Democracy Denied: Meet the New Boss

Yes, the 9/11 series will be ongoing. No, this blog will not focus on "all that stuff" exclusively.

I was going to write something about the developments in the Francine Busby race -- developments with national significance -- but Michael Collins has already come up with a corker, and he has graciously allowed its republication. Visit Scoop Independent News here.

Everything below the asterisks comes from Michael Collins. His text will last until the next set of asterisks. After his piece, I'll return with some important additional comments by attorney Paul Lehto.

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San Diego Superior Court Judge Yuri Hofmann rendered his decision in the election challenge in California’s 50th Congressional District. He dismissed the request for a recount and for discovery of the facts of the Busby-Bilbray election stating specifically that "Once the House asserts exclusive jurisdiction and selects a candidate, the court no longer has jurisdiction" (emphasis added). The judge argued that the June 13 swearing in alone was sufficient to establish Bilbray’s “election.” The event had the power to take away any and all citizen rights and immediately rescind authority over their own elections.

Requests for a recount resulting from major problems with the election were deemed insufficient and the rights of voters to due process were cast aside in deference to Speaker Hastert or any future Speaker. The induction of Republican Bilbray was just seven days after the election and a full 17 days before the election was officially certified by the San Diego Registrar.

The plaintiffs lost their suit for an election contest and recount in this one congressional district. However, by bringing suit, they achieved an outcome that clearly proves the arguments expressed across the political spectrum from conservative legal scholar Bruce Fein to former Vice President Al Gore. In unambiguous terms, they and others decry the rapid descent of the United States into a state of tyranny which only affirms our long nightmare for democracy. Politicians can now manipulate, alter, and nullify elections if those politicians are the Speaker of the House or capable of influencing the Speaker. Arbitrary, centralized rule starts with the control of vote counting. It is now clear who controls vote counting and it is not the citizens of the United States of America. The People’s House is now the Speaker’s House.

Speaker Dennis Hastert swore in Republican Brian Bilbray even though there were requests for a recount and numerous public protests about the legitimacy of the outcome. According to the San Diego Registrar of Voters, as of June 15th, there were in fact still 2,500 votes to be counted. Evidence reportedly captured from the Registrar’s internet site indicates that on June 13, induction day, there were 12,500 votes uncounted. The San Diego Registrar did not officially certify this election until June 30th. Even when the election was certified, nearly 50% of the votes had not been assigned to the appropriate precincts.

(To read the rest, click "Permalink" below)

The information on uncounted and misallocated ballots was followed by the discovery that the California Secretary of State’s office, headed by Republican Bruce McPherson, allegedly provided confirmation that Bilbray had in fact been ‘elected.’

Chamber Action (Digest) U.S. House of Representatives: Page H3798
Oath of Office--Fiftieth Congressional District of California: Representative-elect Brian P. Bilbray presented himself in the well of the House and was administered the Oath of Office by the Speaker. Earlier the Clerk of the House transmitted a facsimile copy of the unofficial returns of the Special Election held on June 6, 2006 from Ms. Susan Lapsley, Assistant Secretary of State for Elections, California Secretary of State Office, indicating that the Honorable Brian P. Bilbray was elected Representative in Congress for the Fiftieth Congressional District of California. (June 13, 2006)

If this official did in fact provide such confirmation, a key question must be answered. On what basis was an official stamp of approval given to the election by McPherson’s office since results were not made official until June 30? Does the California Secretary of State now have the ultimate power to deem elections final, regardless of the status of those elections? To be more precise, does the Secretary of State now have the power to override citizen protests, challenges and strongly expressed concerns for purely partisan benefit? McPherson is a Republican appointed to this office by the current Governor of California.

The special election generated immediate controversy when it was discovered that election officials had taken home voting machines for overnight stays. The supposed rationale or pretense for these maneuverings was to expedite the convenient delivery of the machines to precincts on election day.

Citizens were furious for a number of reasons. To begin with, these machines have documented security problems which render them vulnerable to hacking and thereby enable the possibility that “malicious code” can be introduced to alter vote counting. In addition, the voting machines were not supervised in the homes nor were they clearly signed in and out. Remarkably, some voting machines even failed to make it from poll worker homes to the precincts on election day.

This obvious breach of security rendered the election void, it was argued. In addition, plaintiffs pointed out that the vote counting was done in secret since the computerized vote tabulation is not open to serious inspection by citizens or even election officials. The innermost workings are controlled by computer code that by agreement cannot be reviewed by election officials or citizens. Thus, the ability to view vote counting was in no way available. This is a right preferred by 92% of voters according to a new Zogby Survey.

Yesterday, attorney Lehto took an optimistic stance when he commented on the role of the public in taking back control of their elections.

The shutdown of any possibility of a court based investigation of the CA50 race could not be in more stark contrast to the 92% support for election transparency in the Zogby poll. The contrast between the two sides now could not be clearer. The question of the moment is whether and to what extent the 92% can discover its own supermajority status, or to what extent they continue to be deceived, deluded and distracted by illusions of their own powerlessness.

By dismissing this case, the judge leaves a legacy which sets a precedent for the surrender of responsibility for free, fair, and clean elections at the state and local levels by deferring to the arbitrary decisions of any Speaker of the House of Representatives. Using the judge’s logic, even cases of verified miscounts or election fraud would have no weight once the Speaker invokes his or her customary power of induction.

Tuesday, August 29, 2006 marks the day when every county in Californian lost the certain ability to monitor and manage elections. That function has been out-sourced to Washington, DC. It provides an unfortunate example for the rest of the country regarding the true conduct of elections and election law.

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Cannon here, again. Naturally, BradBlog has covered this matter like no-one else. Paul Lehto, one of this country's great crusaders for democracy, offered some commentary which deserves further exposure:

Courts often try to protect their rulings on appeal, they don't want to suffer the embarrassment of a reversal. So, in the course of making a ruling they will give alternative bases for them. In this case, the court stated that in the alternative it didn't find that the contestant's statements were sufficient or on enough personal knowledge. This is not something the defendants pounded on too much, so it makes it more likely that it is the court trying to put a belt and suspenders on its central ruling to protect it on appeal.

If you reflect on the context of secret vote counting here where information has been systematically denied by Registrar Haas, and specifically think about the electronic vote counting itself, it is NOT POSSIBLE for the contestants statements to be based very much or at all upon personal knowledge, given how the vote counting actually occurs with electronic voting and given that the Contestants are neither Diebold employees nor are they employees of the Registrar of Voters. Even if a real whistleblower were a key witness, that would STILL not make the contestants' statements ones made on *personal* knowledge. One could read the ruling as setting up the issue of secret vote counting for appeal, given the difficulty or impossibility of anyone having personal knowledge of facts, as opposed to "information and belief" from other sources, as the court finds lacking.

I would not read too much into the alleged insufficiency of the contestants statements, which were each many pages long. There is, however another aspect of the case which is to say that substantial information was denied to us, so on that level, there could be some insufficiency of pleading things that we still don't know about. But in that case, the Registrar of Voters should not be able to stonewall the information requests, and then take advantage of that stonewalling by alleging that the contestants statements are insufficient. In part, we have a problem here of statutes passed with paper ballots in mind being applied to electronic situations.

It is also necessary, to understand the court's ruling, to read it with the briefs and requests of the defendants, which also provide the context and some of the reasons for the posture of the court's ruling. The ruling does not stand totally alone, in that regard, but must be read with the briefs of the parties and the motions of the parties in mind.

One other note, the court's statement that immediately follows this particular sentence appears not to be based on the reading of the case file or the contestants statements, but rather on a reading of some of the more limited press coverage of this issue, since for example the petition specifically alleges ballot definition error and other things that go well beyond the court's statement here: "The Contestants’ Statements and the Election Contest itself allege 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." There was much more than that, and in this regard readers of bradblog would be seriously misled if they took this statement at face value.

Finally, we specifically RAISED the issue of the premature swearing in prior to certification in the opening paragraphs of the Petition for Election Contest, thus raising those facts as part of our contest. We asked the Court to recognize the difference between reviewing the Constitutionality of a premature exercise of an otherwise valid power (something courts often do) and not to see the issue purely as one of jurisdiction, as invited by the defendants to do. The Court, of course, chose to see it as a question of its jurisdiction.

Although we can not peer into the Court's motivations like we can the defendants thanks to their signed briefs, sometimes trial judges send things up to the appellate courts where cases of first impression like this belong, or will inevitably end up, anyway.

And:

Step One: Take Zogby 92% support for public involvement in vote counting and right to information on vote counting. Take also, belief in democracy and its nature as meaning all political power originates in the people.

Step Two: Take CA 50 realities of outright election termination, election nullification, denial of information regarding elections, and assertions of absolute power.

Step Three: Compare and contrast above two items.

Step Four: Realize that there is now, unlike before, very clearcut and open contrasts.

Isn't this what is known as a winning political issue, in the long run?

It seems the only way to really beat the 92% is to help them continually and constantly FORGET that they are the 92%, or to get them to move away from the central core of election rights to watch, rights to know, and rights to supervise elections.

Hey, in the legislative branch voting records have to be published SO THE PEOPLE CAN JUDGE their representatives.

In the judicial branch, there are juries SO THE PEOPLE CAN JUDGE guilt and innocence and liability.

In the executive branch which runs elections (concerning voting, the right that protects all other rights) the people ARE NO LONGER NEEDED????

Or, perhaps the prior paragraph is really supposed to end "there is public supervision of vote counting, SO THE PEOPLE CAN JUDGE THE FAIRNESS of elections."

To this, I must add that I'm a little concerned by Lehto's comment "Isn't this what is known as a winning political issue, in the long run?" We all recall, or should recall, what John Maynard Keynes said: "In the long run, we are all dead." What is the use of a winning political issue when facing a dysfunctional political system?