to the precincts on election day.

This obvious breach of security rendered the election void, it was argued. In addition, plaintiffs pointed out that the vote counting was done in secret since the computerized vote tabulation is not open to serious inspection by citizens or even election officials. The innermost workings are controlled by computer code that by agreement cannot be reviewed by election officials or citizens. Thus, the ability to view vote counting was in no way available. This is a right preferred by 92% of voters according to a new Zogby Survey.

Yesterday, attorney Lehto took an optimistic stance when he commented on the role of the public in taking back control of their elections.

The shutdown of any possibility of a court based investigation of the CA50 race could not be in more stark contrast to the 92% support for election transparency in the Zogby poll. The contrast between the two sides now could not be clearer. The question of the moment is whether and to what extent the 92% can discover its own supermajority status, or to what extent they continue to be deceived, deluded and distracted by illusions of their own powerlessness.

By dismissing this case, the judge leaves a legacy which sets a precedent for the surrender of responsibility for free, fair, and clean elections at the state and local levels by deferring to the arbitrary decisions of any Speaker of the House of Representatives. Using the judge’s logic, even cases of verified miscounts or election fraud would have no weight once the Speaker invokes his or her customary power of induction.

Tuesday, August 29, 2006 marks the day when every county in Californian lost the certain ability to monitor and manage elections. That function has been out-sourced to Washington, DC. It provides an unfortunate example for the rest of the country regarding the true conduct of elections and election law.

N.B. Court Decision and Attorney Paul Lehto comments on the decision ,
Collection of Filings and Documents on CA 50th District Challenge

Copyright: This material may be reproduce in part or whole with attribution to the author and a link to “Scoop” Independent News. Special thanks to Stella Black for her editorial assistance.

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