Challenge to Unconstitutional and Premature Swearing-In of Republican Brian Bilbray Continues...
By Emily Levy on 10/6/2006, 10:30am PT  

Francine Busby and Brian Bilbray will meet again in November's election for the 50th Congressional District in San Diego County, California. Because Bilbray was declared the winner of the Special Election on June 6, he will be running as an incumbent this time. However, there has not yet been a trustworthy count of the votes that reportedly brought him into Congress after the initial disputed election. The court case challenging his victory has yet to be resolved.

San Diego voters Barbara Gail Jacobsen and Lillian Ritt filed an election contest challenging Bilbray's reported victory based on a number of factors including the now-infamous Diebold electronic voting machine sleepovers. Judge Yuri Hofmann dismissed that suit after intervention by Republican Congressional leaders claiming that once Bilbray was sworn in, California courts had no jurisdiction to rule on California's election, even though swearing in took place before the election was certified in California. That dismissal is now being appealed by California attorney Ken Simpkins and election attorney Paul Lehto on behalf of Jacobsen and Ritt.

According to Simpkins, this "was a unique situation because they actually swore Bilbray in before we got certification of this election, before all the votes were counted. Congress is basically saying we're going to swear in whoever we want to swear in, it doesn't matter if the election has been completed or not. That's another treading on the state's constitutional right to determine the time, place and manner of elections," he said.

Simpkins says, "The only way this could be more a violation of states' rights is if they actually swore Bilbray in before the election. Where do you draw the line? Where is it that the Congress gets to determine the qualification of its members? Before the election? A minute after the election? Or after the election’s been certified by the state?"

A ruling on the appeal is expected before the election. While the defense will likely argue that the case is moot because the partial term being served by Bilbray ends in January, Simpkins explained that the court can still render an opinion because it would be instructive for future cases where similar facts are subject to being repeated.

This case, along with a related one in Nevada, previously covered by The BRAD BLOG, may be a trial run for a Republican strategy to swear in Republicans regardless of election outcomes this November. Just as the Busby-Bilbray race in San Diego County provided the best place to challenge the practice of sending hackable electronic voting machines home with pollworkers, the same district may be providing the best opportunity to pre-empt this threatened further usurpation of our elections.

Appeal costs are mounting and defendants must raise funds to be able to pursue this nationally significant case. The BRAD BLOG encourages readers to contribute to the continuing fight for accountability via Velvet Revolution.us. The DNC has, so far, failed to contribute resources for this important legal battle.

[DISCLOSURE: Brad Friedman, the publisher of The BRAD BLOG is one of the co-founders of VR.]

Michael Collins at SCOOP has more on the case and the appeal --- looking specifically at Dennis Hastert's strategy of swearing in Bilbray just days after the election. Their report also includes downloadable versions of the complete the legal briefs just filed.