Is the right-wing trying out a new tool; the US Constitution?
Could these court rulings in San Diego and now Nevada 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?
By John Gideon on 9/2/2006, 10:29am PT  

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 in an election contest of the Busby/Bilbray CA50 U.S. House Special Election 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.

But then they played the Busby/Bilbray 'Constitutional Jurisdiction' card. Just as in Busby/Bilbray...

The judge threw out the case, not on a finding that the practices were legal and acceptable, 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. Just as in the Busby/Bilbray matter.

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 faxed 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 at least 16 days away. That directly led to Bilbray being sworn in --- just 7 days after the election --- 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 in San Diego and now Nevada 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".