Judge throws out 50th District election lawsuit
By: WILLIAM FINN BENNETT - Staff Writer | ∞
SAN DIEGO ---- The results of the 50th Congressional District special election runoff are a federal issue, not a state one, a Superior Court judge said Tuesday afternoon in dismissing a lawsuit that would have forced the county registrar of voters office to recount the ballots from the June election.
Voters Barbara Gail Jacobson and Lillian M. Ritt recently filed the lawsuit against the election's victor, Republican Brian Bilbray, and county Registrar of Voters Mikel Haas.
The plaintiffs, who earlier asked the registrar to conduct the recount, also asked in their lawsuit for Superior Court Judge Yuri Hofmann to determine a reasonable cost for the recount. Haas' office told them they would have to pay as much as $150,000 for the work involved in a hand recount of the votes.
The lawsuit centered on the election to pick a temporary replacement for the now-imprisoned Randy "Duke" Cunningham, the former Republican representative who pleaded guilty in November to taking more than $2.4 million in bribes. The district stretches from Escondido south to Del Mar and into parts of San Diego.
Just a few days after the election, the California secretary of state's office notified the office of Speaker of the House Dennis Hastert, R-Ill., that it was OK to seat Bilbray, based on an unofficial count showing Bilbray with a lead of about 5,000 votes over Democrat Francine Busby.
Hastert then swore in Bilbray as the new congressman, despite the fact that the election results had yet to be certified.
During the brief hearing, Judge Hofmann said the matter is one the U.S. House, not the state, must now address.
"Once the House asserts exclusive jurisdiction and selects a candidate, the court no longer has jurisdiction," Hofmann said.
Seattle attorney Paul Lehto said Republicans knew that once Bilbray had been sworn in, it would be highly unlikely that Busby or any other candidate would file a complaint with the House, since they wouldn't want to be perceived as sore losers. Lehto said the federal statute is wrong and should allow for any voter, not just candidates, to file such a protest.
In a brief phone interview Tuesday, Busby said that she was not aware of the federal statute that would have allowed her to file a protest with the House of Representatives.
But the judge's decision was wrong, she said.
"It's outrageous that this judge just said the state of California doesn't have jurisdiction over our own elections, over this election," Busby said. "What happened today should be of concern to all voters."
Neither Bilbray nor Haas could be reached for comment late Tuesday.
Jacobson has said that part of her reason for filing the lawsuit revolved around the fact that Haas allowed precinct workers to take voting machines home with them in the days leading up to the election. Hass has said the practice is common across the state as registrars scramble to have voting precincts up and running early each election day.
However, the plaintiffs and some experts on voting technology say allowing precinct workers to take the machines home is particularly fraught with risk because the machines are not only far from the public eye, but can easily be hacked into and the votes manipulated.
After the hearing, Bilbray attorney David King said that under federal statute once Bilbray was sworn in, any of the other candidates ---- Busby, Libertarian Paul King or Independent William Griffith ---- had 30 days to contest the validity of the speaker's action and force a recount.
"And no one did," King said.
Plaintiff Jacobson said she has not yet decided whether to appeal Hofmann's decision. Her attorney Lehto said that they have not given up on the struggle to curtail the use of the high-tech voting machines.
"Will the fight continue? Absolutely," Lehto said. "The question is: Is this really the right vehicle to take this all the way to the (U.S.) Supreme Court?"
Jacobson said that too much is at stake to stop fighting the use of machines such as the ones used in San Diego County and many jurisdictions across the nation.
"I look at this as an American issue, something that will benefit all people and all parties," said Jacobson, a registered Democrat.
-- Contact staff writer William Finn Bennett at (760) 740-5426, or wbennett@nctimes.com.
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John wrote on Aug 30, 2006 8:23 AM:Note now Ms. Busby lacks any knowledge of United States law or the U.S. Constitution. It is amazing that such an unqualified person even considers running for office. She just wishes things were so - amazing.
Ann wrote on Aug 30, 2006 11:01 AM:With thousands of young Americans giving up their lives in Iraq so that others may have the right to vote in free and fair elections, what a SAD IRONY it is that for those of us in California, that right has been taken away by our own government.
Tom wrote on Aug 30, 2006 12:22 PM:Well, the ruling last night (Tuesday, August 29th) went against the plaintiffs (the citizens) and the judge agreed that regardless of how Bilbrae got into his House seat (by hook or by crook), once he was inducted, the fraternity of the House of Representative RULES. All authority that the CA Secretary of State or the San Diego County Registrar of Voters may have had (or THOUGHT they had) to "finalize" the election results or to allow a hand-count or recount was nullified by the fact that House Speaker Dennis Hasart whisked Bilbrae to D.C. and inducted him - 17 days before the election was certified by the CA Secretary of State. We have approached the closest point to a fascist state that the U.S. has ever tread upon. The power of the people at the state and local level has been usurped by the Federal legislature utilizing an illegal installation into power, and then claiming that because the installation took place, it is "King's X" (how appropriate a term!) and we no longer can contest the illegal act. Great circular reasoning. It worked in Germany in 1939 too!
Dem wrote on Aug 30, 2006 4:19 PM:Dear John: did you know that the losers needed to file a complaint with the feds before it was reported in the news? Before you call others stupid consider that you might be called stupid in return. Vote for Democratic in November.
Cheeze Anyone? wrote on Aug 30, 2006 5:36 PM:Might go with the whine and waste of taxpayers money to a group that just wanted the taxpayers to pay for a recount they wanted for free in a race that was not really that close. And Ms Busby claims her liberals where not behind this pathetic reaching for press coverage.. any coverage. Busby is toast and even her own party concedes it to be true.
A Night at the Opera wrote on Aug 31, 2006 7:10 AM:Why is it when Dems lose, it is "fascism," but when Reps lose it is the "will of the people." Dems do themself no service throwing words like "fascist" around. The 50th congressional district had gone months without a voice in Congress by the time of the special election. Even after the vote was officially certified, the results had not changed. This is nothing more than sour grapes making the liberals look like petty children. If the Democratic party and their liberal backers want to be come to the table, and I think our country is missing something in their absence, they should start actinlkg like adults. If Busby had any chance before this, it is now gone all for naught.
James wrote on Aug 31, 2006 5:07 PM:How on earth can anyone claim that it is ok for the federal goverment to call the election, put one candidate in office, and remove the right of the state to re-count the vote? This is not a GOP vs Dem issue. It is a State vs Federal issue. Blaming it on one party or the other is just deflecting attention from what really matters: The Feds are stealing your States rights.
Patrick wrote on Sep 1, 2006 5:29 PM:Isn't there any law or rule in the House that says they cannot swear in a representative until the state certifies the election?
Jennifer wrote on Sep 2, 2006 11:01 PM:I do not live in the US but can clearly see what is happening there. The only party that has been granted recounts without question and without accusations of sour grapes are the Republicans. Funny I have heard of Republicans getting recounts quite often and democrats never start accusing them of sour grapes. Democrats do not try to shut down recounts. To my knowledge other than a gubernautal race the dems have had two recounts. One was in 2000 where the Supreme court stopped it. The next was a recount requested by the greens in Ohio which was rigged. There are now people serving jail time for rigging the Ohio recount. This ruling is leading you straight to dictatorship. After the next phoney electronic elections free speech on the net will be seriously curtailed and you will have no forum to stop these facists. Yes that is what they are. Bush stole your 2004 election which is obvious to people who still have a free press in other countries. I'll bet most of you don't even know that in Florida they have enacted a law that prevents ballots that have been counted by machine (easily hackable) from been re-counted by hand. What possible reason can there be for a law like this other than to pervert democtratic recounting of votes. And you do not know these things because your media is complicit with and scared of the big business interests behind the em erging Dictatorship.
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