Elections can't be challenged, judge rules
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by Philip J. LaVelle, San Diego Union-Tribune
Aug. 30, 2006
A Superior Court judge yesterday dismissed a lawsuit that sought to void the June 6 special election of Republican Rep. Brian Bilbray, saying only the House of Representatives has jurisdiction to challenge the election of its members.
Judge Yuri Hofmann noted that the House unanimously voted to swear Bilbray in on June 13, and with that act "this court no longer has jurisdiction."
In his ruling, the judge cited Article I of the U.S. Constitution, which says, in part, that the House and Senate "shall be the judge of the elections, returns and qualifications of its members."
The lawsuit was filed July 31 on behalf of two voters, Gail Jacobsen, a San Diego mediator, and Lillian Ritt, a Rancho Santa Fe lawyer. The suit asked Hofmann to void the results of the special election and order a recount of all ballots.
At a hearing Friday, plaintiffs lawyer Paul Lehto argued that the court does have jurisdiction.
Drawing comparisons to the controversy surrounding the Florida vote count in the 2000 presidential election, Lehto said the Republican-controlled House short-circuited the vote count by swearing in Bilbray before county officials had certified the election.
The lawsuit also alleged that an accurate vote count could not be obtained, because voting machines were taken home for "sleepovers" by poll workers before Election Day and might have been tampered with.
County Registrar of Voters Mikel Haas has said that nothing improper occurred and that the practice is the best way to ensure that polls open on time on Election Day.
In his ruling, Hofmann said the plaintiffs alleged "no more than that there was a possibility of security breaches and hacking of the voting machines used in this election. Such broad, unsubstantiated claims are not enough."
Bilbray, of Carlsbad, defeated Democrat Francine Busby, a Cardiff school board member, 49 percent to 45 percent to finish the months remaining on the term of former Rep. Randy "Duke" Cunningham in the 50th Congressional District.
Cunningham, a Republican, pleaded guilty to conspiracy and tax evasion after admitting to taking more than $2.4 million in bribes from defense contractors. He is serving more than eight years in federal prison.
Busby faces Bilbray in the November election to determine who will serve the next two-year term in the heavily Republican district, which spans communities in northern San Diego city and North County.
At Friday's hearing, James Chapin, a lawyer for Haas, noted that the plaintiffs had requested a ballot recount but then decided against it. The lawsuit claimed the costs were prohibitively high.
After yesterday's ruling, Lehto said his clients had not immediately decided whether to appeal.
Lehto said the results of the June 6 election will never be known because "no citizen can have broad personal knowledge of what goes on on the inside of a Diebold" voting machine.
The vast majority of votes in the June election were cast on paper ballots, read by optical scanning machines. A small percentage of votes were cast on Diebold touch-screen machines.
Bilbray lawyer David King said the lawsuit was political.
"If there were a legitimate concern over the county's voting systems, they could've contested any of the 138 elections on the June ballot," he said. "They only chose this one."
Lehto told reporters: "We set out to prove that an election was corrupted. ... We proved, and the judge helped us prove, that democracy was corrupted."
Archived from original publication
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Commentary by Helen & Harry Highwater:
Read this news very carefully. It ought to scare the bejeebers out of you:
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Judge Yuri Hofmann noted that the House unanimously voted to swear Bilbray in on June 13, and with that act “this court no longer has jurisdiction.”
In his ruling, the judge cited Article I of the U.S. Constitution, which says, in part, that the House and Senate “shall be the judge of the elections, returns and qualifications of its members.”
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The election results had not been certified when Brian Bilbray flew to Washington DC and was sworn into Congress, on June 13. The election was close and smells funny, and it's still being challenged by a few die-hard fans of democracy, but apparently the vote count is irrelevant — because Bilbray was sworn in.
He was sworn in weeks before the election was certified, but his position in Congress cannot be questioned by a judge, or at least, that's this judge's ruling. The state's voters have no legal standing to challenge this — because Bilbray was sworn in.
The Republicans have discovered yet another tactic to circumvent elections. Under the logic of this ruling, Republicans who control Congress can swear in Republicans who 'win' an election before a recount is conducted, or before a recount is even possible. They can simply swear in their preferred candidate, and all challenges and recounts become moot.
Following this concept to its logical conclusion, is there any reason why the Republican Congress couldn't swear in the Republican candidate, even if an opposing candidate clearly has more votes? Why bother conducting elections for Congressional seats, if the party in power can swear in anyone they choose, and their decision cannot be challenged?
Helen & Harry
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Judge Yuri Hofmann noted that the House unanimously voted to swear Bilbray in on June 13, and with that act “this court no longer has jurisdiction.”
In his ruling, the judge cited Article I of the U.S. Constitution, which says, in part, that the House and Senate “shall be the judge of the elections, returns and qualifications of its members.”
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