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…
“Everybody would agree that every vote should be counted and yet the election was terminated with well over 10,000 votes still uncounted. Everybody would agree that you can’t end a basketball game with ten minutes left on the clock and yet that’s what the Speaker of the House did when they swore in Bilbray only seven days after the election and then claimed that what that meant was that everyone else except the House of Representatives was thereby rendered powerless to look into the election. The legal theories of the defendants attempt to turn the Constitution into a weapon to be used to terminate elections. The Constitution is supposed to protect We the People not be used against us.”
Evidence increased that weaponizing the constitution is a new strategy to conquer the enemy called fair elections when a second judge dismissed a case in Nevada the same week, also citing Article I, Section 5 of the Constitution, which states in part, “Each House shall be the judge of the elections, returns and qualifications of its own members….” The Washoe County, Nevada case involved a challenge to the Republican primary election, and stretched the weak defense argument even farther by applying it to a candidate who–even if he did win the primary election fairly, which remains in doubt–can by no definition be considered a member of the House of Representatives.
With 435 House races taking place in November, appeal of the San Diego ruling may be the only opportunity to stop the Republican-controlled House–and perhaps the Senate as well–from wielding Article I Section 5 over the heads of the American people and swearing in Republicans regardless of election results.
Bilbray and Democratic candidate Francine Busby competed in the special election to serve the remainder of the term of Randy “Duke” Cunningham, who is now serving his term in prison rather than Congress. Both candidates are running in November for a full Congressional term.
Questions about the results of the Busby/Bilbray special election were first raised here on BradBlog, where it was revealed that the Diebold electronic election equipment–proven to be easily hackable–was sent home with volunteer pollworkers for days and weeks before the election, violating both state and federal regulations and rendering the voting equipment uncertified for use in an election. Plaintiffs Barbara Gail Jacobsen and Lillian Ritt, both CA-50 voters, filed the election contest when efforts for a hand count of the ballots were thwarted by Registrar Mikel Haas’s refusal to provide the necessary public information.
Contributions are needed to fund this appeal. Yours can be made through Velvet Revolution.
The BRAD BLOG continues to be the leading source of news on this story and will bring you further details of the appeal as they develop. RawStory and The Peter B. Collins Show have provided excellent ongoing coverage as well. NoSleepovers.org is the site of the CA-50 Action Group, which formed to challenge the June 6 election.
UPDATE: Brad will be on Peter B. Collins’ show today at 5:20pm PT (8:20pm ET) to discuss this case, and several other recent BRAD BLOG stories. Listen up online here…
God save the Queen!
They just keep coming up with their little tricks to weasel the American people.
They delay actions until after a vote is certified,
They rush Bilbray to Washington and swear him in before they even finished counting the votes,
the bloody ignorant Republican majority of state or nation turns a deaf ear to legitimate complaints.
So in goverment, as long as you run the clock out, YOU CAN GET AWAY WITH IT????
As I said before, rig the elections so the least likely candidate wins. (Gary Coleman in a massive comeback or something)
That’ll wake up even the dumber of our fellow citizens.
Then again, maybe they’ll think it’s a sign from Jeeeeeeeeeeeeeeeeeeeeeesus.
Thank you for keeping us up to date.
NeilDeal – (C) # 2
Rig/hack all electronic voting machines to declare
Walt Disney the winner of all Senatorial and Congressional races in 2006,.. coast to coast.
Same thing in 2008,.. Hack the black box voting machines,.. Walt Disney for President,.. Donald Duck for his running mate. It will take something as outrageous of this nature to finally trash those computer vote counting junk-boxes once and for all.
Out hack the fascist computer hackers and hijack their sure to win election they will then become anti faith based/black box computer vote counting real quick.
The arrogant ineptitude of this Administration is so complete that a voter revolt in November is inevitable. If the Diebold Cheat-o-Matics say otherwise, it is time to change the manner of our voting to be this: “Controlled by the People, Counted by the People, and Enforced by the People”!
I think the first two are inherent in the Constitution. The “enforcement”, if needed, is something we will just have to work out. We have a couple of months to plan for that, but we should be ready for it. For thieves will steal when they can. And, we know now that they are thieves.
Turk
Walt Disney ha ha
No kidding, this might finally get the attention of our special friends on the ever right leaning side.
Instead of thinking that the crap-boxes work OK, they might look up from their TV dinner and say, “Golly, this is bad!”
If the appeal brings back the finding that Judge Yuri was right, are we still going to pretend to vote.
A thought on the constitution. I am studying in my first year of law school and just read in my Constitutional Law casebook about a guy named John Hart Ely who wrote “Democracy and Distrust: A Theory of Judicial Review” (1980). His main thesis is that the central purpose of judicial review should be to scrutinize legislation that “1) restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, or 2) that is based on prejudice against discrete and insular minorities, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities. ” His model is called “participation-oriented, representation-reinforcing.”
Democratic “malfunction occurs when the process is undeserving of trust” when “1) the ins are choking off the channels of political changes to ensure that they willl stay in and the outs will stay out, or 2) though no one is actually denied a voice or a vote, representatives beholden to an effective majority are systematically disadvantaging some minority out of simple hostility or a prejudiced refusal to recognize commonalities of interest, and thereby denying that minority the protection afforded to other groups by a representative system.”
Representative-reinforcing judicial review protects interests of three sorts: 1) Freedom of speech and freedom of press, 2) voting rights because the franchise is “central to a right of participation in the democratic process” and 3) it protects minorities against defects of democratic process resulting from prejudice.
Seems like we have a problem with all three and much more at this point in our “Democratic” history and it seems that the Courts in CA and NV are specifically rejecting this model of judicial review in favor of an insular model that only protects the interests of the Legislative and executive branches of government by deferring to their exclusive authority to regulate elections without regard to protecting the democratic processes without which these bodies would have no legitimacy in the eyes of the People (to whom ultimate sovereignty is given in the constitution). Furthermore legal legitimacy is not the fundamental core of our system, because legality itself is only a function of the will of the people as balanced between the fundamental representation of will that is the constitution and between statutes and decisions of our elected reps. But the problem with these current court decisions are more fundamental and go beyond the above stated model. The decisions in these two recent cases reflect a sacrifice of the entire constitution and will of the people both there reflected and reflected in the state and federal statutes that specifically forbade certain acts which became the cause of action for these lawsuits. By looking at one small part of the constitution and ignoring the rest including the obvious intent that elections be valid, and by ignoring the state and federal laws that were directly implicated, these judges have really abdicated their oaths of office to a point that might warrant impeachment.
Would somebody who knows the process please confirm for me that this goes up through the 9th to the SCOTUS?
My assumption is that the full 9th will reverse, SCOTUS will issue a stay of whatever immediate instructions the 9th provides (unless it just remands it back to Hofman with instructions to hear the case) and then will uphold Hofman, thus establish the “Enabling Decision” that will allow the Republicans to become a dictatorial party.
Am I wrong? Will a SCOTUS that is even less concerned about individual rights than the one that decided Bush v. Gore really uphold the rights of people to decide elections? You think?
Anybody have an estimate of how many people are prepared to begin an active revolution in this country when it becomes clear that our government no longer acknowledges the oaths that they all took? 1000? 10,000? 100,000? 1,000,000? If it is any but the last number, then I think the camps have enough space for us. (What is the total occupancy of those camps they are building anyway? Are they done yet? It’s all about timing, after all!)
November 8, 2006: If not now, when. If not here, where!
Charlie L #9
I wonder if Dredd would know the answer to that one? This is really shaping up to be one hell of a case, isn’t it?
If a ruling against us on this one doesn’t tweak Americans into rage, I am going to be real surprised. This ABC Crapudrama outrage has been huge. I’m getting encouraged!
dazzlemetruthful #8
Yeah, I’m not the biggest history expert around, but to compare this with any other time in American history seems a stretch. Some people are comparing it to Nixon! Give me a break!
Charlie & Larry 9, 10 & 11
The thing with election shenanegans is that there is a history in this country, though not on this scale by any means. Even in 1800 when power shifted from the Federalists to the Jeffersonians, because of defects in the electoral process Jefferson was in a position to count the Electoral College votes and counted four questionable votes in his favor from the south. But in more recent history the precedent that was set in Bush v. Gore (though there was a caveat by th ct that it shouldn’t be used as precedent) is that the Supreme ct overruled just such a case that would have forced Florida counties to do a recount. They stopped the recount and verified the electors. So even if it goes to the 9th circuit and they invalidate the count it could be short circuited by Scotus. I don’t believe that this will happen since it is not only in CA but in almost every state that there will be election issues and the Scotus can’t go in and fix every election in the country, especially since there will be different specific facts that will need to be evaluated in each case. The scary part is whether that will be necessary or not since it seems a large majority of those directly affected by these electoral coups are not fully aware of the fradulent events that surround these elections and neither are the millions needed to mobilize and pressure cts and Congress to play fair. This means that there will have to be AT LEAST a left blogosphere revolution in coverage of these issues, and hopefully some Olbermans and Dobbs and Stewarts who might cover this issue more intensly as shit hits the fan.
When the lawsuits begin they must be publicized and ct’s must be made to understand the gravity of the situation and their oaths to uphold the Whole Constitution and Laws of their state and nation.
dazzlemetruthful (#12) The key difference I see in relation to Bush v. Gore is that in this case, the SCOTUS need do NOTHING MORE than say that it is NOT going to get involved, but that CONGRESS is the only body allowed to decide. They do not have to “go in and fix every election in the country” but rather just allow every broken election to stand. In so doing, they skirt the issue but give the power to the Dictatorial Republicans to maintain power by cheating and then declaring that they didn’t cheat.
There is no question that if Hofman’s ruling is allowed to stand, there is absolutely no reason why every Rethuglican candidate couldn’t be flown to Washington on November 7 and sworn into office on November 8, REGARDLESS OF THE OUTCOME OF THE VOTES.
Oh, there COULD (probably wouldn’t but COULD) be some outcry from those people who were informed by the press (if the press chose to inform them) but how would we ever know, since the outcry wouldn’t be reported by the press. And, outcry notwithstanding, IT WOULD BE TOTALLY LEGAL, and the only avenue of protest would be to appeal to the House of Representatives WHO WOULD HAVE COMMITTED THE CRIME.
The checks are not in balance.
While I realize that the “media” (as it was) in 1776 and 1789 was not what it is today, I have to believe that at least some of the founders did imagine that “free speech” and a “free press” (printing press?) would act as a fourth check/balance in our delicate little system of government. Such a pity that it is now a TOOL of the Corporate State and rather than checking their almost total power, it simply re-inforces it.
I am starting to wonder if anything short of total revolution is going to save us now (yes, that’s right Erma, I’m sliding over towards your way of thinking). I guess only November 8, 2006 will tell.
This November 7, 2006, we must (hold our noses and) vote DEMOCRATIC in numbers so damn large that they will be very hard to ignore. The Rethuglicans are running an ad that says (in part): “Vote like your life depends on it.” And you know, that’s the ONE (and only) true thing they say in the whole ad. It very well may be true. And, of course, that will just be the beginning. THEN, we have to hold those Democrats’ feet to the fire and make sure they DO what we elected them to do, which is to fix the system and hold criminals accountable for their actions, REGARDLESS OF WHAT THE CORPORATE MEDIA TRIES TO SAY ABOUT THEIR MOTIVES!!! If we can elect a Democratic Congress in spite of the anti-Democratic, pro-Republican MEDIA, then we can HOLD ONE as well.
November 7, 2006 — the Tipping Point in American Democratic History. If not now, when?
Take care and Good Luck!
Charlie L
Portland, OR
CLL2001@gmail.com
If you don’t hear from me for a while, don’t worry, I’m not at Gitmo (yet), just taking care of business and getting ready for November 9, 2006. I’ll be spreading the world out in “meatspace” where some people we need still hang out.