Appeal Filed in Bilbray Election Challenge

Friday, 6 October 2006, 12:18 am
Article: Michael Collins

Attorneys Paul Lehto and Kenneth Simpkins just entered an appeal to a California Superior Court decision that prematurely ended an election contest in California’s 50th Congressional District. Just seven days after the election, Speaker Dennis Hastert swore in Brian Bilbray on the House Floor on June 13, 2006. Hastert claimed that Bilbray was the rightful winner of the close election based on a communication he received from the office of California’s Republican Secretary of State, Bruce McPherson.

At the time of Hastert’s induction there were charges of major election problems and questions raised about the security of voting equipment. In addition, the election had not yet been “certified” by the Registrar of San Diego County. Certification did not take place until the end of June. Hastert claimed, via Bilbray's legal filings, that Bilbray was the rightful winner of the close election and that state courts had no power whatsoever to even look into the matter.

Appeal Filing pdf here or here .

Citizens Barbara Gail Jacobson and Lillian Ritt sued now Congressman Brian P. Bilbray and San Diego Registrar Mikel Haas to achieve a recount and close examination of the election. The case centered on secret vote counting by the Registrar, the dispersal of voting machines to the homes of poll workers well in advance of the election (and without supervision), and irregularities like failure to allocate 50% of the ballots cast to appropriate precincts. Key Constitutional issues were raised concerning the right of states and localities to conduct and judge elections. The letter that the Speaker apparently relied on indicated that there were 68,500 uncounted ballots, and that certification would have to be transmitted later "as required by law."

Judge Yuri Hoffman dismissed the case after hearing several days of evidence and argument. He cited the ultimate authority the U.S. House of Representatives to rule on the selection of its own members. Thus, Hoffman reasoned, when Speaker Hastert swore in Bilbray just seven days after the election amidst intense controversy, that induction ended any further appeal of the election outcome by state and local officials. Attorney Lehto was quick to note at the time, “The election nullification is out in the open, it is intentional, it is signed by their lawyers, and it can't be denied.” One activist pondered, “What if they’d found pictures of election workers stuffing the ballot boxes or manually changing totals after Hastert’s little ceremony?”

Election law attorney Paul R. Lehto commented:

This concerns the constitutionality of House Speaker Dennis Hastert's action to swear in Republican Brian Bilbray to Congress only 7 days after the election. A minimum of 12,500 ballots were still uncounted, the race was reported as only approximately 4,000 votes apart, and certification would not take place for more than two weeks. Despite these facts, the defendants argued that this premature swearing in deprived the state courts and everyone else of all power or jurisdiction to look into the election, an "exclusive jurisdiction" instead vesting in the House of Representatives alone.

This story was covered extensively by “Scoop” Independent News in August. The three part series included the following articles by Michael Collins.

• Scoop: Congressional Election Nullified – Nobody Noticed Aug. 25, 2006
• Scoop: Election Nullification 2: Speaker's Special Source Aug. 28, 2006
• Scoop: Democracy Denied: Meet the New Boss Aug. 31, 2006

This story is a chronicle of recent political corruption in the House of Representatives. The special election between Busby and Bilbray resulted from the resignation of convicted criminal Randy “Duke” Cunningham, the former representative from the 50th district. The swearing in of Cunningham’s replacement, Bilbray, created more controversy due to the seeming attempt to avoid any real challenge to the election. The current legal action arises at a time when Speaker Dennis Hastert is accused of neglecting the safety of Congressional Pages while providing a safe harbor for Florida Rep. Mark Foley. Foley is accused of sending Pages (who are minors) sexually suggestive emails of a homoerotic nature.

The California Court of Appeal, Fourth Appellate District, Division one is expected to rule soon on the appeal. Upholding the decision by Judge Yuri Hoffman will represent the surrender of any real local or state authority over House elections to the Speaker’s authority. Reversal will create a state – federal challenge over election authority. In either case, the outcome will be an important but not final juncture in this ongoing story of corruption, elections, and the politicians who, from time to time, nullify that which they do not accept.

ENDS

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