Guest blogged by Emily Levy

The BRAD BLOG has learned that the plaintiffs in the Busby/Bilbray CA-50 election contest will be appealing the recent dismissal of the case by a San Diego judge. The appeal will be filed in California's 4th District court. Briefs are now being prepared and funds being collected for what may be a rather expensive appeal. Notice of appeal may be filed as soon as today.

Donations to the appeal can be made via Velvet Revolution.

The appeal is a rejection of Judge Yuri Hofmann’s August 29 ruling which echoed GOP claims that the U.S. House of Representatives, not the state courts or voters, have the power to determine the outcome of elections of members of Congress. In California’s 50th Congressional district in San Diego County, Republican candidate Brian Bilbray was announced to be the winner of the June 6 special election, flown to Washington and sworn in before all the votes were counted or the election certified. That, after reports were initially broken, and well circulated by The BRAD BLOG revealing that the Diebold voting machines used in the elelection were sent home with poll workers for overnight "sleepovers" in the days and weeks preceding the "bellwether" U.S. House special election.

Those sleepovers, in which election works had unsupervised access to the highly hackable, programmed, election-ready voting systems, were in contravention of both state and federal laws and led to a filing of an election contest in early July.

Says attorney Paul Lehto, who argued the plaintiffs' case in Hofmann’s court...

Guest blogged by Emily Levy

Today on RawStory.com, Miriam Raftery interviews Paul Lehto: Court rules against voter-supervised elections, attorney tells Raw

Lehto ties together recent court cases in California and Nevada, and makes some hypotheses about the future.

First: Judge Yuri Hofmann in San Diego dismissed the CA-50 (Busby/Bilbray race) election challenge a week ago, after receiving a letter [PDF] from Paul Vinovich, counsel to the Committee on House Administration, claiming that only Congress had jurisdiction over California’s election. The letter cited Article I, Section 5 of the Constitution, “Each House shall be the judge of the elections, returns and qualifications of its own members….” Never mind that when Brian Bilbray became a “member,” the election wasn’t yet certified and thousands of votes remained uncounted.

Then: Three days after dismissal of the San Diego case, a judge in Nevada’s District 2 dismissed a challenge to the Republican primary there on the same constitutional grounds. John Gideon’s excellent piece, Opinion: Is The Constitution Going To Be Used Against Democrats In November?, which appeared on The BRAD BLOG over the weekend, ties the two cases together. If you haven’t read it, please do.

There’s more: As previously reported on these pages, Vinovich's letter came after Congress received by fax the preliminary results of the CA-50 race. That fax was sent by Susan Lapsley, Assistant California Secretary of State for Elections. She hasn’t worked for CA SoS Bruce McPherson for very long. What was her previous job? Assistant Secretary of State in Nevada, where her boss was Dean Heller. SoS Heller is running for Congress, and is the candidate who claims to have won the contested race in Nevada. More on Lapsley here.

Connect the Dots: Is Texas Next?

A judge in the San Diego challenge to the Francine Busby/Brian Bilbray U.S. House Special Election in California's 50th Congressional District has found in favor of the defendants' motion to dismiss the case based on jurisdictional grounds, The BRAD BLOG has learned.

We have covered the defendants' argument, that the swearing in of Bilbray --- just seven days after the election and a full 16 days prior to certification by San Diego County --- effectively transferred power to decide any election challenges from the California courts to the U.S. House of Representatives. Those arguments are discussed in detail in several previous BRAD BLOG articles (here, here, here and here.)

The defendants' attempts to force plaintiffs to cover the cost of attorneys fees (a so-called "SLAPP back" motion) was denied by Judge Yuri Hofmann based on the same jurisdictional arguments used to dismiss the case, according to the plaintiffs' attorney, Paul Lehto. Since the California court has no jurisdiction to adjudicate an election contest for a California U.S. House election, according to the court's opinion, it also has no jurisdiction to find against plaintiffs in the "SLAPP back" motion, explained Lehto.

VelvetRevolution.us is now collecting donations to help defray the cost of an appeal of this ruling.

Extended EXCLUSIVE comments on the judge's ruling today, from attorney Paul Lehto are below, followed by Hofmann's ruling in its entirety...

Guest blogged by Emily Levy

You know by now that Brian Bilbray was sworn in as Congressional Representative before the June 6 election in San Diego County, CA was certified. You might even remember reading on The BRAD BLOG that the official swearing in was preceded by a public "mock" swearing in. You learned last week that this premature act is now being used by the defendants in the Busby/Bilbray election contest as an attempt to nullify the election in California's 50th district. But today (drum roll please) Michael Collins of Scoop Independent News reveals that it was Assistant California SoS Susan Lapsley (seen in photo) who provided the election results to the House.

Collins points us to the Congressional Digest...

Guest bloged by Emily Levy

Judge Yuri Hofmann announced in his San Diego courtroom today that he will take the constitutional and jurisdictional matters of the CA-50 election challenge case under advisement and issue a ruling next Tuesday, August 29.

The first item up for consideration today in the election contest filed by Attorneys Paul Lehto and Ken Simpkins on behalf of two San Diego voters (and truly on behalf of all of us) was a defense motion for dismissal. Defense claimed that the San Diego court has no jurisdiction in this matter because the Constitution says, “Each House shall be the judge of the elections, returns and qualifications of its own members…” (Article I, Section 5). In other words, The House of Representatives gets to pick its members. (Who really needs elections, anyway?)

Lehto, in response, argued--as outlined here--that if the court has no jurisdiction, then Registrar of Voters Mikel Haas also had no jurisdiction to certify the election, given that certification happened after Bilbray was sworn in. (Yes, you heard that right.)

The defendants also argued that the court has no jurisdiction because plaintiffs had abandoned their recount efforts. According to Lehto, the request for a recount was filed properly within five days of certification of the election. Lehto says, "Jurisdiction was created by filing. That's all the statute says. There is no abandonment rule."

The judge is expected to rule on both the constitutional and jurisdictional issues on Tuesday.

From the courthouse by cell phone plaintiff Barbara Gail Jacobsen reported, "Paul Lehto and Ken Simpkins represented us very well today in court. Lehto said it's invading the sovereignty of the State if someone swoops in and swears the person in and then says there’s nothing you can do. I thought he made some very good arguments about upholding checks and balances in our system and standing up for the right of the people to make sure that elections are accountable. We the People of this country decide on who is going to represent us, and it’s through making sure that our elections are sound that we can know for sure that we have elected people that we want to transfer power to. In this particular case what Paul Lehto was trying to say is that the people's right to know if the election was properly carried out is being blindfolded and taken away by the other side."

We can only hope that before Tuesday Judge Hofmann will have the opportunity to read the rest of the Constitution. It could be enlightening.

Donations are still needed for the lawsuit and other efforts in California’s 50th District to fight the illegal June 6 election. For more information, go to nosleepovers.org.

UPDATE: We have another report of the day's proceedings, this one from Judy Hess of CA 50 Action Committee:

Guest Blogged by Emily Levy

Claims that electronic voting equipment sleepovers are just peachy sound mighty defensive in an issue paper titled "Voting Equipment 'Sleepover' Practice" issued July 27, 2006 by the California Association of Clerks and Election Officials (CACEO).

It may come as no shock that the president of the CACEO is none other than Conny McCormack, Registrar of Voters from Los Angeles County, pictured here on a Diebold brochure. San Diego RoV Mikel Haas is on the Board of Directors. Despite the CACEO not being a government entity, it has an important job to do. Why, its motto is even "Officium populi, office of the people." But wait! In their bylaws we find, under "Objects and Purposes":

Guest blogged by Emily Levy of the California Election Protection Network and the CA-50 Action Committee

As I said in my response to the ridiculous article in the North County Times over the weekend, “The most important thing is not that voters have full confidence, but that there be a basis for confidence. Public confidence can be manufactured by government disinformation such as has become Mikel Haas's hobby of late and media disinformation such as Schultz's article. But a disinformed yet confident public does not a democracy make. We deserve and demand transparent, verifiable elections.”

And as to “unfounded insinuations,” read any of the BRAD BLOG entries on the CA-50 debacle and you’ll see plenty of documentation.

Guest blogged by Emily Levy of the California Election Protection Network and the CA-50 Action Committee

Attorney Paul Lehto, who specializes in cases involving election law, business fraud and consumer law, has been retained for work on the issues surrounding the illegal election conditions in San Diego County.

Lehto came to the attention of BRAD BLOG readers when he filed a lawsuit in Washington state against Sequoia Voting Systems Inc.

He has also appeared as a guest on The BRAD SHOW of April 23, 2005. To listen to that interview, click here.

More details will be posted when they become available.

(DISCLOSURE: Paul Lehto is also a legal advisor for VelvetRevolution.us, a Voting Rights and Election Reform organization co-founded by BRAD BLOG's Brad Friedman.)

Guest blogged by Emily Levy of the California Election Protection Network and the CA-50 Action Committee

While San Diego's North County Times could have been reporting on Friday's protest outside the Registrar of Voters' office, instead the NCTimes donated its column-inches to the noble cause of further misinforming the public about the June 6 election debacle and the people's fight for democracy.

In Recount fee goes unpaid: San Diego Registrar says no recount happening in 50th District race, staff writer Erin Schultz appears satisfied to report Registrar of Voters Mikel Haas's lies as fact:

The poor woman went to all the trouble of filing for a hand count under the recount provision and then didn't bother to pay the fee, eh? Not so fast. It just might be relevant to mention that it was an improperly required fee. The only fees the Registrar of Voters' office is allowed to charge are the actual costs of a recount. The exorbitant $6,000 demanded by the RoV's office as a deposit for the first day’s counting should have been reduced significantly when the voter requesting the recount advised the RoV that no counting panel would be needed on the first day, as she was still awaiting documents needed in order to proceed with the recount. Haas has failed to provide these documents despite Barbara Gail Jacobsen’s being legally entitled to have them and despite—or perhaps because of—their significance to the recount.

And why weren't the documents provided? What is Haas trying to hide?