Judge hears arguments in 50th District runoff

By: ERIN SCHULTZ - Staff Writer | Friday, August 25, 2006 9:49 PM PDT ∞

SAN DIEGO ---- County Registrar of Voters Mikel Haas and newly elected U.S. Rep. Brian Bilbray were in court Friday, fighting a lawsuit brought by two angry voters who want the results of the June 6 runoff thrown out.

The suit centers on the election to pick a temporary replacement for now-imprisoned Randy "Duke" Cunningham, the former Republican representative who pleaded guilty in November to taking more than $2.4 million in bribes in exchange for steering tens of millions of dollars in government contracts to local firms.

Republican Bilbray of Carlsbad received nearly half the votes, while Democrat Francine Busby of Encinitas garnered 45 percent. On June 13, Bilbray was sworn into office as the representative of the 50th Congressional District.

Filed on behalf of voters Barbara Gail Jacobson of San Diego and Lillian M. Ritt of Rancho Santa Fe, both of whom live in the district, the lawsuit maintains that the results cannot be trusted because poll workers took voting machines home with them before election day in violation of state guidelines. The suit asks that a court order 100 percent of ballots cast in the race be recounted by hand, and establish a reasonable cost for the recount.

The suit lists Haas and Bilbray as defendants.

A lawyer for Bilbray argued Friday that the lawsuit should be dismissed because the San Diego Superior Court, where the suit was filed, does not have jurisdiction over U.S. House or Senate election disputes.

"It's fundamentally wrong to be in state court over a House election dispute," San Diego attorney David King said after the hearing. King, who represents Bilbray, said he considers the lawsuit a political smear tactic from the plaintiffs, who are registered Democrats.

An attorney for Jacobson and Ritt said the defendants are hiding behind the congressional status of Bilbray, who took his seat in the House weeks before Haas certified the election. Attorney Paul Lehto contended Friday that Bilbray should never have been sworn into his seat so quickly ---- just seven days after the election ---- making his election a matter of state jurisdiction.

Bilbray's win was uncontested by Busby or other candidates. Though the registrar would not officially certify the results of the June 6 election until 16 days later, officials from the California secretary of state's office advised House officials before the swearing-in that the unofficial results were expected to stand. The district, which encompasses a swath of North County from Escondido southwest to Del Mar, had gone unrepresented since Cunningham pleaded guilty in November.

"Their argument was that the court had no power because it's a congressional issue; our argument is that this election was never certified," Lehto said.

Judge Yuri Hofman, who heard more than an hour of arguments Friday, is expected to rule Tuesday afternoon on the defendants' motion to dismiss the suit.

Bilbray has also filed a motion arguing that the lawsuit unconstitutionally targets Bilbray's right to hold office.

Hofman is scheduled to hear arguments on that motion Tuesday as well.

A county attorney for Haas could not be reached for comment Friday.

Contact staff writer Erin Schultz at (760) 739-6644 or eschultz@nctimes.com.

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