This theoretical possibility became very real earlier this week, when a San Diego judge threw out a recount motion in the Francine Busby-Brian Bilbray race in California's 50th congressional district to fill the seat left vacant by Duke Cunningham, who left for a seat in the big house. (They face off against each other again in November.) You'll recall that Busby lost a close race and was criticized by some in the left blogosphere for having run too centrist a race, for making an issue of competence rather than ideology in the heavily Republican district. But indications of funny business began to appear -- things like voting machines taken home by Republican volunteers, etc. -- and a recount challenge was mounted independently of Busby, who didn't want to be portrayed as a sore loser with another election coming up shortly.
It' show the challenge was thrown out that was the bombshell -- one that did not get nearly the media attention it deserved. Turns out that Bilbray flew to Washington and was sworn into the House even before the vote was certified, which seemed odd at the time. Now we know why. Basically, the judge threw the case out on constitutional grounds. He said he had no jurisdiction because Bilbray had already been sworn in and the Constitution gives each house of Congress jurisdiction over the qualifications of their members. (Article 1, Section 5.)
This is certainly not how Article 1, Section 5 has been interpreted in the past. Is this just a rogue judge going off on some tangent of his own? Or is it part of a carefully orchestrated plan to use friendly courts to back up flawed election procedures and Diebold voting machines in close election?
Almost sounds paranoid to even think such a thing. But, hey, look who's in the White House and how he got there. And it seems a hell of a lot more plausible in light of another court decision highlighted today in The BRAD BLOG, which has done a great job of following this story from the beginning.
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.This is totally crazy. If this decision is allowed to stand, it would clearly pave the way for all sorts of political judge-shopping by the Republicans this fall, cynically distorting the Constitution and using it as a shield.
The judge threw out the case, not on a finding that the practices were not illegal but on a constitutional basis. The judge found that he had no jurisdiction, in part, according to Article 1, Section 5 of the US Constitution.
The pertinent part of Article 1, Section 5 says: "Each House shall be the judge of the elections, returns and qualifications of its own members,..." Note the phrase "of its own members".
We learned from Busby-Bilbray that the California Secretary of State's staff almost fell over themselves getting a memo to Denny Hastert to tell him that Bilbray won the election even though the certification of that election, and the final and legal naming of the winner of the election, was days away. That directly led to Bilbray being sworn in and becoming a member or the House of Representatives.
However, in Nevada we have two citizens running in the GOP Congressional primary. Neither of them is a member of congress now. So how, and why, did Article 1, Section 5 of the US Constitution come into play? How can anyone read the Constitution and decide that the people's votes don't matter, the Legislative Branch will make the decision for us?
Are Democrats going to wake up and put a defense in place? Are they going to talk about this possibility as a real threat before the election, so they don't just seem to be whining losers after the fact? Or is this another issue the national Beltway Democrats intend to tiptoe around?
We can't allow that to happen.