As diaried earlier
here and
here, an election challenge in the CA-50 race between Republican Brian Bilbray and Democrat Francine Busby hit an ominous brick wall on Aug. 28, when Superior Court Judge Yuri Hoffman dismissed a lawsuit seeking a full hand recount on
'jurisdictional' grounds: (italics added)
Saying he lacked jurisdiction, a judge Tuesday dismissed a lawsuit seeking a recount in the special election that Republican Brian Bilbray won in June to replace disgraced ex-Rep. Randy "Duke" Cunningham.
Superior Court Judge Yuri Hoffman said that once the House of Representatives asserted its exclusive right to swear Bilbray into office, it left the court without jurisdiction in the election contest.
A central issue involved was the question of whether House leadership could swear in a candidate before votes were formally certified. Hoffman's answer: yes. His motion to dismiss effectively nullified voter or court jurisdiction over state elections, placing the final say in the hands of the federal House of Representatives. In the wake of this astounding ruling, Raw Story reports today that a Nevada court has extended House control further:
For the controversial ruling, Judge Yuri Hofmann relied on arguments brought by attorneys representing Bilbray and San Diego's Registrar of Voters to dismiss the case, relying on Article 1, section 5 of the Constitution to find that only the House of Representatives has jurisdiction over its members' races.
Now a Nevada court has extended House powers even further, ruling on Friday that citizens and courts have no power to object in a Republican primary election - even though neither candidate is an incumbent currently serving in Congress.
Paul Lehto, attorney for the two citizen contestants in the CA-50 challenge, objected thus to the defendants motion to dismiss, prior to Hoffman's ruling:
...Lehto, a nationally prominent election law attorney representing two voters who filed the suit, called the motion an "invitation to the Court to ratify a seizure of power" that amounts to "invading the sovereignty of a state."
..."The specific intent of Congress on June 13 was to deprive this Court of jurisdiction," Lehto testified. "If they can do that, they can do anything."
Lehto urged Judge Hofmann to uphold the Constitution as a whole, including provisions which state that the federal government is a government of limited power and that governments receive power from consent of the governed. He further noted that Article 1, section 5 of the Constitution does not prevent recounts and cited state election codes granting the State the power to regulate the time, place and manner of elections. "The State can control the count of votes and the recount of votes," he added.
In the wake of these two recent court rulings, Lehto comments on their wider implications in an interview with Raw Story's Miriam Raftery:
Q: What happened in Nevada?
A: A Congressional election contest in Nevada's second Congressional district was dismissed on Friday on the same Constitutional jurisdictional grounds in the Republican primary. So even though Article I, section 5 refers to the house judging the qualification of its members, nobody in this primary is a member. It's an open seat, but the judge bought that argument.
Q: How far might this be carried? What could [they] do next?
A: The next thing is they would look at a Democratic Party and maybe Speaker Hastert or the House could decide that they have a certain position, and what if the Senate decides we're the sole judge of our members? Now that they've taken the absurd step of overturning a primary, the next step is for them to say we support Lieberman, not Lamont.
And then there's Texas:
Q: What are the ramifications of this for the race in Tom DeLay's district?
A: The Democrat in DeLay's district was running unopposed because the Republicans did not nominate someone who was eligible at that time. Cngressional Quarterly presently lists that district as leaning Democratic, so that would be a pickup of a seat for the Democrats. On Monday, August 28, the judge put on the Internet his tentative decision and there was even an Internet press report. On Tuesday [August 29] the same day as the formalization of Judge Hofmann's decision to dismiss, the Governor of Texas suddenly announced a special election would take place in Texas to happen as the same day as the general election.
Q: How might Article 1, section 5 arguments be used in that race?
A: There's one main Republican candidate way ahead of others, the favored candidate the Republicans would be running as a write-in against Lampson, the Democrat running for the full term. So there are two elections, one for a two-month term, one for a two-year term, and Lampson is unopposed for the two-year term except for write-in candidates... This detail is interesting. Initially Lampson was quoted as saying he's running for the special election too, but then a couple of days later, he changed his mind and said he would not run in the special. But I think strategically, that is a much better decision because if he runs in the special there is a head to head race for Congress and if a Republican wins, they could argue that but for a technicality she would have won the general election too, and they could just choose to swear in the Republican for the short term, but also continue to keep her in office.
And the national midterm elections:
Q: Do you foresee this being used on a national level?
A: Another completely separate and independent way in which this whole power could come into play would be if we have the long-predicted train wreck happen in November with widespread meltdown and problems with machines, such that it appears that election results are uncertain. Then the Republicans can use the swearing-in power at least as broadly and wrongly interpreted by the trial courts in California and Nevada to either keep Republicans in office or to swear in the candidates that they deem elected.
Q: Let's carry this to the height of absurdity. What if you actually had a recount that proved a "winner" really lost, as happened in Pottwattamie, Iowa. Could the GOP keep in office someone who actually lost by a landslide?
A: Yes. Because they have interpreted exclusive power, the only thing that could be done is to make the House pay a political price, but without a media echo chamber, the political price may not be significant at all.
On the question of an appeal of Hoffman's ruling:
I believe very strongly that both an appeal should go forward and should not go forward, interestingly enough. It should go forward because even if the law clearly prohibited the state and citizens of California from supervising their own elections for Congress, that should be appealed and the court should be requested to change that law or interpret in such a way that it doesn't apply to the facts of this case. From that standpoint, we are defending democracy here so there should not be any discussion of winning or losing... We should be willing to go down with the Alamo...
But there is also a strategic point for not bringing an appeal, and that is if it's an important public issue, the appeal must be very carefully prepared and fully-funded. It's wrong to sacrifice the sacred democratic rights of other people without being very, very serious about it.
And finally the importance, ways, and means of mounting an appeal:
...My position is that citizens can and must have the right to supervise an election and police their own challenge to an election. Candidates are among the last people in a race who are going to want to contest the race because there is a lot of public condemnation that will be heaped on them as a sore loser... They will be made to pay a very high price, unlike a citizen. In our case, I don't think the citizens have been publicly vilified in the press. They have not had a price to pay like a John Kerry or a Francine Busby would. That's one reason why you shouldn't count on candidates to file an appeal. The other is that the source of all power is from the people and the people have to take the right to challenge their own elections even if a candidate is deterred from doing so.
Q: Where can readers send donations to cover legal costs?
A: www.velvetrevolution.us or www.nosleepovers.org.