Brief filed re: Hastert's summary "election" of Brian Bilbray

From Paul Lehto:

Here are the last few paragraphs of our appellate brief just filed. A press release will be issued in the next 24 hours. This concerns the constitutionality of House Speaker Dennis Hastert’s action to swear in Republican Brian Bilbray to Congress only 7 days after the election, when a minimum of 12,500 ballots were still uncounted, the race was reported as only approximately 4,000 votes apart, and certification would not take place for more than two weeks. Despite these facts, the defendants argued that this premature swearing in deprived the state courts and everyone else of all power or jurisdiction to look into the election, an “exclusive jurisdiction” instead vesting in the House of Representatives alone. As argued below in our conclusion, there is an exclusive jurisdiction but it is far narrower than the defendants recognize.



The defendants’ arguments would literally end meaningful democratic elections for the House and the Senate by We the People, because it completely fails to respect the State’s constitutionally sanctioned jurisdiction and role in elections, which was violated by the early swearing-in, and instead portrays itself as an absolutely expanding power that knows no limits, rather than a narrowly circumscribed power as required by the Powell v McCormack case.

{In conclusion,} this case is not rendered moot or nonjusticiable or without jurisdiction by the seating or swearing-in of Brian Bilbray. Even if the premature swearing-in of Bilbray were a constitutionally permissible end-around of the requirement of elections every two years “by the People,” a sovereign state’s constitutionally sacred sovereignty doesn’t simply disappear upon the assertion of the House’s corollary power. Elections are a unique and particularly strong area of state’s rights, where they act as sister sovereigns, and federal legislation impacting that status can be struck down, rather than operating to preempt state law. Instead, Art. I, sec. 5 simply means that judicial-like decisions of the House concerning qualifications of its members are insulated from attack by courts, provided they stay safely within the narrow confines of section 5’s limits.

The Framers intended that elections be the primary instrument used by the people to protect themselves from oppressive government and the evils of absolute power. The construction of the defendants creates a rule so broad and expansive that elections are rendered completely irrelevant and meaningless except to the extent and only for so long as the House wishes that those elections continue, and it creates a form of absolute power that is abhorrent to our constitutional structure. The power to swear in a House member Constitutionally elected every two years “by the People” does not contain the absolute power to terminate elections or ignore them in favor of a simpler and more efficient swearing-in process. Indeed, sweeping dicta in a few cases aside, the law does not leave the states “without jurisdiction” at all, it just insulates the Qualifications Clause adjudications of the House against outside attack.

For these reasons, the decision of the San Diego Superior Court should be reversed, Jurisdiction should be found, and the case remanded with instructions to order an immediate recount and discovery of the bona fides of the June 6, 2006 special election.

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