Congressional Election Nullified – Nobody Noticed

Friday, 25 August 2006, 10:45 pm
Article: Michael Collins

It appears the US media overlooked one of the great political stories of the year. In what is becoming something of a pattern, here’s a brief chronology:

On June 6, 2006 Republican Brian Bilbray allegedly slightly outpolled Democrat Francine Busby in the special election for California’s 50th Congressional District, despite Busby’s lead in the polls going into the election. There were immediate cries of foul following the election due to major irregularities, including electronic voting machines sent out to the homes and cars of volunteers for up to 12 days prior to the election, and irregular election results like huge mega-precincts of absentee ballots where turnout was thousands of percent more than registered voters.

On June 13, 2006, Bilbray flew to Washington, DC and was sworn in as a member of the United States House of Representatives by House Speaker Dennis Hastert.

On or about June 30, 2006, 17 days after Bilbray was sworn in as a member of the House, Mikel Haas, Registrar of San Diego County, officially completed the audit of election results required for certification, and officially certified the election of Bilbray over Busby based on 163,931 votes cast, of which 2,053 votes were said to be cast on Diebold TSX touchscreens, and the remainder scanned via Diebold Accuvote OS computers.

On July 31, 2006, the Contestants filed an election contest, seeking a hand recount and to invalidate the election on several grounds, not only including the affirmative evidence of irregular results, but also including the stonewalling of citizen information requests and the pricing of recounts at an estimated $150,000 that made it difficult or impossible for any citizen to tell who won the election.

On August 22, 2006 the defendants moved to dismiss, arguing that the swearing in of Bilbray deprives everyone else of jurisdiction including specifically the San Diego Superior Court because Art. I, sec. 5 of the US Constitution has been held to mean that the House and Senate are the judges of the Qualifications of their Members, one of those qualifications is supposed to be “election.”

There is some thing very wrong with this sequence. Elections are not complete, anywhere, until they are officially certified by local authorities. How can a citizen get sworn in as a member of the House of Representatives before his or her election is certified? Only Speaker Dennis Hastert, his team, and Bilbray have the answer.

In a filling in San Diego Municipal Court yesterday, attorney Paul Lehto outlined the core in stark terms:

Defendants are in effect arguing for the remarkable proposition that unilateral self-serving actions by a majority party in the House of Representatives to shuttle in a member of the same party can be effective, even if those actions do violence to and amount to circumvention of other sections of the US Constitution as well as the California constitution. Document available here.

Lehto is one of the two attorneys representing citizens who are challenging the election. Shortly after the last vote was cast, citizens discovered disturbing facts. Prior to Election Day, several poll workers had taken home voting machines for periods of a day to a week at a time without supervision or even consistent tracking procedures. Other irregularities like vote switching on touch screen machines emerged. Brad Friedman of www.BradBlog.com conducted an extensive investigation that uncovered a series of sloppy procedures by County Registrar Haas.

The election became an immediate cause for citizens, supporters of the losing candidate, and national voting rights activists. The results were also challenged by Howard Dean, Chairman of the Democratic National Committee.

A suit was filed by two local citizens challenging the election. The initial filing relied on the right of citizens to know that their votes are and counted correctly in order to assure that the candidate designated as the winner is in fact the winner. Part of the suit is a request, denied to date, for a recount of the ballots cast on Election Day.

In response to the suit, the County of San Diego filed a response questioning the authority of the local court to decide the case since (a) membership in the house was the province of the House of Representatives and (b) the speaker had already sworn in Bilbray.

Lehto and Simpkins filed a withering response to this argument. They point out that elections are the province of local and state authorities for all elections including federal contests, unless otherwise specified in the constitution. The following is form the filing yesterday:

Clearly, the swift swearing in did not end the election in the 50th Congressional District, and it did not render everything, including the certification of results weeks later, nugatory and without “jurisdiction.” If this swearing in had this effect, then in the course of dismissing this case the Court would be bound to conclude that the certification of the results after the swearing in of Bilbray was without force and effect, without jurisdiction, and in contravention of principles of federalism, as Defendants argue. That conclusion, however, requires either an absurdity, or the conclusion that our Congressional election was canceled by decision of the Speaker of the House, before all the votes were fully counted, and well before certification. Document available here.

So there you have it. Dennis Hastert, Speaker of the United House of Representatives, called “the peoples’ House,” now has the authority to nullify elections simply by swearing in candidates and claiming federal privilege based on one narrow section of the constitution, while completing ignoring the others, including the one stating that members of the House shall be elected every two years “by the People,” and not selected in Washington DC. Once again, the country is faced with a Bush v. Gore style selection manufactured in Washington DC, and if only the people did not know which party benefited and which party was hurt by the selection, the country would be unanimous in denouncing this power grab.

Ongoing support and interference by the House of Representatives or persons associated therewith continues in San Diego. Paul Vinovich, Counsel to the House Administration Committee, Chaired by Bob Ney, R, of Ohio, had a letter delivered to San Diego Superior Court presiding Judge Yuri Hoffman, with a number of arguments in favor of the Judge dismissing the case. This type of communication with members of the judiciary, particularly when another government authority is involved, is covered by strict rules. One such rule is that the ex parte communication be provided simultaneously to counsel for all involved. In his own hand, Vinovich says to plaintiff’s attorney Lehto, “Letter delivered to court last evening.” Lehto received the fax at 8:56 a.m. Thursday morning, many hours after the letter was admittedly provided to the judge by Vinovich.

In the letter, Vinovich admits the time sequence of a July 13 swearing in followed by a July 29th certification of the election and then, through circular reasoning, tries to use the certification as justification for the swearing in ceremony. He fails to note that Speaker Hastert would have needed psychic powers on June 13th to know that the swearing in of Bilbray would be justified by a June 29th certification.

We’re clearly at the point where members of the ruling party are making up rules post hoc to justify whatever actions they wish to take. We are also at a point where there is little if any opposition to this. The House is silent. With the exception of local and national voting rights activists and Chairman Dean, the opposing party is silent. The Defendants literally argue that the Courts are powerless to stop them (without jurisdiction). Friday will reveal whether the courts are powerless to stop this abuse of power and premature termination of elections.

Will Judge Yuri Hoffman carry on the emerging tradition of silence, or will he take us back to the courage and integrity shown by Judge John Sirica, a Republican appointee, who made history by demanding the truth from the Watergate burglars?

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