WoW- Look at this argument in Nevada - (Angle case using CA-50)

[rumpel]

Angle pleads case for new GOP primary in Nevada House race

CARSON CITY, Nev. State Assemblywoman Sharron Angle is trying to convince a judge that Election Day irregularities at polling places caused her to unfairly lose the Republican primary for Nevada's 2nd District congressional seat.

snip
Angle and a handful of voters are asking Carson District Judge Bill Maddox to order a new Republican primary. They are arguing that confusion at some polling places combined with dozens of election workers who failed to show up caused delays and disenfranchised voters.

snip
Heller's attorneys Robert Crowell and Jason Woodbury argue that Maddox lacks jurisdiction to even consider Angle's petition. They say the U-S Constitution gives the House of Representatives sole authority over House election controversies.

http://www.kesq.com/Global/story.asp?S=5356747&nav=9qrx

subsequently the judge denied the re-election

http://www.klastv.com/Global/story.asp?S=5357675&nav=168Y

[NVMojo]

1. she's a whack job extreme conservative ...and didn't attack about Sequoias

that her competitor, Dean Heller, the current SOS purchased before the 2004 election or the paperless Sequoias in Las Vegas that can't be used to verify individual votes. She's a loser all the way around.

[rumpel]

3. problem is the argument - the attack on the rights of the state and it's

people, as well as the judiciary - Congress is trumping the rights of the people - as it was argued in CA-50

this is at least one judge that did not relinquish that right to the House of Reps.

[JimDandy]

5. Maybe so

It's hard to sympathize with a losing candidate when they don't fight for or even support election integrity issues. But when such a candidate instigates legal actions that can affect EI issues, we may have to help anyway for the sake of our democracy.

Do you know any more specifics about this case and the circumstances behind it?

[rumpel]

6. I am on the court site but

it's far less informative than the San Diego web site

nothing posted after 8/21 cases - except upcoming ones

http://www.nvsupremecourt.us/index.php

on edit - maybe have to go lower court

[Awsi Dooger]

16. Very tiny percentage of Clark County in that district

I looked it up after the primary and only 63 precincts in Clark County are in district 2. That's among 1083 precincts in Clark County. So I doubt the paperless argument would have had much weight, especially if the judge wanted her to demonstrate she could have made up 400+ votes, and only about 2500 total votes were cast in the 63 Clark County precincts. The other counties use only the newer machines. I'm not even sure the older non-paper machines were used in those 63 precincts. You would think in a primary with less voters they would use only the newer machines.

Here's the Las Vegas Review Journal article today regarding the judge's ruling: http://www.reviewjournal.com/lvrj_home/2006/Sep-02-Sat-2006/news/9418204.html

BTW, thanks for reminding that Nevada technically uses Sequoias. I always call them Diebold since that's generally the catchall DU term for DREs, well at least on forums other than this one.

[JimDandy]

2. This was a PRIMARY. No one was seated by the House.

How could Heller's attorneys use Article 1 sec 5 in a primary election? Am I missing something?

[rumpel]

4. Hey - they're trying

watch, this is going to be the playbook of the GOP all over the country

[JimDandy]

7. It will be the playbook by whoever is in power.

Right now that's the GOP. To use that argument though, the case would have to involve a SEATED member of congress. Or, if Nevada has a similar clause in it's state constitution, as we do here in Utah, then they would need to be a seated member of the Nevada Legislature.

The judge couldn't have denied it based on that argument, so on what grounds was the case thrown out?

The biggest problem with that argument is that it would allow the party in control (GOP)to also control another party's right to have the candidate of their choice represent them in an election. Primaries are for that purpose. How could a judge allow the GOP, by way of the House, to decide who is the rightful winner in a primary, even if it was a Republican primary? To do so would just be a hop, skip, and a jump to then allow the GOP House to decide the winner in any Democratic Primary.

edited for spelling

[JimDandy]

8. Nevada does have such a clause in its Constitution.

Article 4 Legislative Department

Sec: 6. Power of houses to judge qualifications, elections and returns of members; selection of officers; rules of proceedings; punishment of members. Each House shall judge of the qualifications, elections and returns of its own members, choose its own officers (except the President of the Senate), determine the rules of its proceedings and may punish its members for disorderly conduct, and with the concurrence of two thirds of all the members elected, expel a member.

http://www.leg.state.nv.us/Const/NvConst.html#Art4

[OnTheOtherHand]

9. more info in this story

http://www.nevadaappeal.com/article/20060902/NEWS/109020079

thanks to news.google.com

"After a day-long hearing into allegations of malfeasance by Washoe Voter Registrar Dan Burk and his staff, Carson District Judge Bill Maddox ruled not only do the U.S. Constitution and Nevada law bar him from deciding a challenge of any race for the U.S. Senate or House of Representatives but that Angle's lawyer Joel Hansen failed to prove the errors in Washoe County were numerous and serious enough to warrant nullifying the vote."

Like Jim Dandy, I don't see at all how the U.S. Constitution bars a challenge to the outcome of a primary race -- but the judge's ruling on that point might make more sense if we could read it.

[rumpel]

11. my timing of this - you beat me :)

but this:

Citing Article 1, Section 5 of the U.S. Constitution, the 30-year-old Laxalt v. Cannon opinion from the Nevada Supreme Court and NRS 293.407, Maddox said, "This court does not have jurisdiction to hear this case."

but what is the definition of a "member" then? If I nominate myself and just run for election in my district - would that already make me a member?

[rumpel]

10. She lost on the re-election but they won on jurisdiction!

Judge says law bars him from ruling on congressional races

http://www.nevadaappeal.com/article/20060902/ELECTIONS/109020079

After a day-long hearing into allegations of malfeasance by Washoe Voter Registrar Dan Burk and his staff, Carson District Judge Bill Maddox ruled not only do the U.S. Constitution and Nevada law bar him from deciding a challenge of any race for the U.S. Senate or House of Representatives but that Angle's lawyer Joel Hansen failed to prove the errors in Washoe County were numerous and serious enough to warrant nullifying the vote.

this is bad - this is really bad

[rumpel]

12. to my own question US Constitution Article 1

Section 2. The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.

[JohnGideon]

13. Opinion: Is The Constitution Going To Be Used Against Democrats In Novembe

Is the right-wing trying out a new tool; the US Constitution?

Let me preface this with a statement. I am not an attorney. I'm just a retired "knuckle dragger" (marine machinist). While I'm not an academic I do have the ability to read something and know what it says especially when it is written in clear English. I've also got a bit more common sense than most academics because I've had to exercise it throughout my life.

Any reader of The BRAD BLOG is familiar with the court decision from San Diego County. Essentially the judge ruled that he did not have jurisdiction because Bilbray was already sworn in as a member of Congress and the US Constitution gives the Legislative Branch jurisdiction over elections of their members.

Today's Nevada Appeal has an article regarding a court challenge that stemmed from problems in the GOP primary election for Congress. That race between Dean Heller, present Secretary of State, and Sharron Angle, was closely contested and Ms. Angle filed the challenge based on what she thought to be possibly illegal practices in Washoe County.

<<snip>>
http://www.bradblog.com/?p=3372

[rumpel]

14. thanks for the link- they are twisting the Constitution

and I think - you are right - about setting precedents

it says in the report that Angle "thanked the judge for hearing the case"...

I am glad, I am not the only one - or prematurely raising alarm - here



I am going to add your article to livvy's ERD

[OnTheOtherHand]

15. I don't think constitutional rulings by district judges mean much

I have no way of knowing what anyone is planning for after the election -- but having a state district judge blow a ruling wouldn't be an especially great way to get started AFAICT. (Caveat: I don't know what the judge actually ruled except from the story.)

[JohnGideon]

19. Additional Information On The Blog

UPDATE: A bit of research has given us the following information:
The article on Nevada said:
"Citing Article 1, Section 5 of the U.S. Constitution, the 30-year-old Laxalt v. Cannon opinion from the Nevada Supreme Court and NRS 293.407, Maddox said, "This court does not have jurisdiction to hear this case." "

HOWEVER:
I looked up Laxalt V. Cannon. Here is what the Supreme Court said: "For the reasons expressed, we conclude that Art. I, 5, of the Constitution, does not prohibit Indiana from conducting a recount of the 1970 election ballots for United States Senator. Accordingly, the judgment of the District Court is reversed."

So, Carson District Judge Bill Maddox cited a Supreme Court ruling that OPPOSED his decision, and used it to justify his ruling.

In the Nevada Supreme Court's ruling, here is the discussion of the Nevada District Court's ruling (in Laxalt V. Cannon):

"First, the court found that in making judgments as to which ballots to <405 U.S. 15, 24> count, the recount commission would be judging the qualifications of a member of the Senate. It held this would be a usurpation of a power that only the Senate could exercise. Second, it found that the Indiana ballots and other election paraphernalia would be essential evidence that the Senate might need to consider in judging Hartke's qualifications. The court feared that the recount might endanger the integrity of those materials and increase the hazard of their accidental destruction. Thus, the court held that, even if the commission would not be usurping the Senate's exclusive power, it would be hindering the Senate's exercise of that power."

Here is the response of the Nevada Supreme Court:
"We cannot agree with the District Court on either ground. 20 Unless Congress acts, Art. I, 4, empowers the States to regulate the conduct of senatorial elections."

[rumpel]

21. aha!

that is quite interesting

more so, to find out whether it was an oversight of the judge or else...

[rumpel]

22. The judge

Judge Maddox was appointed by Governor Kenny Guinn (R)
http://uspolitics.einnews.com/news/kenny-guinn

http://gov.state.nv.us/pr/2000/8-21mddx.htm

and reversal on his ruling

http://www.firstamendmentcenter.org/news.aspx?id=11432

[autorank]

17. "Meet the New Boss" samd as the old boss. Heller employed Lapsley (below )

Election Nullification II: Speaker of House had Special Source for Election “Certification
”
California Assistant Secretary of State for Elections Tells House Clerk, it’s all good!
By Michael Collins
“Scoop” Independent News
Washington, DC

Link (click on Print icon for easy view of links) http://www.scoop.co.nz/stories/HL0608/S00338.htm

What would you think if you heard that a Member of Congress was sworn in prior to the official certification of his hotly contested and controversial election?

Would it matter to which political party the Member of Congress belonged?

On August 25, 2006, "Scoop" revealed that there was something very wrong with Brian Bilbray’s swearing in as a member of the U.S. House of Representatives. Republican Bilbray allegedly defeated Francine Busby in a close and controversial special election in California’s 50th Congressional District. There were immediate cries of foul and demands for both an investigation and a recount. The problems were well publicized before the swearing in.

Nevertheless, this sequence emerged:

June 6 - unofficial results announced with Bilbray over Busby by a few thousand votes, followed by immediate public protests;
June 13 - Speaker Hastert swears in Republican Bilbray on the House floor and Bilbray becomes a Member of Congress; and,
June 30, 2006 - 17 days after Bilbray was sworn in as a member of the House, Mikel Haas, Registrar of San Diego County, officially completed the audit of election results required for certification, and officially certifies the election of Bilbray over Busby based on 163,931 total votes.

The problem with the sequence is simple to spot. The swearing in of Bilbray occurred a full 17 days before the election became official as a result of the San Diego Registrar’s certification of results. The question raised in the previous article was, how could Speaker Hastert swear in Bilbray without notification that the election results were official? We have an answer.

Speaker Hastert’s Special Source on “Certification”

The swearing in ceremony for Republican Brian Bilbray, alleged winner of the California 50th District special election on June 6, 2006, was tucked in between actions to commend Canada for its renewed commitment to the war on terror. The Congressional Digest for that day contains a remarkable revelation; the source that the Speaker of the House used to justify the official induction of Bilbray.

Oath of Office--Fiftieth Congressional District of California: Representative-elect Brian P. Bilbray presented himself in the well of the House and was administered the Oath of Office by the Speaker. Earlier the Clerk of the House transmitted a facsimile copy of the unofficial returns of the Special Election held on June 6, 2006 from Ms. Susan Lapsley, Assistant Secretary of State for Elections, California Secretary of State Office, indicating that the Honorable Brian P. Bilbray was elected Representative in Congress for the Fiftieth Congressional District of California. Here (statement only) or here (full record) (see aricle in "Scoop" for links)

Bilbray, it would now seem, was not sworn in without forethought, as though there were no issues involved. Somehow, the Clerk of the U.S. House of Representatives received notification from Republican Bruce McPherson’s Assistant Secretary that Bilbray “was elected Representative in Congress.”

This may come as news to the legal team fighting the recount in San Diego Superior Court. They have asserted that the recount is irrelevant because Federal authority supersedes state authority as a result of the June 13th swearing in of Bilbray. This logic was confirmed in a letter to San Diego Superior Court by Paul Vonivich , counsel for the House Committee on Administration. In that letter, he acknowledges the sequence of events and asserts that the swearing in makes moot any recount based on superior federal authority in congressional elections.

Now we find out that that swearing in was based on the confirmation provided by a state government official. This strongly implies that the Congress actually recognized state authority to determine that the election outcome was official.

[rumpel]

18. my oh my, yes

Lapsley...Nevada

for those who missed:

on bradblog:

So who is Susan Lapsley, Assistant to the Secretary of State for Elections? She was previously Susan Bilyeu, previously Deputy Secretary of State in Nevada. Her husband, Rob Lapsley, was the former deputy SoS to Republican SoS of California, Bill Jones. According to an official involved with the California voting system certification process, when asked if he was surprised to hear her name connected with this story about Congress's intrusion into the Busby/Bilbray election,

"If anybody would tell them this, it would be her."

[JimDandy]

20. But this is the Constitution.

Does their giving up authority, once or twice, equal loss of constitutional authority forever? It seems to me to be a more weightier issue than, for instance, a trademark case where the courts have decided that a trademark owner who knows of an infringement, but doesn't tell the illegal user of the mark to cease and desist their use of it, can lose their right to sole use of the trademark.

If election results are their sole jurisdiction, then the U.S. House and Senate should be responsible for paying the costs of all congressional elections. And similarly, states that have this same clause in their state constitutions, should be forcing both houses of the legislature to dip into their budgets to pay for legislative elections, too.

That's just my not too serious rant to protest this jurisdictional situation where they have "all the power -- none of the problems."

[autorank]

23. That's their deal, authorize but don't appropriate. Hassel but don't help

Reprehensible folks, these "representatives."

[GuvWurld]

30. But what is the Constitution?

How many times must the Constitution be violated, waived, ignored, perverted, molested, and otherwise crammed up our collective arses before we too conclude that it is just a piece of paper?

We are fools to depend on it any longer. It is not protecting us while it is being wielded against us.

Nobody will doubt that I stand squarely with Land Shark and supported the approach he took in CA-50. Looking back at what happened, however, I conclude that in rough terms Paul argued the Declaration of Independence while the Court considered the Constitution.

I've been stuck on this for much of the past week and have a half finished essay I hope to post tonight. Meanwhile, consider, the Declaration of Independence and its Consent of the Governed argument is in fact a precedent that predates whatever Constitutional point grants Congress authority to determine qualifications of members.

The Constitution is nullified by signing statements. Elections are nullified by Congress. The Courts perceive no means of citizens seeking redress. We are not a Free People. Are you all feeling why I always always always say the same thing?:

Peaceful revolution is necessary, NOW!

Our collective power is not to be taken away, only given by our Consent or resignation. We here are not resigned to accept this loss of self determination. We do not consent to a social compact that can only harm us and never protect us, for that is no compact (Constitution) at all! As the Founders before us, we can see that we must break with this distorted relationship we have with our government. And to do it all, we must "recur to principles," as Land Shark has said. Like Dorothy in the Wizard of Oz, we've had the answer all along. It is this country's original precedent.

[Land Shark]

34. "Recurring to fundamental principles"

or similar phrase is found in numerous state constitutions. I mentioned in my oral argument the same. It goes along the lines of

A frequent recurrence to fundamental principles is necessary to the preservation of liberty and free government....

The Declaration of Independence is what i argued? Well, I'll take that as a high compliment on one level but lawyers are taught it ain't the law per se (and I did argue the Constitution quite a lot).

But then again, the Declaration of Independence does come into the law in some places by reference. I'll leave that as a mystery trivia question that becomes more relevant all the time.

[eomer]

24. In 2003 House Republicans said their authority does not include primaries

Here's an excerpt from the House Report DISMISSING THE ELECTION CONTEST AGAINST ED CASE, July 15, 2003 (emphasis mine):

ANALYSIS

By its very terms, the FCEA does not contemplate considering Notices of Contest that are based on the conduct of primary elections. The statute defines `election' as `an official general or special election to choose a Representative in * * * Congress, but that term does not include a primary election, or a caucus or convention of a political party.' 11

{Footnote} Thus, as a general rule, general or special elections may be contested using the procedures set forth in the FCEA, while primary elections may not.

{Footnote 11: 2 U.S.C. Sec. 381(1) (emphasis added).}

The locus of the contestant's Notice of Contest centers not on the January 4, 2003 special election but on the conduct of the September 21, 2002 Democratic Primary. Though he alleges that the special election was rigged, he offers no proof of vote tampering, nor does he argue that he would have won the special election had there been no alleged vote rigging. Rather, the contestant's claim to why he is entitled to the Second Congressional seat is based chiefly on his argument that Representative Mink should have been disqualified as a primary candidate, that he should have been declared the Democratic nominee by default, and that as the nominee, he would have been the inevitable general election winner.

Consequently, the Committee concludes that the basis for the contestant's Notice of Contest falls outside the scope of the FCEA. For this reason, the Committee holds that the contestant's arguments regarding the conduct of the Democratic Primary election in Hawaii do not constitute grounds sufficient to change the result of the election and, therefore, recommends that this election contest be dismissed.

http://thomas.loc.gov/cgi-bin/cpquery/T?&report=hr207&dbname=108&

[JimDandy]

25. Good find.

That this agrees with what seemed like common sense to us, is troublesome though, because the judge thought otherwise.

[eomer]

28. It seems like this judge is just mistaken.

Hopefully that's how it will work out.

Until then we are left with no one acknowledging jurisdiction so it is a situation that's got to change one way or another. Either state law or House authority has got to kick in or else it is an area where law does not apply (sort of like Ohio, in other words).

[Wilms]

26. eomer, I appreciate your Labor this weekend.

Though I admit, this recent post of yours just gave my brain whiplash!

Thanks, nevertheless. :blush:

[eomer]

27. Well, thanks, but quite a small deal compared to the daily Labors

so many in this forum contribute day after day. Including yourself, so, thanks to you for all your efforts.

The recent developments sparked my curiosity and I enjoy looking for, and sometimes finding, answers.

If you can convince my wife, though, that I am Laboring then I would appreciate it. She thinks I'm just "blogging" again. Little does she know that we are saving the world from evil forces (she still hasn't spotted the Spiderman costume in the back of my closet).

Cheers,
eomer

[Bill Bored]

32. Tell me about it! nt

[Land Shark]

29. PRECEDENT: It's not precedent unless it is a PUBLISHED decision

there would be due process notice problems if unpublished decisions had precedential authority behind them.

In state courts, generally on appellate decisions get published.

In federal courts, appellate and a few district court (trial level) decisions get published.

So, neither this case nor the 50th Congressional District in California constitute actual precedents. They do however tend to show a trend in the use of certain arguments, and lawyers (while not being able to cite them) may be infludenced informally if opposing counsel sends over a copy or they hear about it, etc.

[GuvWurld]

31. Kick (eom)

[emlev]

33. Susan Lapsley's name comes up in both CA and NV

In California she is the person in the Secretary of State's office who faxed the preliminary results of the CA-50 election to Congress. She's only worked in the CA SoS office since approximately January 2006.

Before she worked in the SoS office in CA, she was assistant to Nevada SoS Heller. Heller is now running for Congress, and is the candidate who claims to have won the contested race in Nevada.