From:BradBlog.com

Once again, the Republicans get away with voter fraud- for now. Wait 'til November.

DEMOCRACY DENIED: SAN DIEGO JUDGE DISMISSES BUSBY/BILBRAY ELECTION CONTEST ON JURISDICTIONAL GROUNDS!

Finds Rushed Swearing in of Presumed Winner Bilbray by U.S. House — Just 7 Days After Election and 16 Days Before Certification — Transferred Power to Decide Election Outcome to Congress

California Voters, Courts Left Powerless to Challenge Illegally Administered Election According to Ruling

Posted By Emily Levy On 29th August 2006 @ 16:37 In Busby/Bilbray, California | 26 Comments



A judge in the San Diego challenge to the Francine Busby/Brian Bilbray U.S. House Special Election in California's 50th Congressional District has found in favor of the defendants' motion to dismiss the case based on jurisdictional grounds, The BRAD BLOG [1] has learned.

We have covered the defendants' argument, that the swearing in of Bilbray — just seven days after the election and a full 16 days prior to certification by San Diego County — effectively transferred power to decide any election challenges from the California courts to the U.S. House of Representatives. Those arguments are discussed in detail in several previous BRAD BLOG [2] articles (here [3], here [4], here [5] and here [6].)

The defendants' attempts to force plaintiffs to cover the cost of attorneys fees (a so-called "SLAPP back" motion) was denied by Judge Yuri Hofmann based on the same jurisdicational arguments used to dismiss the case, according to the plaintiffs' attorney, Paul Lehto. Since the California court has no jurisdication to adjudicate an election contest for a California U.S. House election, it also has no jurisidiction to find against plaintiffs in the "SLAPP back" motion, says Lehto.

VelvetRevolution.us is now collecting donations [7] to help defray the cost of an appeal of this ruling.

We have extended EXCLUSIVE comments on the ruling from attorney Paul Lehto below.

Following Lehto's comments, Hofmann's ruling is posted in full…


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.

The following is Hofmann's ruling in full. Though it's labelled as "tentative," this is now, officially, the final ruling as of this afternoon, on the case…

Court decision

And the beat goes on,....

Yeah, that is disgusting, if the lawyer tries to demand a fee for filing in the wrong court he should be disbarred, if he wasn't charging a fee he probably should be disbarred anyhow.

(The stench of corruption from electronic voting and fraud in Elections stink in California - vmaus)

Permission to excerpt or reprint granted, with link to
http://www.blackboxvoting.org

See photos below - a couple of 54-year old women from Black Box Voting bought
$12 worth of tools and in four minutes penetrated the memory card seals,
removed, replaced the memory card, and sealed it all up again without leaving a
trace. This experiment shows that the seals do nothing whatever to protect
against access by insiders after testing, and the seals also are worthless in
jurisdictions like Washington, Florida, California, and many other locations
where voting machines are sent home with poll workers for days before the
election.

The Busby-Bilbray contest in San Diego now has proof that the optical scan
machines sent home with poll workers subjected the tamper-friendly memory cards
to an non-recoverable lapse in chain of custody. The recipe for tampering has
been on the Internet for over a year:
http://www.blackboxvoting.org/BBVreport.pdf

The photos below blow apart claims by elections officials that voting machine
"sleepovers" -- sending voting machines home with poll workers for days or weeks
prior to elections -- are secure because of seals over the memory card.

Two Black Box Voting studies in Leon County, Florida proved that election
results can be altered in such a way that the supervisor of elections cannot
detect the tampering. Not to worry, we were told by elections officials. The
memory cards are sealed inside the machines.

But then Black Box Voting purchased an optical scan machine and obtained
discarded voting machine seals from King County, Washington. Here's what we
found:

(photo)
http://www.blackboxvoting.org/accuvote-mem...-inside-nut.jpg

The cover can be removed without detection by removing five screws. Inside, all
that stands between a pollworker (or an insider at the warehouse or elections
office) and the open-for-business memory card is a washer which you can unscrew.

http://www.blackboxvoting.org/accuvote-mem...card-put-in.jpg

See the memory card: It is the item in the slot that says "this side up."
Diebold's first line of defense is a metal door that pivots down over the memory
card slot.

http://www.blackboxvoting.org/accuvote-mem...door-in-out.jpg

See how the door works: The hole in the right side of the door is over-large, so
you can move the right-side bolt in and out at will. Therefore, they seal the
right-side bolt.

http://www.blackboxvoting.org/accuvote-mem...ole-in-bolt.jpg

See the hole in the top of the right-side bolt: The plastic seal is threaded
through that.

http://www.blackboxvoting.org/accuvote-sealed.jpg

See the plastic seal: This plastic seal was used by King County. It had been
broken and discarded, so we used the high-tech method of putting an orange
rubber band on it to hold it together for this demo. The seal is pointless
anyway, as you'll soon see.

http://www.blackboxvoting.org/accuvote-screws.jpg

See the screws holding the Diebold AccuVote optical scan machine together: There
are five. We tried a Phillips-head screwdriver on the thing.

http://www.blackboxvoting.org/accuvote-unscrew-case.jpg

See the screws come out: What's inside?

http://www.blackboxvoting.org/accuvote-mem...rd-unfasten.jpg

See the left-side bolt. Can you remove it? We stuck a small Allen wrench into
the bolt.

http://www.blackboxvoting.org/accuvote-mem...-inside-nut.jpg

See that nut on the screw: (Red arrow) We got out a pair of pliers.

http://www.blackboxvoting.org/accuvote-rem...rycard-door.jpg

Is it possible that Diebold does not know this??? Grasp nut with pliers, twirl
Allen wrench and see what happens.

http://www.blackboxvoting.org/accuvote-mem...eal-cracked.jpg

See the bolt come off. But can you get the memory card out?

http://www.blackboxvoting.org/accuvote-mem...card-opened.jpg

See the metal door pivot to the right: Remove the memory card.

http://www.blackboxvoting.org/accuvote-memory-card-out.jpg

We then put it all back together without leaving a trace. Cost for materials:
$12. Time: 4 minutes to open, remove card, re-insert card and re-seal
everything.

San Diego, June 6 2006: Sent these voting machines home with poll workers for
sleepovers. They said the seal on the memory card bay made it secure.

STILL GOING HOME FOR SLEEPOVERS in King County, Washington: King County
elections officials told citizens on Aug. 29 2006 in a videotaped statement that
they are using the door and plastic tab seal as shown in these pictures, and
they are sending the voting machines home with poll workers for the September
primary election.

WHAT CAN YOU DO ABOUT IT:

Black Box Voting has prepared a Citizen's Tool Kit -- basically a brain dump of
the things that worked during our last three years in the field. It is organized
into modules, each only a few pages long, bullet points, easy to follow.

Two modules can help you address this issue in your area:
Media Module: http://www.blackboxvoting.org/toolkit-media.pdf (tips to get this
into the media in your location)
Adopt a public official module:
http://www.blackboxvoting.org/toolkit-adopt-an-official.pdf (tips to educate,
persuade, and hold public officials accountable)

--------------------------------------------------------------------------------
Full 20-Module Tool Kit is FREE: It is a Declaration of Independence for
Citizens. You can download it here: (Adobe Acrobate 7 or higher recommended)
http://www.blackboxvoting.org/toolkit.pdf

- It's time for you to recognize your own power.
- You don't need us.
- You don't have to find someone to follow.
- Pick any module. Pick a single action in it. See it to its completion.
- You've just opened the door to an unexpected evolution.

"Governments are instituted among men, deriving their just powers from the
consent of the governed." -– Declaration of Independence

* * * * *

Black Box Voting is a nonprofit, nonpartisan 501c(3) elections watchdog group
supported entirely by citizen donations. We refuse funds from any vendor or
vested interest.

To support Black Box Voting: click to http://www.blackboxvoting.org/donate.html
or send to:
Black Box Voting
330 SW 43rd St Suite K
PMB 547
Renton WA 98055

Time for a change! I know one Republican who has seen the light.

Don't trust the lowered gas prices. They will skyrocket after the Nov. elections.

KT

I think that it's more important to remind people about how much they have risen since the LAST November election