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Burden of proof : Obama strikes back

Plaintiffs in the Georgia ballot challenge argue that the burden of proof is on the defendant (Obama) to prove eligibility, citing Haynes v. Wells, 273 Ga. 106, 538 S.S.2d 430 (2000). I wrote about this in my article Burden of proof in Georgia. In all the furor leading up last Thursday’s hearing, I failed to note that the defense filed a brief challenging that contention, arguing that the instant case differs from Haynes and that the rule that should be followed is:

a citizen may not be deprived of this right [to hold elective office] without proof of some disqualification specifically declared by law.

Patten v Miller, 190 Ga. 123, 139 (1940), et al.

The full Jablonski motion follows:

2012-01-23 OBAMA Brief Re Allocation of Burden of Proof

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36 Responses to Burden of proof : Obama strikes back

  1. avatar
    Dr. Conspiracy February 1, 2012 at 3:41 pm #

    The burden of proof argument only applies in the Farrar case, since it alone questions facts related to the President’s eligibility. Welden, Powell and Swensson are arguing solely what the law is based on undisputed facts.

    Orly Taitz really didn’t establish anything useful for her own case in the hearing, but it should be noted that the hearing was just an abbreviated venue for plaintiffs to get things into the record. She really didn’t present her full case. To be fair, we should look at her documents (filed and yet to be filed) rather than her abysmal court performance.

  2. avatar
    J. Potter February 1, 2012 at 3:56 pm #

    That the defendant should have the burden of proof in any eligibility challenge boggles the mind. The election code and relevant charters / constitutions spell out the requirements for filing as a candidate. When a candidate files, they are on record as being eligible. And they should be required to submit reasonable documentation in regards to the requirements, if possible, IMO. That would make the burden of proof a moot point.

    However, in many cases, filing takes the form of an affidavit. We want to have an open ballot, and keep burdens light. I can appreciate that. And documents do get misfiled, destroyed, etc.

    Regardless of what form the filing takes, I still say any jurisdiction placing the burden of proof on the candidate re: their own eligibility is teetering on the edge of kangaroo. A person shouldn’t have to prove their civil rights (Jim Crow, anyone?). Opens the process up to all kinds of shenanigans (poll taxes, literacy tests were just teh beginning). Well, the shenanigans happen anyway, but this philosophy would incorporate the shenanigans into official process.

  3. avatar
    Sean February 1, 2012 at 3:59 pm #

    The proof of disqualification is Orly’s word.

  4. avatar
    G February 1, 2012 at 4:04 pm #

    LOL! Point taken…

    However… Orly’s document filing history is usually pretty much the same schlock from case to case and has been fairly abysmal in its own right, so far. I wouldn’t expect her quality to suddenly improve in this area either…

    Dr. Conspiracy: To be fair, we should look at her documents (filed and yet to be filed) rather than her abysmal court performance.

  5. avatar
    Scientist February 1, 2012 at 4:26 pm #

    Dr. Conspiracy: The burden of proof argument only applies in the Farrar case, since it alone questions facts related to the President’s eligibility. Welden, Powell and Swensson are arguing solely what the law is based on undisputed facts

    Isn’t there also a burden of proof as regards a legal argument? The arguments revolve around the meaning of “natural born citizen”. In a rigorous sense, neither side can PROVE their definition is the correct one. I continue to believe Malihi will not pronounce on this question either way, but will consider it a political question to be dealt with by Congress. Of course he could say that Congress already spoke on the question as regards Obama and given that all of the legal cases referred to by both sides long pre-date that event, the matter is settled.

  6. avatar
    Scientist February 1, 2012 at 4:31 pm #

    Dr. Conspiracy: To be fair, we should look at her documents (filed and yet to be filed) rather than her abysmal court performance.

    There has been a lot of work by behavioral econmists running games in order to model real markets. The winning strategy is-start out playing fair. If the opponent reciprocates, continue playing fair; if the opponent cheats, cheat too. I would argue that Orly has never played fair since day 1 and, thus, to play fair against her is unwise.

  7. avatar
    train111 February 1, 2012 at 4:36 pm #

    For everybodys info:

    In Illinois. From comments presented before, the Meroni,Cleveland, and Bolton objection to Obama has been withdrawn. This one claimed that the signatures on his nominating petitions were invalid and required a binder check of the signatures. Not enough signatures were declared invalid, so the parties above witdrew their objection.

    Tomorrow the state elections board meets to decide the other two. Freeman vs Obama and Jackson vs Obama. Both used the DeVattel argument that Obama isn’t a citizen. The hearing officer has recomended to the Board of elections that both objections be overruled. The Board pretty much follows the hearing officers recomendations, so these two both appear pretty much dead.

    A copy of Obama’s borth certificate was entered into evidence in both cases. Also Leo Donofrio’s Amicus Brief in the Georgia case was presented as ‘evidence’ opposed to Obama’s certifiacation in the Jackson case.
    In both cases the hearing officer found that the objectors had an “incorrect legal definition” of what is a natural born citizen. The hearing officer in the Jackson case determined Donofrio’s amicus brief as “illogical, nonsensical, and not worthy of consideration.”

    So it looks like the Illinois cases are coming to an inglorious end.

    train111

  8. avatar
    J. Potter February 1, 2012 at 4:38 pm #

    train111: The hearing officer in the Jackson case determined Donofrio’s amicus brief as “illogical, nonsensical, and not worthy of consideration.”

    Thanks, Train, have a link to that? πŸ˜€

  9. avatar
    Majority Will February 1, 2012 at 4:43 pm #

    train111: The hearing officer in the Jackson case determined Donofrio’s amicus brief as “illogical, nonsensical, and not worthy of consideration.”

    That’s not going to go over well with Leo’s hyper-inflated ego (which one day may collapse in on itself from the gravitational strain). πŸ˜€

    P.S. Thanks for the informative update.

  10. avatar
    train111 February 1, 2012 at 4:49 pm #

    Go to the Illinois Board of elections website

    http://www.elections.il.gov/

    Then on the far left of the page is a little tab entitled “Menu” Click on it. This will bring up a menu in which you click on “The Board” This in turn opens up another menu on which you click on “related material”
    Click on that and a new page opens. In the upper left is a box entiteled “agenda” Click on it and a list of dates appears. Scroll down to February 2, 2012 and click. This opens up another page that gives you the opportunity to click on a pdf file for the February 2 meeting. Click on it and up comes the 236 page packet for the members of the board for tommorrows meeting. Pages 23-49 refer to the 2 challenges against Obama.

    Good Luck!! That page is a nightmare to navigate–just like Illinois election laws. Incidentally Mike Kasper represented Obama, and he is one of the best out there. He’s the one who got the favorable ruling on Rahm Emanuel’s residency status when he ran for mayor of Chicago.

    train111

  11. avatar
    G February 1, 2012 at 4:52 pm #

    Thanks for the update! Of particular interest were the tidbits you shared about both the BC being submitted and that Leo’s steaming load of cr@p was dumped into the fray.

    As others have mentioned, do you have any links for these updates? Thanks.

    train111: For everybodys info:In Illinois. From comments presented before, the Meroni,Cleveland, and Bolton objection to Obama has been withdrawn. This one claimed that the signatures on his nominating petitions were invalid and required a binder check of the signatures. Not enough signatures were declared invalid, so the parties above witdrew their objection.Tomorrow the state elections board meets to decide the other two. Freeman vs Obama and Jackson vs Obama. Both used the DeVattel argument that Obama isn’t a citizen. The hearing officer has recomended to the Board of elections that both objections be overruled. The Board pretty much follows the hearing officers recomendations, so these two both appear pretty much dead.

    A copy of Obama’s birth certificate was entered into evidence in both cases. Also Leo Donofrio’s Amicus Brief in the Georgia case was presented as evidence’ opposed to Obama’s certifiacation in the Jackson case. In both cases the hearing officer found that the objectors had an “incorrect legal definition” of what is a natural born citizen. The hearing officer in the Jackson case determined Donofrio’s amicus brief as “illogical, nonsensical, and not worthy of consideration.”

    So it looks like the Illinois cases are coming to an inglorious end.train111

  12. avatar
    G February 1, 2012 at 4:53 pm #

    Thanks!!

    train111: Go to the Illinois Board of elections websitehttp://www.elections.il.gov/Then on the far left of the page is a little tab entitled “Menu” Click on it. This will bring up a menu in which you click on “The Board” This in turn opens up another menu on which you click on “related material”Click on that and a new page opens. In the upper left is a box entiteled “agenda” Click on it and a list of dates appears. Scroll down to February 2, 2012 and click. This opens up another page that gives you the opportunity to click on a pdf file for the February 2 meeting. Click on it and up comes the 236 page packet for the members of the board for tommorrows meeting. Pages 23-49 refer to the 2 challenges against Obama.Good Luck!! That page is a nightmare to navigate–just like Illinois election laws. Incidentally Mike Kasper represented Obama, and he is one of the best out there. He’s the one who got the favorable ruling on Rahm Emanuel’s residency status when he ran for mayor of Chicago.train111

  13. avatar
    richCares February 1, 2012 at 4:58 pm #

    train111, thanks for your posting some neat stuff, I enjoyed reading at links

  14. avatar
    J. Potter February 1, 2012 at 5:02 pm #

    train111: Go to the Illinois Board of elections website

    Yes, thanks, Train, as you noted previously and again, that site is a disaster!
    It is challenging to organization information …. these guys are giving a clinic on how to fail miserably at it. So fired.

    Direct link is: http://www.elections.il.gov/Downloads/AboutTheBoard/PDF/02_02_12AgendaAmended.pdf

    Trying to not laugh out loud while reading ….. Objector didn’t state his interest … relying on incorrect legal interpretation of NBC … etc, etc…

  15. avatar
    J. Potter February 1, 2012 at 5:07 pm #

    Oh, and the best … “Hearing Officer finds that the birth certificate clearly establishes the Candidate’s eligibility for office as a “Natural Born Citizen”.

    Post that far and wide and duck as you do; heads will be exploding!

  16. avatar
    Dr. Conspiracy February 1, 2012 at 5:59 pm #

    Thank you very much for the information!!!!! I have gotten the PDF file and removed the extraneous pages for challenges not related to Obama, and placed the file on Scribd

    http://www.scribd.com/doc/80165530/Illinois-Elections-Commission-Freeman-v-Obama-and-Jackson-v-Obama-agenda-and-recommendations

    I also wrote up an article to highlight what you and others here have said.

    train111: Good Luck!! That page is a nightmare to navigate

  17. avatar
    G February 1, 2012 at 5:59 pm #

    Thanks for the direct link! As the report is extremely large, I want to point out that the Obama related Birther challenges are found on pages 23-49. There are two there, with the second one starting on page 29. That second one is the “doozy” in pulling the full bore of “2 citizen parent” claptrap. That Objector (Michael Jackson) seems to be a true nutter (see his email address listed therein which starts off with “JesusChristsBloodSaves” … that should tell you everything you need to know about this particular nut right there.

    Definitely entertaining reading.

    J. Potter: Yes, thanks, Train, as you noted previously and again, that site is a disaster!It is challenging to organization information …. these guys are giving a clinic on how to fail miserably at it. So fired.Direct link is: http://www.elections.il.gov/Downloads/AboutTheBoard/PDF/02_02_12AgendaAmended.pdfTrying to not laugh out loud while reading ….. Objector didn’t state his interest … relying on incorrect legal interpretation of NBC … etc, etc…

  18. avatar
    G February 1, 2012 at 6:00 pm #

    Yes, that was my favorite part too.

    For those looking for the reference, it is Point #4 on page 31.

    J. Potter: Oh, and the best … “Hearing Officer finds that the birth certificate clearly establishes the Candidate’s eligibility for office as a “Natural Born Citizen”.Post that far and wide and duck as you do; heads will be exploding!

  19. avatar
    Majority Will February 1, 2012 at 6:23 pm #

    It’s possible that “Mike” is not human.

  20. avatar
    G February 1, 2012 at 6:33 pm #

    Dr. C, is there a reason that you are letting this clear SPAM to continue to come through here?

    I mean, how many times has this very same crazy post appeared here over and over and over again?

    This isn’t dialog. There is no actual communication coming from this poster. Just the same lengthy nonsense cr@pped over here to clutter the blog up again and again and again.

    I continue to add my voice to all the rest here who have pleaded with you to please ban this pure and obvious SPAM.

    Mike: DO NOT CENSOR THIS POSTING!!! THANKS!! THERE IS NOTHING IN THIS POST THAT WOULD JUSTIFY CENSORING IT!!

  21. avatar
    Dr. Conspiracy February 1, 2012 at 9:09 pm #

    Ah yes, about Mike. I apologize about this. I’ve gotten behind reading comments and didn’t seen the large number of these all-cap dumps.

    I went back and deleted all but one of them, and gave Mike the distinction of being the only individual in the SPAM filter (as opposed to the moderation filter).

    G: Dr. C, is there a reason that you are letting this clear SPAM to continue to come through here?

  22. avatar
    G February 1, 2012 at 9:28 pm #

    Much appreciated. Thanks for also explaining what happened. πŸ™‚

    Dr. Conspiracy: Ah yes, about Mike. I apologize about this. I’ve gotten behind reading comments and didn’t seen the large number of these all-cap dumps.I went back and deleted all but one of them, and gave Mike the distinction of being the only individual in the SPAM filter (as opposed to the moderation filter).

  23. avatar
    Expelliarmus February 1, 2012 at 11:38 pm #

    By any rational legal analysis, the burden of proof in Georgia is not on the candidate in a presidential preference primary.

    The Georgia appellate case that justified the shifting of the burden did so on this basic rationale:

    1. In order to get on the ballot, a candidate is required to submit an affidavit as to his status and residency;
    2. Because the law requires an affidavit (tender of proof) in order to be placed on the ballot, if challenged, the burden of proof is on the candidate.

    Candidates listed on the primary ballot do not have to submit any sort of affidavit to be on the ballot. Hence, the rationale for the shifted burden does not apply — it’s relatively simple:

    If A is true, then B.
    A is false.

    So in order to get to “B” you have to find another rationale.

  24. avatar
    JPotter February 2, 2012 at 12:26 am #

    Expelliarmus: By any rational legal analysis, the burden of proof in Georgia is not on the candidate in a presidential preference primary.

    Oh, but that’s precisely what the birthers insist on, that the burden of proof is always on the other party! Not only in this case—I know at least Van Irion said as much—but at all times. Online and off. It’s the only MO they have:

    “I’m gonna make a crazy, unsupported assertion, and it’s on you to prove me wrong! MuaHAHAHA!!” *mustache twirl*

    What’s awesome is when they totally blow it and pick something easily disproven, like Strunk did here the other day.

  25. avatar
    Nathanael February 2, 2012 at 11:26 am #

    There has been some discussion recently about whether Georgia ballot eligibility hearings have authority to determine constitutional or merely administrative qualifications. I believe this was part of Jablonslki’s argument — that a Georgia administrative hearing lacks competence to decide constitutional issues, and is restricted to administrative ones — did the candidate collect enough signatures, complete all paperwork, file before the deadline, etc. That may also be what lies behind Jablonski’s refusal to file a BC in that case – because doing so would legitimize the ALC’s judicial (for lack of a better word) overreach.

    Obviously the Ga. SoS didn’t buy the argument, but some of the legal eagles at FB aren’t convinced Ga. Statutes support him.

  26. avatar
    Nathanael February 2, 2012 at 11:32 am #

    G:
    his email address listed therein which starts off with “JesusChristsBloodSaves” … that should tell you everything you need to know about this particular nut right there.

    Hm, you seem to be implying anyone who believes in the atoning work of Christ is ipso facto a nut. But I know you couldn’t have meant that….

  27. avatar
    Majority Will February 2, 2012 at 11:58 am #

    JPotter: “I’m gonna make a crazy, unsupported assertion, and it’s on you to prove me wrong! MuaHAHAHA!!” *mustache twirl*

    That’s sounds like it could be an excerpt from Joseph Farah’s autobiography.

  28. avatar
    G February 2, 2012 at 1:57 pm #

    Of course I didn’t mean that.

    Let’s be crystal clear – there is a very vast difference between most normal religious followers and those that are the extremist nuts.

    Folks that have their entire email address titled as such are more likely to be in the extreme category… it is a sign of an extreme fixation and not just normal reverence.

    I hope that clears things up.

    Nathanael: Hm, you seem to be implying anyone who believes in the atoning work of Christ is ipso facto a nut. But I know you couldn’t have meant that….

  29. avatar
    donna February 2, 2012 at 9:40 pm #

    train111:

    thanks for your instructions – did you notice the 1/13/2012 letter from jackson to william mcguffage questionig mitt romney’s status as NOT a “natural born” citizen? it appears right after the photocopy of obama’s birth certificate

  30. avatar
    G February 2, 2012 at 11:24 pm #

    LOL! Yeah, I noticed that when I read it too…

    donna: did you notice the 1/13/2012 letter from jackson to william mcguffage questionig mitt romney’s status as NOT a “natural born” citizen? it appears right after the photocopy of obama’s birth certificate

  31. avatar
    Arthur February 2, 2012 at 11:37 pm #

    Nathanael: Hm, you seem to be implying anyone who believes in the atoning work of Christ is ipso facto a nut.

    Yeah. That’s it exactly. I will allow, however, that there are good nuts and bad nuts. And me, well I’m nuts for reasons that have nothing to do with Jesus.

  32. avatar
    Adrien Nash February 3, 2012 at 5:42 am #

    Majority Will: That’s not going to go over well with Leo’s hyper-inflated ego (which one day may collapse in on itself from the gravitational strain).

    /blockquote>
    Hyper-inflated ego? I don’t get that impression from reading his writing, but I do get that impression from his total absence of any response to anything that I’ve written to him, and I’ve written a lot, but it has been mostly in opposition to faulty logic that he suffers from. He doesn’t appear to be one who gives the time of day to others. Unless they come up with something like I did which really caught his attention, -so much so that he devoted his whole next blog post to it (naturalized, native-born, and natural born citizens mentioned in the INS docs.) But he never bother to reply to me directly. That doesn’t say anything good about his ego. Is it because he’s a proud lawyer, or because he’s independently wealthy?

  33. avatar
    Keith February 3, 2012 at 8:57 am #

    Let me get this straight.

    This guy basically stole your research, published it as his own work (that is called plagiarism by the way), and you continue to stick your nose so far up his backside that you can probably watch him brush his teeth from the inside?

    And you do this on a site pretty much hostile to both you both?

    And you expect us to care? You expect us to change our view of him? You expect us to respect your opinion, when you clearly don’t respect your self?

    OK. Got it.

  34. avatar
    Keith February 3, 2012 at 8:59 am #

    Adrien Nash:

    The above post was directed at Adrien.

    Sorry about that.

  35. avatar
    Arthur February 3, 2012 at 10:43 am #

    Adrien Nash: That doesn’t say anything good about his ego. Is it because he’s a proud lawyer, or because he’s independently wealthy?

    You forgot, “Self-serving jackanapes.”

  36. avatar
    Ballantine February 3, 2012 at 11:16 am #

    What exactly is he proud of as a lawyer? Getting laughed out of court by the 2nd Circuit? What has he accomplished other than provide legally illiterate birthers with false legal arguments. When challenge on an unmoderated blog, he ran away as fast as he could. Frankly, his writings are legal gibberish.