Monday, July 31, 2006

Lehto Launches Legal Challenge to San Diego Election

I woke up Monday excited to monitor the situation in San Diego. I was temporarily sidetracked by the major announcement from the Open Voting Foundation which exposed "the worst security flaw we have seen in touch screen voting machines," according to OVF President Alan Dechert. I posted more about this here. Meanwhile, Paul Lehto was popping up just about everywhere else I turned.

Lehto (who wrote the Foreword to my book) is the attorney who filed suit Monday on behalf of voters Barbara Gail Jacobson and Lillian Ritt, arguing that the June 6 election between Brian Bilbray and Francine Busby for California's 50th District Congressional seat "was an unconstitutional election, and therefore void and invalid." Plaintiffs seek relief in the form of a hand count that could potentially contribute to removing a now-sitting Congressmember who was sworn in before all votes were counted and prior to the election's certification. Read the 12 page case here (.pdf).

Lehto is merciless on San Diego Registrar Mikel Haas, notorious now for withholding documents relevant to public information requests and for providing three different, arbitrary, price quotes for the conduct of a hand count.

18. The actions of Defendant Haas, as Registrar of Voters, and [unnamed defendants, county employees] Does 1-50, constitute such reckless indifference and intent to obscure the chain of custody, and frustrate reconciliation of ballots and other accountability for election mistakes, as to constitute aiding and abetting fraud or attempts at fraud and aiding and abetting, in violation of California Election Code, section 18500.


25. Defendants, Mikel Haas, and Does 1-50, deliberately concealed and frustrated the ability of the public to determine whether or not fraud occurred such that, in addition to the affirmative evidence of fraud pleaded herein and in verified statements filed herein, there has been such a radical departure from the expected chain of custody and compliance with recordkeeping requirements that the ability of the public to detect fraud has been radically frustrated or eliminated.
Lehto goes on to cite the Mississippi Supreme Court, which in a case where the ability to detect fraud had been systematically removed, ordered a new election be held. I was certainly expecting the hand count request at the end but this information makes me wonder if it is the proper remedy after all? It is argued that the correct total number of ballots cannot be known. Doesn't this preclude the possibility of a conclusive result from the intended hand count? I have invited Lehto to respond to this question.

For more interesting reading related to the case, see the press release first shown on, later circulated on US Newswire, and shown in full at the bottom of this post. RAW Story also has an exclusive interview conducted with Lehto on Sunday.
Lehto expects his case will be placed on a "rocket docket" for speedy trial within 45-60 days. "The key is that there is no basis for confidence," he said. "Haas cannot prove that Bilbray won the election, properly...There is not enough chain of custody to show that." [emphasis added]


Lehto, a business and consumer fraud attorney, is a retired governor of the Washington State Bar Association and was voting [sic] "Rising Star" in 2003 and 2004 by Washington State Law and Politics magazine. He appears on radio and television shows and is considered a national expert on election reform issues.


Asked what voting system he would most trust, Lehto noted that optical scans could in theory be "reasonably accurate if you have the right checks and balances, and you have precinct counts." But he added, "If one of those checks or balances is missing, all bets are off." [emphasis added]

Lehto would prefer to see optical scans and touchscreens ditched in favor of a far lower-tech solution. "Paper ballots, hand-counted --– not by opti-scans --– are overall the best system," the election protection attorney concluded.
Another interesting fact I did not previously know is that Snohomish County, WA circumvents the machine sleepover problem by using just nine US Post Office trucks to deliver voting equipment to polling places on the morning of an election. San Diego is about three times as big. Humboldt, about one-sixth the size of Snohomish, just lost one more excuse for its own non-compliance.

Finally, on Monday afternoon Lehto did a great interview on the nationally syndicated Ed Schultz radio show. BradBlog has it archived (.mp3). Such is an auspicious beginning to this next chapter in our quest to restore Democracy. This legal challenge is being mounted entirely on citizen contributions. Donations can be made through

Election Contest Filed Demanding Accountability, Decertification, Paper Ballot Count of Busby/Bilbray Election in CA-50

7/31/2006 11:06:00 AM

To: Assignment Desk, Daybook Editor, Political Reporter

Contact: Ilene Proctor PR, 310-271-5857

News Advisory:

Election Contest Filed Demanding Accountability, Decertification, Paper Ballot Count of Busby/Bilbray Election in CA-50

-- Press Conference Set for 10:30 a.m. in San Diego

Today, famed election attorney Paul Lehto filed an election contest lawsuit in San Diego County Superior Court demanding a count of all paper ballots in the Busby/Bilbray special election to replace convicted Republican Congressman Duke Cunningham. On the face of the pleading, Lehto, on behalf of voters of CA-50, asserts that they are entitled to a 100 percent ballot count at a reasonable cost because of massive security violations of federal and state law by election officials.

California state law requires that all votes cast in an election be properly counted and tabulated. In the CA-50 election, however, it cannot be determined whether or not all votes were counted because legally mandated procedures were violated both in the run-up to the election and during the official voter request for a hand ballot count. County Registrar Mikel Haas sent the Diebold voting machines on "sleepovers" in the unsecured homes and cars of volunteer poll workers for weeks prior to the election in violation of federal and state law. When voter Barbara Gail Jacobsen filed for a recount, Haas set an exorbitant price of $150,000 but refused to provide the documents necessary for that count.

"Given the fact that all the voting machines were circulating in the county for at least a week prior to the election, and manipulation of a single machine can rig an election, there is no basis for voters to have confidence in the election results," attorney Lehto said. Indeed, because the Diebold machines used in the election were conditionally certified by the Secretary of State under stringent security and chain of custody conditions to protect against manipulation, the lawsuit asserts that non- compliance with those conditions necessarily requires decertification of the election results.

A press conference will take place today on the steps of the San Diego County Superior Court at 10:30 am. Lehto, voters and activists will be on hand to talk about the lawsuit and their plans for further action to ensure compliance with all California election laws., a network of scores of election reform organizations demanding honest and accountable elections, is handling the fundraising for this CA-50 legal challenge and donations are being accepted on its website,


/© 2006 U.S. Newswire 202-347-2770/

Posted by Dave Berman - 11:25 PM | Permalink
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