COURT TOLD VOTES DON'T HAVE TO BE COUNTED, CERTIFIED

Source: The Raw Story (www.rawstory.com)
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Filed by Miriam Raftery
08/28/2006 @ 12:12 pm

San Diego, CA -- A motion to dismiss a congressional election challenge in California took on national implications last week when defense attorneys argued that no court has jurisdiction to intervene in an election after Congress has sworn in a member, RAW STORY has learned.

Superior Court Judge Yuri Hofmann heard arguments Friday on a motion to dismiss the election challenge lawsuit filed by voters seeking a full hand recount in California’s 50th Congressional district.

Paul 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.”

Republican Brian Bilbray was sworn into Congress just seven days after a special election against Democrat Francine Busby – before all ballots were counted and a full 16 days before the election was certified. On Friday, attorneys David King and Jim Chapin (representing Bilbray and San Diego Registrar of Voters Mikel Haas) argued that a lawsuit brought by two voters should be dismissed because only Congress has the power to seat or unseat its members. (See previous RAW STORY coverage of this case.)

Defense attorneys cited Article 1, section 5 of the U.S. Constitution, which states that each House is responsible for the elections of its own members. Defense lawyers also noted that on June 13th, House members seated Bilbray by unanimous consent, and that Busby could have filed her own challenge in the House.

Lehto countered that defendants were making a “power play” and noted that swearing Bilbray in as a member of Congress may constitute a record for speed. Normally, swearing in occurs 30-45 days after an election – and after certification by local election officials.

The motion could determine whether the premature swearing in of a member is constitutional.

“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.”

--snip--

Judy Hess, coordinator of the CA-50 election integrity group, offered an eyewitness account of the courtroom proceedings. “Paul’s argument was so eloquent that I found myself on the verge of mistiness at one point. My words tell you much of the argument— but I can’t do the presentation justice. He has set up the classic tensions, though, between different parts of the Constitution, and also the tensions between Federal and States’ rights….I knew I was watching a little slice of history…”

A decision on the jurisdictional issue is expected on Tuesday, August 29. Updates on the case may be found at NoSleepovers (a site set up by CA-50, which is seeking donations to help cover the costs of filing the challenge) and at BradBlog.

“Checks and balances and judicial review are what this case is all about--not blindfolding our eyes and withholding the truth,” Lehto concluded. “The public interest and integrity of our elections…and of the entire country are implicated here.”

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