Disgruntled voters seeking an invalidation or recount of the June election between Rep. Brian Bilbray and Francine Busby will have to wait a few more days to find out if a state court will hear their case.

Superior Court Judge Yuri Hoffman said today that he’ll rule Tuesday whether he has the authority to hear their case.

The suit, filed on behalf of two voters against Bilbray and Mikel Haas, the San Diego County registrar of voters, alleges that voting machines – some of which were taken home by poll workers in the days before the election – might have been tampered with. Moreover, it alleges that Haas “deliberately concealed and frustrated the ability of the public to determine whether or not fraud occurred,” by restricting the public’s ability to examine records related to the election.

David King, Bilbray’s attorney, conceded that the judge could order a recall but argued that the state court lacked the jurisdiction to unseat a member of Congress. Under the Federal Contested Elections Act, King said, the plaintiffs should have filed a complaint with the House Administration Committee, which could have considered the matter.

James Chapin, Haas’ attorney, noted that his client had been prepared to perform a recount at the plaintiffs request but never received a required deposit. Chapin also argued that the court has no jurisdiction over a congressional election.

“There’s not a single case in the history of the United States in which a judge has ruled on a congressional election,” Chapin said.

Paul Lehto, the attorney for the plaintiffs, said the court may not be able to officially remove a sitting member of Congress but it had the ability to review the vote count and certification of the election as part of the system of checks and balances established by the nation’s founders. He said the judge should help the public seek the truth and let Congress deal with the repercussions.

“The defendants don’t want us to look,” Lehto said. “How can we maintain the integrity of our elections if we can’t look?”

King also questioned why of the hundreds of other candidates and issues on the June ballot, Bilbray was the only one named in the suit.

If there was a genuine concern with the county’s vote counting system, why are they singling out the only candidate that can’t be heard by this court, King asked. Judge Hoffman asked Lehto a similar question

Lehto responded that Bilbray was named because the June election was close enough that an error in the vote count could have impacted the outcome, some absentee precincts reported turnouts that were thousands of percentage points higher than the total number of registered voters in those precincts and his clients felt the race was the most important on the June ballot.


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