Obama’s attorney in Georgia, Michael Jablonski, earned some good natured praise for winning a series of eligibility lawsuits in Georgia by not showing up, and adding “The Jablonski Empty Chair Technique”® into our vocabulary.
That’s all good fun, but now the decision of Georgia Secretary of State Kemp has been appealed to the Superior Court in Fulton County and everybody has to get serious. Once again the 4 cases have been moved to a single judge (Hon. Cynthia D. Wright) and Jablonski has move for dismissal in the Farrar case (and has or presumably will in the others).
There are two theories at play in the various cases. One is the identity theft, social-security fraud, Indonesian adoption scenario of Farrar (et al.), and the natural born citizen definition issue raised by Swensson (et al.) Jablonski succinctly1 responds to the Farrar case in a 7-page, heavily footnoted Brief in Support of Respondent’s Motion to Dismiss (embedded at the end of this article).
Please note that I am not including every detail raised in the Brief, only a survey.
Jablonski sets the scene by reciting in footnotes (almost 2 pages worth!) a litany of cases challenging Obama’s eligibility that have been rejected by the courts, cases in Georgia and in Federal Court, representing them as harassment and politically motivated. He cites two cases in support of Obama’s eligibility; one is the familiar Ankeny v. Governor of Indiana and a new one, United States v. Marguet-Pillado, 748F.3d 1001,1006 (9th Cir., 2011). Marguet-Pillado was a case of a person born outside of the United States to one US citizen parent. The Circuit Court in that case stated that as a matter of law someone born outside the United States to one citizen parent was a natural born citizen.
Jablonski then requests that the suit be dismissed on three grounds:
- Lack of subject matter jurisdiction
- Failure of service
- Failure to state a claim upon which relief can be granted
In support of lack of subject matter jurisdiction, Mr. Jablonski repeats the argument he made unsuccessfully before Judge Malihi that a Georgia Preference Primary is not an election, and therefore no one has to be eligible under Georgia law. (Judge Malihi reached his decision on whether or not Obama was a “candidate” rather than whether the Primary was an “election.”) He says that the right of Georgians to express their preference is a Constitutionally-protected right. (I haven’t looked to see if the citations in support of this section differ from those cited previously.)
In support of the second point, Jablonski says that challengers just put their complaint in the mail rather than serving it, and did not seek a waiver of service. He cites a Georgia case that says: “Where there is no process, and no waiver of process, no valid suit arises.”
Finally, since there is nothing that Barack Obama can do relative to whether he is on the Ballot in Georgia or not, there is nothing the Court could order him to do that would satisfy the plea of the challengers (except maybe eat worms and die). Jablonski argues that since the only party that can do anything, The Secretary of State, is not a party to the case, it should be dismissed.
Points 1 and 3 are applicable to all the cases. I presume that the real lawyers handling the cases of Welden, Powell and Swensson would have gotten the service right.
1Bless his heart. I am so tired of reading long legal filings.