Metropolitan News-Enterprise


Tuesday, October 26, 2010


Page 1


Court Throws Out ‘Birther’ Challenge to Obama’s Election


By STEVEN M. ELLIS, Staff Writer


The Third District Court of Appeal yesterday threw out a lawsuit by so-called “birthers” who claim that President Barack Obama is not a natural born citizen and is ineligible to hold office.

The court ruled that California law does not impose a ministerial duty on the secretary of state or members of the Electoral College to verify a presidential candidate’s eligibility.

Retired Presiding Justice Arthur G. Scotland, sitting by assignment, wrote for the panel:

“Any investigation of eligibility is best left to each party, which presumably will conduct the appropriate background check or risk that its nominee’s election will be derailed by an objection in Congress, which is authorized to entertain and resolve the validity of objections following the submission of the electoral votes.”

A judge in Sacramento previously rejected arguments by conservative activists Alan Keyes, Wiley S. Drake Sr. and Markham Robinson that there was “a triable issue of material fact as to which branch of government, and what office within that branch, has the duty to ensure that all candidates on a California ballot meet the eligibility requirements to hold office.”

Third Party

Keyes is a former diplomat and perennial candidate who was joined on the ticket in 2008 in his third-party bid for the presidency by Drake, a Southern Baptist minister from Buena Park who has drawn controversy for openly praying for Obama’s death. Markham is a Vacaville software firm owner who has been involved in conservative third party politics for a number of years.

The three sued Obama, Vice President Joe Biden, California’s 55 presidential electors from 2008 and Secretary of State Debra Bowen days after Obama’s election in November 2008. They sought to bar Bowen from certifying the names of the electors until Obama produced documentary proof that he was qualified to serve as president, and to impose a similar requirement in future elections.

The defendants demurred, arguing that there was no duty by candidates to provide or by the secretary of state to demand detailed proof of qualifications. They also argued that federal law governed the issue, and that any objection to a candidate’s qualifications needed to be lodged before Congress.

Issue Moot

Sacramento Superior Court Judge Michael P. Kenny sustained the demurrers, and he found no duty on the part of the electors, except to meet and cast their votes for their party’s nominee in the manner required by the Constitution. He determined that the case was moot with respect to the 2008 election because the Electoral College had voted and Obama had been inaugurated, and that it was unripe as to future elections because it dealt with hypothetical and speculative future events.

Kenny also opined that the appropriate procedure to challenge a candidate’s qualifications was before Congress, which meets in December following a presidential election to canvass the vote of the electors from the various states. The judge commented that the plaintiffs’ “belief in the importance of their arguments is not sufficient to confer jurisdiction upon this Court.”

On appeal, Scotland agreed, rejecting the plaintiffs’ arguments that the secretary of state’s authority to remove candidates from the ballot if they did not meet constitutional qualifications conversely imposed a duty to investigate candidates’ qualifications and remove the person from the ballot if the qualifications were found lacking.

He explained:

“[T]he presidential nominating process is not subject to each of the 50 states’ election officials independently deciding whether a presidential nominee is qualified, as this could lead to chaotic results. Were the courts of 50 states at liberty to issue injunctions restricting certification of duly-elected presidential electors, the result could be conflicting rulings and delayed transition of power in derogation of statutory and constitutional deadlines.”

Justices Rick Sims and Ronald B. Robie joined Scotland in his opinion.

Representatives of the Secretary of State’s Office could not be reached for comment, but plaintiff’s counsel, Ramona attorney Gary Kreep of the non-profit public interest group U.S. Justice Foundation, told the MetNews that elections officials “take candidates off the ballot all of the time, and to say that is improper flies in the face of California history.”

Kreep said he would be consulting with his clients on whether to seek review, noting that a decision would need to be made within 10 days.

The case is Keyes v. Bowen, C062321.


Copyright 2010, Metropolitan News Company