Appeal Court Declines to Review Win by Sumner

A state appellate court Friday declined to review Bruce W. Sumner’s victory in the Democratic primary for Congress in the 40th District, upholding a judge who ruled that California courts lack authority to hear such contests to an election.

Congress is the exclusive judge of whether a member has been properly elected and therefore qualifies to serve, justices of the 4th District Court of Appeal decided.

“I’m just delighted that we can now put aside the question of who won the primary election and concentrate on the general election,” said Sumner, who faces Republican incumbent Robert E. Badham of Newport Beach in the Nov. 4 general election.

The decision leaves Art Hoffmann, a follower of political extremist Lyndon H. LaRouche Jr., two options: appeal to the state Supreme Court or the U.S. House of Representatives.

Lack of Remedy Cited

“The decision means there is no way to contest these elections results,” said Hoffmann’s attorney, Robert M. Levy. “Anyone who is defrauded out of winning a primary election for Congress or the U.S. Senate will no longer have any remedy whatsoever to challenge the outcome.”

Sumner, a write-in candidate, was declared the winner in the Democratic primary after a recount. Hoffmann, who claimed fraud in the recount, lost two separate challenges in Superior Court before appealing.

“What they conveniently overlook,” Sumner said, “is that during the recount process, each and every one of the 30,000 ballots was individually scrutinized.” If Hoffmann’s people “wanted to present evidence of fraud or ballot stuffing,” he said, “they should have done so at that time.” Sumner said Hoffmann presented no evidence of wrongdoing.

Levy said he was considering an appeal to the state Supreme Court or Congress.

The House of Representatives has in the past ruled on challenges to the qualifications of its members. But both Levy and Frank P. Barbaro, Sumner’s lawyer, agreed that Congress has never before accepted a challenge to a primary election.

Levy said his client is left in “a very sad situation. I’m scared that it will take a major scandal to make the state court realize its mistake.”

“The law was on our side,” Barbaro said. “The court was compelled to make this decision. It is the law.”

Barbaro said it is “not unlikely” that Hoffmann will try to persuade Congress to intervene.

Trotter the Author

“I certainly invite that because I understand Washington is beautiful this time of year,” Barbaro said. “I’d love to go back and take on Mr. LaRouche in front of Congress.”

The opinion was written by Justice John K. Trotter Jr. and joined in by Justices Thomas F. Crosby Jr. and Robert O. Staniforth.

Trotter defined the problem as determining the states’ proper role in congressional elections and their outcome.

The court found that routine procedures associated with the machinery of elections, such as a recount, may be conducted by states.

“A state may not, however, attempt to make a judicial determination of a candidate’s election or qualifications” in a congressional primary, Trotter wrote.

Under a 1969 law, Congress decided not to review contested primaries. But under the U.S. Constitution, Congress has exclusive jurisdiction to decide the outcome of contested elections for its own members, Trotter wrote.

“If a void exists as a result of Congress’s most recent amendments, it must be filled by Congress, not the states,” according to Trotter’s opinion.