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More on the Bilbray decision

Paul Lehto writes exclusively for Votelaw.com: I was lead counsel in this case along with Ken Simpkins assisting in this unpublished 2-1 decision, and at trial and on appeal we expressly argued and pointed to the various and severable kinds of relief available in an election contest, and we expressly waived one small part of that relief, that of an order directing Congress to unseat Bilbray -- since that would be unconstitutional for any Court to do under Art. I, sec. 5.

But despite carving this out of the case, many other issues remain, like vindicating the strong public policy in accuracy in elections, and the many other issues that could be summed up by saying: THE TRUTH IN ELECTIONS STILL MATTERS. The voters still have a California constitutional right to have their votes counted properly and tabulated properly, and time has not run out to have a look at vindicating those rights. The Court of Appeals ignored them, however, thus ignoring the voters.

Also, the question of legitimacy and accuracy are ones that are relevant even now, were we to discover evidence about this or even some ancient election. Moreover, without substantive review, in any case the Registrar of Voters is going to repeat most of the same mistakes in all of future elections and indeed already has in the November 2006 election.

One fact that this article and the North County Times omits but that the opinion references is that fully 68,500 votes were still uncounted according to the Congressional Record for the date of the premature swearing in, according to the letter therein sent by the California Secretary of State. (the number may be somewhat less because it was dropping daily, but still substantial numbers of votes had not been counted even once at the time Bilbray was sworn in, in a close race separated by around 4000 votes in final numbers but there were more suspicious absentee ballots than that margin, alone, without discussing other problems.)

Also, the court dismissed on mootness grounds in a 2-1 opinion EVEN THOUGH the defendant appellee Bilbray did not brief or argue mootness, even at oral argument on January 8, 2007, which was after the close of the Congressional term that allegedly created the mootness. This makes sense that Bilbray failed to argue mootness because there are many other issues at stake besides the question of who sits in the seat of power, indeed the lawsuit for the election contest explicitly waived the right to an order directing Congress to unseat anybody.

So, the only circumstance that occurred through the passage of time (expiration of the term and thus the availability of a seat-change) was the same thing that was waived all along (namely that of seat-change, because Constitutionally not available). If the court's opinion is correct, then, the suit was moot on the day it was filed because it could not directly change the seat in Congress. This would mean that all citizen election contests are barred on the day they are filed because they don’t DIRECTLY change who sits in Congress. But states still have an independent right to police their own election machinery, and existing judicial opinions already contemplate the procedure of a state court proceeding to judgment and then directly forwarding its decision to the House, which can adopt it or else conduct its own recount. In this sense, what might be considered an "advisory" opinion is expressly affirmed in the context of elections where state sovereignty is considered strong along with federal sovereignty... The Congress can still learn and act by not prematurely swearing in candidates in the future because it terminates the democratic process prematurely, changes the rules and expectations after the election compared to before, and upsets the balance of powers between state and federal jurisdictions in what is sometimes indelicately called a “power grab.”

The CA Constitution contains an express provision providing CA citizens with the right to have their votes counted properly and tabulated properly. This was entirely ignored in the opinion.

The Court, which implicitly treats congressional seats NOT as being from, by and for We the People, but as being the personal property of candidates whose concession is often considered of great weight if not dispositive, when really it has little or no weight from the standpoint of democracy. The 50th Congressional seat is owned by the People of the 50th, and only subletted to the legitimate winner of that seat, and then only for two years. The landlord of the 50th Seat, as it were, should not be treated this way.

What this UNPUBLISHED 2-1 opinion seems to allow, as a secondary effect, is a state of affairs where short term special elections are free for the stealing or for swearing-in abuses -- because surely the clock will run out either by the first or second appeal in a short term.

In fact, we asked for expedited appeal in September, but the Court of Appeals only offered December dates and later January dates, both of which would result in opinions being issued when the case was "moot." In effect, the Court's own scheduling decision resulted in the mootness opinion. If abortion cases were decided this same way, we'd never have a decision on an abortion case either, because that right lasts a maximum of 6 months, just like June 6 to early January special term is just over 6 months...

We hoped to be more enlightened about the Interplay of Art I, esc 4 and Art. I sec. 5 of the federal Constitution, but that will have to wait for the next court that hears this issue, either in this case or the several other places around the country where this argument has been used to terminate recounts or vote counts in mid-stream (by Congress) just as the US Supreme Court issued a stay in 200 that terminated Florida recounts in mid-stream. Issues of election termination have a profound public interest attached to them and should not be the subject of failures to decide via “mootness” opinions.

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