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Adjudication in South Carolina?

Is the “First in the South Primary” and an eligibility statute the perfect storm for a Ted Cruz legal challenge?

SCI think that any presidential election challenge brought after the US general election is beyond the jurisdiction of the courts. By then it’s a political question, and the Electoral College and Congress are the branches of government assigned the responsibility for choosing of the next president under the Constitution.

The US Constitution and statutes grant considerable control over the conduct of elections to the states, and they may impose rules on potential candidates, including oaths affirming eligibility, viability, fees, and forms. States have excluded potential presidential candidates for eligibility, recently Peta Lindsay in California on account of age, but I don’t recall that the Supreme Court has ever ruled on a case where a presidential candidate was refused ballot position by a state for eligibility reasons. Should a state refuse a candidate’s place on its presidential primary ballot, there is a ready-made scenario for that challenger to sue, but it seems very unlikely that any state would do that based on the birther “two citizen parent and born in the country” theory, given the extreme minority opinion status of that opinion.

Some state courts have ruled (e.g. Florida and Georgia) that presidential primaries are party elections and that the state has no say in who goes on the ballot, once certified by the party, so suing the state is no good. The party itself has discretion, for example, the South Carolina Democratic Party refused to register Stephen Colbert in 2012 because they said he was not a viable national candidate–there was no lawsuit.

So it seems to me that IF there is any chance for a successful lawsuit to adjudicate candidate eligibility, a state party or a national party would have to be the defendant, and the challenger would most likely have to be a credible opposition candidate in order to have standing. The case could either be brought before a primary election in the case of a state party defendant, or between the primaries and the national convention in the case of a national party defendant. In any case, the challenge must be brought early to have an effect. An adverse ruling to a candidate would have tremendous influence, generating precedent and national attention, and what better venue than South Carolina’s “First in the South Primary” to be held February 20, 2016, for that challenge?

Candidates that have filed (and not yet withdrawn) in South Carolina:

  • Marco Rubio
  • Jeb Bush
  • John Kasich
  • Ben Carson
  • Ted Cruz
  • Lindsey Graham
  • Rick Santorum
  • Bobby Jindal
  • Mike Huckabee
  • Carly Fiorina
  • Donald Trump
  • Rand Paul
  • Jim Gilmore
  • Chris Christie
  • George Pataki

The law in South Carolina on presidential preference primaries requires that the state parties certify to the SC Election Commission that the candidates are eligible under the Constitution. In particular Section 7-11-20(B)(2) includes:

Political parties must verify the qualifications of candidates prior to certifying to the State Election Commission the names of candidates to be placed on primary ballots. The written certification required by this section must contain a statement that each certified candidate meets, or will meet by the time of the general election, or as otherwise required by law, the qualifications in the United States Constitution, statutory law, and party rules to participate in the presidential preference primary for which he has filed. Political parties must not certify any candidate who does not or will not by the time of the general election meet the qualifications in the United States Constitution, statutory law, and party rules for the presidential preference primary for which the candidate desires to file, and such candidate’s name must not be placed on a primary ballot.

So maybe candidate Donald Trump (or some have suggested John Kasich) could sue the South Carolina Republican Party to prevent the party from certifying Ted Cruz (or Rubio, Santorum or Jindal) to the Election Commission for the February 2016 presidential preference primary on the grounds that he is not eligible. If they do, they need to get busy. February is right around the corner.



Democratic congressman threatens Cruz eligibility lawsuit

Breitbart News reports that Florida Congressman Alan Grayson spoke yesterday (November 25, 2015) to Alan Colmes on his Fox News Radio program, and said:

photo of Rep. Alan Grayson the Constitution says natural-born Americans, so now we’re counting Canadians as natural born Americans? How does that work? I’m waiting for the moment that [Ted Cruz] gets the nomination and then I will file that beautiful lawsuit saying that he’s unqualified for the job because he’s ineligible…. Absolutely! Call me crazy but I think the president of America should be an American.

You’re crazy.

In July of 2014 Grayson told MSNBC that he didn’t think Cruz had a chance:

Since Ted Cruz is a Canadian, and our Constitution requires that an American win, I’m pretty sure that it’s not going to be Ted Cruz.

Deep blue liberal Grayson said that Cruz hadn’t even reached “anchor baby” status. In his characteristic shoot-from-the-hip style, he quipped:

In Cruz’s case, it is obvious what happened. The Canadians got pissed off at us for acid rain, so they gave us Ted Cruz.

In my opinion Grayson lacks standing to bring such a lawsuit.

Grayson is seeking the Republican Senate seat from Florida in 2016.


Obama’s conversion to Islam

It’s done with Photoshop

Here’s the first image I came across. It shows Obama holding a sign saying “Islam will dominate the world.”

Fake photo of Barack Obama holding pro-Islam sigh

It’s an obvious paste-up job. Note that the light comes from the left on the hands, but from the right on the face. Obama’s head has a white seam around it too. The facial image seems to be higher resolution than the hands.

Here’s the original.

Man holding pro-Islam sign

The next one has a bit better quality.

Photo of Obama dresses as Osama Bin Laden

But it is obviously derived with a little help from an original photo of Osama Bin Laden and a computer paint program.

photo of Osama bin Laden used to make fake Obama image

So that is how one converts Obama to Islam.


Running dogs

When I was a teenager my hobby was listening to shortwave radio. Some listeners collect postcards from radio stations they hear, called QSL cards. The listener would send the station a report of how good the reception was, and the station would acknowledge with a card.

One of my catches was Radio Peking (as it was known in those days) and they sent me a card. Only the card was not the only thing they sent. They sent me a Radio Peking calendar, a copy of Chairman Mao’s “Little Red Book,” and some pamphlets full of Chinese Communist propaganda. (Mom thought the FBI might come to see me.)


I wasn’t impressed by the propaganda—it was pretty naive stuff—but one thing stuck with me, the phrase “running dogs.” The Wikipedia defines it as:

… lackey or lapdog, an unprincipled person who helps or flatters other, more powerful and often evil people. It is derived from the eagerness with which a dog will respond when called by its owner, even for mere scraps.

Carl Gallups photoChief among the birther running dogs is Carl Gallups, who cherishes every phone call, every word from Mike Zullo, basking in the reflected light of the “official law enforcement investigation, and validating his importance through the scraps of “information” shared with him. Gallups was a bit more contrite on his last Freedom Friday show, admitting that he only knew a small part of the Cold Case Posse investigation. This after a possible rebuke from Mike Zullo, told to Sharon Rondeau, “The only people who are going to know what transpired as far as this certificate is concerned is going to be me and Montgomery. Nobody else can speak to this, and they shouldn’t.”

From older comments at Birther Report, it appears that Zullo had his own pack of running dogs, but not so many nowadays. While not so public in his activities, Mike Zullo could have been considered the running dog of Sheriff Joe Arpaio (or perhaps minion is the better term for Zullo). Zullo says now, “I feel like I’m in limbo. I’ve basically been abandoned.”

If birthers knew the term, I’m sure that they would be quick to apply it to their opponents, but in fact I pay relatively little attention to President Obama. He doesn’t even give me scraps.


Ted Cruz defends his eligibility to be president

Confronts head on claims he’s not a natural born citizen

imageThe New Hampshire Ballot Law Commission will consider arguments today from petitioners seeking to prevent Cruz from appearing on the state’s Republican Primary Ballot.1 Two petitioners, Carmon Elliott and Chris Booth, challenge his eligibility based on the fact that Cruz was born in Canada, and their interpretation of the meaning of “natural born citizen” in the US Constitution’s list of requirements to become president. Ted Cruz responds through his attorney, arguing that he is eligible.

The Elliott Challenge

In the challenge filed, Carmon Elliott reports an intervention in Federal Court in 2008, challenging the candidacy of Senator John McCain, born in the Panama Canal Zone. Elliott argues that Ted Cruz is not eligible to become president because he was born outside the jurisdiction of the United States, in Canada. Citing the Black Law Dictionary (9th ed) Elliott defines “natural born citizen” as “a person born within the jurisdiction of a natural government.” In addition Elliott cites Rogers v. Bellei and Perkins v. Elg noting that under the Constitution, foreign-born US citizens at birth do not stand under the same footing as the native born. Also appearing are Lynch v. Clarke, Shanks v. Dupont, The Venus, Dred Scott v Sandford, US v. Wong Kim Ark and Minor v. Happersett. Emmerich de Vattel and The Law of Nations gets a shout out too. The argument largely focuses on the distinction between the two sources of citizenship: birth and naturalization, arguing that Cruz must be a naturalized US Citizen. Elliott concludes by citing from an essay at The Free Republic:

So those born outside the United States to parents who are US citizens at the time of the person’s birth are both native citizens and also naturalized citizens, since their citizenship is a) granted to them by an Act of Congress, and b) effective from the instant of their birth, based on the fact that the person’s parents were US citizens at that moment.

The Booth Challenge

The Challenge of Christopher Booth covers some of the same ground as Elliott, citing the same Free Republic essay, but also cites a definition of natural-born citizen from a web site, The Federalist Blog, which is not an authority and expresses ideas that I have disagreed with in the past. He cites the more authoritative St. George Tucker who wrote that those naturalized according to acts of Congress are “incapable of being chosen to the office of president….”2  He cites the familiar speech of James Madison before Congress where he says that place of birth is what matters for Citizenship in the United States.

Neither challenger argues that a US President must have two citizen parents.

The Cruz Response

imageIt seems likely to this writer that the weighty arguments of the two challengers will not amount to much because Cruz attorney Bryan K. Gould, who will appear before the Commission today to defend Cruz’s eligibility, argues rather convincingly that the Ballot Law Commission does not have any discretion in the matter, and that as a matter of law, Cruz must appear on the ballot because the New Hampshire Secretary of State has already ruled that is a “regular” candidate.

In the Cruz response, attorney Gould follows his argument that the law requires Cruz to be on the ballot and that the challengers lack standing, with a head-on rebuttal of the arguments of the challengers that foreign-born persons like Cruz cannot become president. Gould begins:

The Constitution does not explicitly define the phrase “natural born Citizen.” But its meaning is not difficult to determine, evidenced by the fact that every single reliable authority is in agreement on what it means: a “natural born Citizen” is anyone who was a citizen at the moment they were “born”—as opposed to becoming a citizen later, through the naturalization process at some point after their birth.

Gould, rather than beginning with court decisions, cites various authorities. He cites the Naturalization of 1790 which calls the foreign-born children of US fathers “natural born citizens,” and cites authority for considering the acts of the First Congress significant in the interpretation of the Constitution. He also cites Robinson v. Bowen that found it “highly probable … that Senator McCain is a natural born citizen” due to his birth to at least one U.S. citizen parent. He also cites Hollander v. McCain and Ankeny v. Governor of State of Indiana. George Romney eligibility material appears, and Jack Maskell’s report for the Congressional Research Service is cited as authority.

If I had to summarize Gould’s approach, it is an appeal to modern authority and their interpretation of the historical sources. It does not attempt to argue from the historical sources themselves, except for the 1790 Act.

My prediction: Cruz wins on a dismissal.


All candidates allowed on the ballot.

1In addition to the two challenges discussed in this article to the eligibility of Senator Cruz, there are also challenges to Sanders from Andy Martin, and challenges against Cruz, Jindal, Rubio and Santorum by Robert C Laity.  News reports say that Martin has challenged Ted Cruz as well, but I found no indication of such a complaint from Martin at the Ballot Law Commission web site.

Documents for these include:

2Mario Apuzzo used the same citation at John Woodman’s blog. The lengthy footnote from which the St. George Tucker quote comes deals exclusively with individuals who naturalize after birth, and there is nothing in the footnote that suggests that it was also intended to apply to persons who become citizens at birth.


Conspiracy v. accident

Things are going along just fine and then there is a crisis, a financial bubble bursts, unemployment surges, terrorists blow up something. We live in a world saturated with information and events, and it is only natural to try to make sense of them. One writer on conspiracy theories described them as a “poor man’s sociology,” an unscientific attempt to explain things.

The two large competing popular views of why events bad happen are that events are the result of an unseen malevolent hand engaged in a conspiracy, and the other is that things are more or less accidents and screw-ups (the Forrest Gump “**IT” happens view). Neither view is correct, a priori. Indeed both could be called a poor man’s sociology (or whatever scientific discipline one wants to apply). I do no agree that there are only these two alternatives. I believe that there are predictable natural processes too.

While there is serious debunking of the moon landing hoax conspiracy theory, and the 9/11 Twin Towers controlled demolition theory, much of what appears for debunking is begging question by saying things like, “the government can’t keep a secret,” or to attack the sanity of the one presenting the theory. I prefer to limit my own application of ridicule to conspiracy theories to the really silly ones, like the guy who says that teen aged Obama teleported to a base on Mars.

Certainly in the Obama Conspiracy debunking process, we do invoke accident, such things as part of a date missing from a selective service registration, or a publicist client brochure saying Obama was born in Kenya. But invocation of an accident is not enough. It should be argued that the accident is plausible: in the case of the date stamp finding other date stamps with parts missing, and in the case of the brochure obtaining the testimony of the one who wrote it. Birthers say that the oddities in Obama’s story are so numerous as to be implausible as accidents; however, much of what birthers include in that list of oddities turn out not to be odd. One must also take into account  that massive amounts of material were sifted to come up with that list.

One of my preferred techniques is to find internal inconsistencies in the conspiracist narrative.  An example is a birther narrative that explains artifacts in Obama’s birth certificate PDF to an inept forger, while at the same time the birther narrative says Obama was out into office by the CIA who has some of the best forgers in the world. Another basic technique is to demonstrate that birther premises are false, such as their premise that no one used the phrase African American in 1961 or there was a travel ban to Pakistan in place for Americans in 1981 when Obama traveled there. Contemporary government documents blow apart both those stories.

Finally, I expect someone putting forward a conspiracy theory to offer some tangible evidence beyond a coincidence. Birthers tried that with Obama’s birth certificate, but that all fell apart under close scrutiny. If that evidence is testimony, then I expect some explanation of how the witness knows what he claims (this is where the Tim Adams story fell down), or if it is expert testimony, then I expect the witness to be an actual expert.

Insofar as Obama birthplace conspiracy theories, I think the skeptics have done a solid debunking job, and have not relied simply on skepticism and ridicule.