Wednesday, August 30, 2006

So much for checks and balances, welcome to absolute power

Judge Yuri Hofmann on Tuesday afternoon dismissed the lawsuit brought by San Diego voters contesting the June 6 election of Brian Bilbray to California's 50th Congressional district seat. Bilbray was sworn in to Congress while his election was not yet certified and the vote count was not yet complete. These are but some of the many grounds cited for the election challenge. But no matter how damning the evidence, it would not get its day in court.

The motion to dismiss, filed by defendant Bilbray, claimed the court has no jurisdiction. Indeed, Hofmann cited numerous precedents of courts keeping their distance from a legislative fray. BradBlog has the full decision here. From a 1951 case before the CA Supreme Court, Hofmann quoted:

"Under our form of government the judicial department has no power to revise even the most arbitrary and unfair action of the legislative department, or of either house thereof, taken in pursuance of the power committed exclusively to that department by the constitution..."
Plaintiffs' attorney Paul Lehto issued a lengthy public statement in response to the ruling. It is posted at BradBlog just beneath the Hofmann opinion, and also appears at the end of this post. Lehto circulated additional comments by e-mail. An excerpt:
[O]ur declaration of a (sad) victory by our side to the media today is because we've proven, beyond a reasonable doubt, that the defendants INTENDED to terminate the elections process and knew full well that this would be the effect of their unilateral and premature swearing in of Bilbray only 7 days after the election. The subsequent claim (and this is the most important element) that this sweating [sic] in rendered the court powerless and without jurisdiction because the "exclusive jurisdiction" transferred to the House by the swearing in, means that the certification of the allegedly "final" results by Registrar Haas was clearly void, resuilting [sic] in an invalid and incomplete election legally for Bilbray, the VERY POINT we sued to prove! (because the certification, being post-swearing in, was without force and effect and void, as is the Court's power, since "exclusive jurisdiction" transferred to the House, thus not only was the court rendered without power to affect the election, so was Registrar Haas)

In summary, the intent to terminate the election process prior to its end and even while as many as 12,500 votes remained uncounted shows clear intent to manipulate the elections process. There's a whole new population of people who are so good-hearted that they have a problem understanding that there are many people out there willing to manipulate elections for advantage. We should invite them to see that here in San Diego's fiftieth, the knife of raw power was drawn and used intentionally on June 13th, and given the dramatic nature of the claim of absolute power that followed in briefing to the Court around August 22 and after, it is beyond a doubt true that they fully intended to find an end-around the completion of elections, to find an end-around the US Supreme Court case that held that states have rights to do both counts AND recounts under Art I, sec. 4 of the Constitution, and that end-around termination of democratic elections was that in Roudebush v Hartke the Senate respected the courts, but in the case of Bilbray, the Speaker of the House decided not only that he'd seen enough of the election, but that he'd had it with the courts, too!

So much for checks and balances, welcome to absolute power.
In the simplest of terms, this is a new low for America. Yes, I know, it seems like we've bottomed out thousands of times already in recent years. I have to account for the paradigm shift this news has brought me. Consider, for the past two and a half years I've been writing and saying to all who can read and hear that there is no basis for confidence in the reported results of American elections. In a quote featured on the back cover of my book, We Do Not Consent (free .pdf download), Lehto says the "no basis for confidence...formulation approaches scientific certainty." When votes are counted in secret, the conditions of the election guarantee inconclusive outcomes that will not meet unanimous public acceptance.

Working with this premise, I started looking at what it would take to create a basis for confidence, where none currently exists, and to ensure election results could be conclusively determined. I can't say I pinned that all down to a science. But after 15 months of community meetings, debating, gathering input, making revisions, and lobbying local government, on July 20, 2005 the City Council of Arcata, CA adopted the Voter Confidence Resolution (VCR).

The VCR includes an eight-point election reform platform. I have always been clear that any one of the reforms alone, while welcome, would constitute a false alternative. That means no one election reform can independently create a basis for confidence or ensure conclusive outcomes. What good would it do to have instant runoff voting, for example, if the results will be equally in question with or without it? The same applies for each of the other items in the reform platform.

The dismissal of the CA-50 lawsuit has changed my entire view of how I've framed this work for so long. Election reforms are each an uphill marathon to introduce and ultimately implement. What I realized today is that conclusive election results are no longer a viable indicator of the existence of Democracy. For just like the above example of the false alternative, what good would it do to ensure conclusive outcomes if Congress is still equally entitled to pre-empt any such results in favor of appointing new members at will?

Two other points I've repeated ad nauseum:
In Blueprint For Peaceful Revolution (.pdf) I define peaceful revolution as a shift in the balance of power between the government and We The People. With credit to Rebecca Solnit's "Hope In The Dark," this definition differentiates between changing figurehead leaders and restoring Consent of the Governed as the only legitimate source of government's "just Power" (see Declaration of Independence). In other words (for example), impeachment, which leaves the failed, corrupted, and exploitative system intact, would not constitute revolution. Without the right to elect representatives to government, We The People have lost a measure of self determination and cannot be considered Free People.

Here too we can compare and easily see impeachment as the false alternative. To imagine shifting the balance of power, think of regaining self determination and reasserting mastery over public servants, both of which I am no longer convinced could occur as the result of changing election conditions to produce conclusive outcomes. The work of the election integrity movement, and attorneys such as Paul Lehto and Lowell Finley, are inherently revolutionary. Embrace it, do not fear it. We are the overwhelming majority greatly in need of increasing the self awareness we have of our group size (92% of Americans).

* * *

A revolution never come with a warning
A revolution never send you an omen
A revolution just arrive like the morning
Ring the alarm we come to wake up the snorin'

--Lyrics to YELL FIRE! by Michael Franti and Spearhead (.mp3)

Attorney Paul Lehto response to Judge Hofmann's dismissal of the CA-50 lawsuit:

Today the court dismissed the election contest in San Diego's 50th Congressional District, holding that it had no jurisdiction or power to hear an election contest, administer a recount, or allow any evidence at all to be produced concerning a Congressional election, after a Representative has been sworn into the House of Representatives.

This powerlessness to protect the voters or the integrity of our elections on the part of the Superior Courts of California is due to the early, unilateral and premature swearing-in of Brian Bilbray to the House of Representatives on June 13th, only seven days after the election of June 6. The defendants claimed in briefing filed with the court on or about August 22, and the court held today, that the premature swearing-in resulted in the "exclusive jurisdiction" of Art. I, sec. 5 concerning elections to be transferred to the House of Representatives. After that point, this exclusivity means that nobody else has authority concerning any aspect of the election.

The swearing-in was indeed premature and an undemocratic transfer of power away from the People and in favor of politicians in Washington DC for numerous reasons. As of June 13th:
# 1. By written admission of the Registrar of Voters in a letter there were thousands of votes were still uncounted on June 13th, the letter stating that 2,500 votes were still uncounted as of June 15 at 5 p.m. PST, Eastern Standard Time, which is slightly more than two days after the swearing-in on June 13th.
# 2. Partial election totals indicated on June 13th that only a few thousand votes separated the candidates,
# 3. As of June 13th, the defendants knew or should have known from news reports that the election would be disputed with recounts requested,
# 4. As of June 13th, no manual audit had been started or completed as required by California law, and
# 5. As of June 13th, it would still be 16 days or more before official certification of the election results - the only thing that makes an election complete, legal and official.
# 6. Even as of today's date, no human being or combination of human beings have counted these votes even once; we've only been provided with totals to be taken on faith from reports of Diebold optical scan and touchscreen voting machines, with the possible exception of a 1% hand audit.
# 7. On the level of the principles that our country was founded upon, the only legitimate political authority is that derived from the consent of the governed, and a fair election process. Given that elections are purely procedure and don't promise us substantive results that the best candidate will necessarily win, if the procedure of the elections is compromised, there is no political legitimacy. As it stood, the thousands of people and organizations concerned with this election all declared that based on all of the procedural irregularities ranging from sleepovers of voting machines, to precincts with turnouts that were thousands of percent higher than registered voters, there was simply NO BASIS FOR CONFIDENCE in the June 6 election.

Taken together, this partial list of circumstances means that the election was not finished when exclusive power was transferred to the House by the swearing-in on June 13th, and it terminated the democratic processes that we all expect to operate to their conclusion. In other words, if this was a sports game, it was as if the Speaker of the House terminated the "game" and declared victory with something like ten minutes left on the clock, instead of playing this closely contested game until the clock ran out as we would all expect. This denied due process (a complete election) to the voters, denied equal protection of the law to the 50th Congressional District (which does not have recount rights, while other Congressional districts and other election races do have recount rights) and, in fact, denies democracy to us all.

Today, the plaintiffs are declaring victory, having proven not only that an election was corrupted and invalid, but that democracy itself was denied. The House of Representatives denies that voters have any say whatsoever. They've exercised their absolute power to swear in Bilbray, and they've heard enough of this elections business, they deem a recount or investigation unwarranted. Checks and balances of elections have been eliminated, the public's right to supervise elections by witnessing vote counting and obtaining information about it has been denied, and in its place is an assertion of absolute uncheckable power, something that was clearly anathema to the people who wrote our Constitution and founded this country specifically in the context of elections, because elections were intended to be the People's primary if not sole protection against oppressive government, but if the House of Representatives can legally do this, then they can legally do anything, including ignoring elections entirely.

It is particularly troublesome that the Speaker and the Representative sworn in are members of the same political party. If only none of us knew which political party the Speaker of the House and Representative Bilbray were both affiliated with, I think all americans would agree that this was an improper action by the House, an abuse of elections, and a crime against democracy.

In fact, the decision to swear in Bilbray by the Speaker of the House of Representatives, was based on a fax of unofficial results sent by Suzanne Lapsley of the California Secretary of State's office to the House of Representatives. Presumably, the Speaker made an assessment that no further vote counting, auditing or certification would be necessary, and Bilbray was sworn in, with the intent that thereafter any and all actions taken by anybody would be void and without force and effect, due to the "exclusive jurisdiction" of the House concerning the Qualifications of its Members.

In summary, we set out to prove that a *particular* election in the 50th Congressional District in California was invalid and corrupted. What we in fact proved today, beyond any reasonable doubt, was that democracy itself was prematurely terminated and denied by the intentional actions of the defendants and the Speaker, and that they specifically intended this effect to occur, as they argue vociferously in their briefs that the plain and clear meaning of their premature swearing in was to render everyone else without power or jurisdiction to do anything. Under their interpretation of Art. I, sec. 5 of the US Constitution, everyone else except the House of Representatives is powerless to do anything about any election once a member is sworn. It is not within the legitimate sweep of this power, however, to exercise it before the election is over. Ironically, this tactic rendered the certification of the election null and void, so in this sense the defendants agree with the contestants that the election certification was not valid.

In dismissing this case on constitutional jurisdiction grounds, the court stating in its opinion in part, quoting another case with approval:

"Under our form of government the judicial department has no power to revise even the most arbitrary and unfair action of the legislative department, or of either house thereof, taken in pursuance of the power committed exclusively to that department by the constitution …. {…} There is no provision authorizing courts to control, direct, supervise, or forbid, the exercise by either house of the power to expel a member. These powers are functions of the legislative department, and therefore in the exercise of the power thus committed to it the senate is supreme. An attempt by this court to direct or control the legislature, or either house thereof, in the exercise of the power, would be an attempt to exercise legislative functions, which it is expressly forbidden to do." ( Id. , at pp. 606-607.)

It may come as news to the voters of America that their Courts are powerles to "revise even the most arbitrary and unfair action of the legislative department…." The Court could have (as it was requested to do) assessed the Constitutionality of the premature action by the House given Roudebush v. Hartke, a US Supreme Court case stating that states have the right to perform the count, so therefore they have the right to perform a recount as well. But here again, the early swearing in was the defendants end-around this US Supreme Court case, as well as its end around democracy, the San Diego Superior Court, the rights of the contestants, and the requirement that all parts of the Constitution be upheld, not just Art. I, sec. 5.

Whether or not an appeal from this particular case is the vehicle, the contestants will fight on harder than ever before, because it is now clear that there are powerful forces in our country willing to exercise raw power to terminate elections.

Given the undeniable nature of the power grab that took place in San Diego's 50th Congressional District, the entire nature of the debate about the question of whether any elections officials might ever take advantage of less open methods of modifying or terminating election results via the opportunity of secret vote counting provided by electronic voting machines seems clearer than ever before. Unless the people reassert their right, consistent with the 92% result in the recent Zogby poll, to supervise elections and obtain information regarding them, democracy itself will be lost.


Posted by Dave Berman - 8:40 AM | Permalink
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