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The Constitution As A Weapon Against Democracy

Is The Constitution Going To Be Used Against Democrats In November?


by John Gideon
September 2, 2006

Let me preface this with a statement. I am not an attorney. I'm just a retired "knuckle dragger" (marine machinist). While I'm not an academic I do have the ability to read something and know what it says especially when it is written in clear English. I've also got a bit more common sense than most academics because I've had to exercise it throughout my life.

Any reader of The BRAD BLOG is familiar with the court decision from San Diego County. Essentially the judge ruled that he did not have jurisdiction because Bilbray was already sworn in as a member of Congress and the US Constitution gives the Legislative Branch jurisdiction over elections of their members.

Today's Nevada Appeal has an article regarding a court challenge that stemmed from problems in the GOP primary election for Congress. That race between Dean Heller, present Secretary of State, and Sharron Angle, was closely contested and Ms. Angle filed the challenge based on what she thought to be possibly illegal practices in Washoe County.

The judge threw out the case, not on a finding that the practices were not illegal but on a constitutional basis. The judge found that he had no jurisdiction, in part, according to Article 1, Section 5 of the US Constitution.

The pertinent part of Article 1, Section 5 says: "Each House shall be the judge of the elections, returns and qualifications of its own members,........". Note the phrase "of its own members".

We learned from Busby-Bilbray that the California Secretary of State's staff almost fell over themselves getting a memo to Denny Hastert to tell him that Bilbray won the election even though the certification of that election, and the final and legal naming of the winner of the election, was days away. That directly led to Bilbray being sworn in and becoming a member or the House of Representatives.

However, in Nevada we have two citizens running in the GOP Congressional primary. Neither of them is a member of congress now. So how, and why, did Article 1, Section 5 of the US Constitution come into play? How can anyone read the Constitution and decide that the people's votes don't matter, the Legislative Branch will make the decision for us?

Could these court rulings simply be to set precedents? Could it be the move of the GOP using activist judges who are clearly legislating from the bench in order to set a precedent to be used in November? Is this all the portent of things to come in November where election challenges for the House of Representatives will go to the courts and be decided based on precedent rulings from California and Nevada and someone's incorrect reading of what is clear English?

Remember that new members of congress are not sworn in until January. That leaves the GOP with control until that time. They may be able to use Article 5 Section 1 and decide close elections in their own favor without any interference from the courts. And those Republican Congressmen and women who are in danger of losing their elections may be saved by activist judges and their interpretation of the Constitution just because they are " members ".

UPDATE: A bit of research has given us the following information:

The article on Nevada said:

"Citing Article 1, Section 5 of the U.S. Constitution, the 30-year-old Laxalt v. Cannon opinion from the Nevada Supreme Court and NRS 293.407, Maddox said, "This court does not have jurisdiction to hear this case." "

HOWEVER:
I looked up Laxalt V. Cannon. Here is what the Supreme Court said:

"For the reasons expressed, we conclude that Art. I, 5, of the Constitution, does not prohibit Indiana from conducting a recount of the 1970 election ballots for United States Senator. Accordingly, the judgment of the District Court is reversed."

So, Carson District Judge Bill Maddox cited a Supreme Court ruling that OPPOSED his decision, and used it to justify his ruling.

In the Nevada Supreme Court's ruling, here is the discussion of the Nevada District Court's ruling (in Laxalt V. Cannon):

"First, the court found that in making judgments as to which ballots to [405 U.S. 15, 24] count, the recount commission would be judging the qualifications of a member of the Senate. It held this would be a usurpation of a power that only the Senate could exercise. Second, it found that the Indiana ballots and other election paraphernalia would be essential evidence that the Senate might need to consider in judging Hartke's qualifications. The court feared that the recount might endanger the integrity of those materials and increase the hazard of their accidental destruction. Thus, the court held that, even if the commission would not be usurping the Senate's exclusive power, it would be hindering the Senate's exercise of that power."

Here is the response of the Nevada Supreme Court:

"We cannot agree with the District Court on either ground. 20 Unless Congress acts, Art. I, 4, empowers the States to regulate the conduct of senatorial elections."

A hat tip to Ellen Theisen for the extra research.

*************

John Gideon
Executive Director www.votersunite.org and
Information Manager www.votetrustusa.org

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