Busby/Bilbray CA50 Appeal; Court Scheduling Decision Makes Case MOOT

[Land Shark]

BradBlog's intro sentence pretty much says it all though: "Need more evidence for why election results need to be right on Election Night? Look no further than the now-infamous CA50 Busby/Bilbray Special U.S. House Election to replace Randy "Duke" Cunningham last June"
http://www.bradblog.com/?p=4313

THe "congressman" Bilbray was sworn in only 7 days after the election where the court found in its opinion that up to 68,500 votes were still uncounted on the FIRST count, but the term having now expired in early January 2007, the Court considered the entire case moot.

THe truth of the election through recount and discovery was apparently deemed legally immaterial by the Court if there was no longer an aristocratic seat of power in Congress to go with it. (Ironically, changing the hands of the House seat has always defined as outside the scope of this lawsuit, yet when the House seat changed by itself, the Court of appeals seems to think it renders the entire case moot!) A case is moot only if every part of it is incapable of getting any effective relief. Clearly, we can still have a recount, which does not need to lead to an ouster of a Congressperson....

FIRST COUNTS FAST, AUDITS / RECOUNTS MAYBE NEVER: In a couple months it will be a year and we are still trying to get our hands on our first set of paper ballots from the opscan election of June 6, 2006 for Congress in California's 50th Congressional District. This illustrates the huge risks of relying on audits or recounts to save the day in a disputed election. The officials are highly likely to stall, drag their feet and otherwise stonewall recounts and audits through pricing things high, doing audits nonrandomly, and even if they DO the audits it's like Enron auditing Enron when the government audits itself. See generally http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x459022

COURT CAUSED DELAYS. In September we asked for expedited briefing and hearing. We got expedited breifing and then we asked for a hearing in early October. The Court refused and set it for December 13, 2006. At that point, given the few weeks to draft and opinion, the appellate court's slowness guaranteed its own later holding of mootness would be available... Still, the mootness argument is weak, as discussed more in bradblog and it's links, and ironically this sets things up even a little better for our chances with the CA Supreme Court.

A new litigation organization PSEPHOS-US.COM will be supporting the fundraising for the appeal. (website pending) In the mean time, if anyone would like to make a contribution toward Supreme Court of California appeal, please contact the below via email for payment options.

---Paul Lehto
lehtolawyer at gmail.com
Ken Simpkins
ksimpkins1 at sbcglobal.net

As explained in more detail a couple days ago on my piece on taking a voting rights approach to voting rights, the first counts are where it's all at, and all congressional bills preserve the first counts as secret counts. Recounts and audits are risky, costly, conflicted, haxardous and slow in an environment that has quick statutes of limitation, slow or lazy courts, and few effective remedies to timely force officials to do the right thing. (see link above)

[shance]

1. Ive been saying for some time now that recounts are a joke.

Seems we need to maintain less of the cautious conformity and obtain more of the courage to say what is known at the time.

Plenty of people have known this for a while but have been too apprehensive, like in calling out the optical scanners to tell the truth. That recounts as well as optical scanners are both licenses for yet more voter fraud, and we need to confront them both with the same conviction we have with every other element of election fraud.

It all contributes to the same absence of democracy and absence of elected officials that we elected to be there.

[OnTheOtherHand]

5. huh?

How is it "known" that "recounts as well as optical scanners are both licenses for yet more voter fraud"?

I was going to let this pass, but since you cautioned us against cautious conformity....

In Washington in 2004, recounts reversed the outcome of the governor's race. The Republicans might attribute that reversal to "voter fraud," but I don't know of any evidence that they're right.

New Hampshire in 2004 recounted several towns that used optical scanners, and the recounts came out close to the original results. But in Pottawattamie County last year, a hand recount showed that the scanners had been misprogrammed. A good audit protocol should catch that kind of problem at least two different ways.

[shance]

11. Huh is right OTOH**** Bring us some more sterling examples of recounts that have been successful.

For every Washington "success story" I can give you five disasters.

Please shower us with the successes of the re-count procedure.

We'd love to see them.

[OnTheOtherHand]

12. are you serious?

This seems to be some sort of same-planet-different-worlds thing.

Go ahead, step up: give me five disastrous recounts, and then it will be my turn again.

ON EDIT: Actually, I guess I should have asked for fifteen, since I gave three examples of (as far as I know) successful recounts -- different kinds of recounts initiated in different ways under different circumstances. Under mandatory audit protocols, successful partial recounts would become routine. I'm not sure why some people oppose that outcome so vigorously.

[Land Shark]

13. THere are only a handful of examples of recounts working

i was there for one of them: Washington state's gubernatorial race. The Democrat pulled ahead in the hand recount only and kept the tiny lead in the election contest. But Republicans don't think that recount worked. FIRST COUNTS are the ones that have to be right.

Recounts only detect a slice of potential error, namely what you might call "counting error" anyway. If the error occurred BEFORE the end of the first count (again, emphasizing the importance of the first count) such as with a stuffed ballot box, you can recount that as many times as you want and still get a totally fraudulent stuffed result.

It is surprising how many people, who should know better, blindly point to recounts and imply that when they do occur and even if they occur perfectly, that they somehow settle the question of whether the election was accurate or not. Far from it.

[OnTheOtherHand]

14. caution: moving goalposts

If the ballot boxes can be stuffed, then there can be no assurance that the first count is right, either. This is no argument against optical scanning with rigorous random audits.

Maybe Land Shark should stop inventing arguments to "blindly" attribute to other people. Just a thought.

[Land Shark]

15. Thanks for saying so. The recount won't detect stuffed ballot boxes in either paper or electronic

but with electronic, all of our transparency and public involvement (essentially) is coming in at the recount and audit level. No system is perfect but you sure don't want an electronic one that gives one person great power to move a lot of votes, and your primary public checks and balances don't start to get triggered (recounts and audits) until the horse is WELL out of the barn and gone and we have our apparent winner and our socalled "sore loser"

[robinlynne]

2. That is terrible news. It is probably a stupid question, but is there nothing

Debra Bowen can do?

[Land Shark]

8. Right now, in general beyond this, Bowen is saying they have investigatory

but no enforcement powers, so there's little they can do. Investigation, though, it seems to me is valuable even if there is no enforcement. There is the court of public opinion and the public's right to know.

[rumpel]

3. you may want to write a public comment

for Bowen to see...

The opinion sounded like they were saying that Bilbray was already sworn in, and had also in fact served the remainder of the Cunnigham seat - it is moot - and beyond the courts jurisdiction?

incredible...the voters lost their right to have their vote counted because Hastert has sworn him in.

am I reading it correctly, LS?

[Land Shark]

6. yeah that's pretty much correct

I was there during the one hand recount that worked (WA state) but every other recount has been problematic or nonexistant. Shance (above) is basically right. YOU can not bet the integrity of the system on audits or recounts that are partially or totally influenced or controlled by the government folks who put out the first numbers.

[eridani]

4. Solution, make audits MANDATORY.

They've just done it in Minnesota--it can be done elsewhere.

[bleever]

7. K&R. nt

[fooj]

9. Did Lam serve as the Federal Attorney for CA50?

[Land Shark]

10. yes her office prosecuted Cunningham as I recall, the former CA50 congressman