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When judges collide

The Georgia presidential eligibility case of Terry v. Handel was decided in October of 2008,  before I started my career as Dr. Conspiracy, and I had not read the decision until today, a decision that was affirmed  by the Court of Appeals, and let stand by the Georgia Supreme Court.

Mr. Terry sought to force Georgia Secretary of State Karen Handel to investigate candidate Obama’s eligibility in the General Election. The Superior Court said:

The Secretary of State of Georgia is not given any authority that is discretionary nor any that is mandatory to refuse to allow someone to be listed as a candidate for President by a political party because she believes that the candidate might not be qualified. See O.C.G.A §§ 21-2-172 to 21-2-200.

This is one of the long list of cases that Obama’s attorney Jablonski mentioned in a footnote in his Motion to Dismiss the 2011 Georgia ballot challenges. Jablonski, however, does not discuss Terry, although it would certainly seem on point. In his later letter to Secretary Kemp asking for the hearing to be canceled, Jablonski did reference Terry, saying:

Indeed, regardless of the collapse of proceedings before the ALJ, the original hearing request was defective as a matter of law. Terry v. Handel, 08cv158774S (Superior Court Fulton County, 2008), appeal dismissed, No. S09D0284 (Ga. Supreme Court), reconsideration denied, No. S09A1373. (‘The Secretary of State of Georgia is not given any authority that is discretionary nor any that is mandatory to refuse to allow someone to be listed as a candidate for President by a political party because she believes that the candidate might not be qualified.’)

Kemp did not address Terry in his response denying Jablonski’s request.

Judge Malihi, however, used very different reasoning than the Superior Court did in his order not dismissing the case, saying:

Accordingly, this Court finds that Defendant is a candidate for federal office who has been certified by the state executive committee of a political party, and therefore must, under Code Section 21-2-5, meet the constitutional and statutory qualifications for holding the office being sought.

The section of the 2006 Georgia Code cited by Judge Malihi specifies the challenge process in Georgia, and includes this:

If the Secretary of State determines that the candidate is not qualified, the Secretary of State shall withhold the name of the candidate from the ballot or strike such candidate´s name from the ballot if the ballots have been printed.

At this point, I am at a loss to understand why the Superior Court said what they said in 2008.

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39 Responses to When judges collide

  1. avatar
    Squeeky Fromm February 16, 2012 at 3:40 pm #

    Actually, it is not at all surprising that judges sometimes disagree about what various laws mean. For example, some courts think ObamaCare is constitutional and some don’t. Even the SCOTUS has dissents in its decisions.

    This is one of the reasons why the Birthers and the Bir-Curious should be paying attention to all these suits. It is kinda rare when every single judge and court tells you that your legal theory is bonkers.

    Squeeky Fromm
    Girl Reporter

  2. avatar
    Thomas Brown February 16, 2012 at 3:44 pm #

    Is it possible that the section cited by Handel as applicable to Presidential candidates (chosen by the national party) is appropriate, and those cited by Malihi are supposed to apply to all other candidates, because nominated by the state party?

  3. avatar
    G February 16, 2012 at 4:12 pm #

    Well, and that is the whole difference here, isn’t it?

    There are many areas of “unsettled law”, in which different courts may have some level of disagreement and reach different conclusions, sure. Much of that is a difference of opinion in both interpretation and extrapolation.

    However, there is a *huge* difference between those types of disputed legal battles and complete crackpottery.

    Birtherism and all the Sovereign Citizen legal nonsense is just that – crackpottery and utterly bonkers. It is flim-flam sham pseudo-law without *any* serious real world basis to hang its hat on.

    So yeah, while I completely agree that a constant string of courts always ruling on the same side of an issue should quickly become a “clue” to even the most dense and ignorant out there; I certainly wouldn’t say it is rare.

    If anything, our courts are over cluttered with endless frivolous filings all the time. Tons of bogus and bonkers garbage cases that endlessly get dismissed and never make the news, because they are utterly bonkers and therefore not worthy of being paid attention to in the first place.

    Squeeky Fromm: This is one of the reasons why the Birthers and the Bir-Curious should be paying attention to all these suits. It is kinda rare when every single judge and court tells you that your legal theory is bonkers.

  4. avatar
    G February 16, 2012 at 4:13 pm #

    That is along the lines of what I was wondering too. I would fully expect that there might be different legal processes and rules that apply to the vast differences between a Party Primary ballot and a Presidential General Election ballot.

    Thomas Brown: Is it possible that the section cited by Handel as applicable to Presidential candidates (chosen by the national party) is appropriate, and those cited by Malihi are supposed to apply to all other candidates, because nominated by the state party?

  5. avatar
    Paul Pieniezny February 16, 2012 at 4:24 pm #

    Thomas Brown:
    Is it possible that the section cited by Handel as applicable to Presidential candidates (chosen by the national party) is appropriate, and those cited by Malihi are supposed to apply to all other candidates, because nominated by the state party?

    At TFB, that argument was made by about one hlf of the lawyers present.

    However, a case could also be made that the circumstances are different: Terry vs Handel seems to be about the actual election, not the primaries. In November, people will not be voting for Obama. but for electors.

    Georgia has a love-hate relationship with electors: in 1872, 3 electors from Georgia insisted on voting for the man in whose name they were elected: Horace Greeley. Congress later refused to count those votes because Horace Greeley was ineligible, on account of a minor happerset, I mean detail: he was dead.

  6. avatar
    Squeeky Fromm February 16, 2012 at 4:54 pm #

    PaulP:

    OMG, synchronicity strikes again!!! I just used a Minor “Happersett” in that same grammatical sense in a Easter Egg caption about Leo Donofrio in a new Internet Article I am working on. This is like the third or fourth time that this has happened just this last week.

    Is the Fabric of The Universe becoming frayed in 2012. I am afrayed so.

    Squeeky Fromm
    Girl Reporter

  7. avatar
    Dr. Conspiracy February 16, 2012 at 6:33 pm #

    The birthers are threatening reality itself!

    Squeeky Fromm: Is the Fabric of The Universe becoming frayed in 2012

  8. avatar
    Thomas Brown February 16, 2012 at 6:41 pm #

    I’m a frayed knot!

  9. avatar
    Dr. Conspiracy February 16, 2012 at 7:09 pm #

    I have a hard time accepting that argument, having looked at a Georgia Sample Ballot for 2008. It has the presidential candidate’s name on it, not electors. Further, if this the argument to be made, why didn’t the Court in 2008 make it?

    I note that the links to the Terry appeal have gone stale.

    Paul Pieniezny: However, a case could also be made that the circumstances are different: Terry vs Handel seems to be about the actual election, not the primaries. In November, people will not be voting for Obama. but for electors.

  10. avatar
    Squeeky Fromm February 16, 2012 at 7:32 pm #

    TBrown:

    Mega GROANS!!! Well, I finally finished the Leo Donofrio thingy. I had to scan thru his stupid 209 page pile of crap Brief.

    Leo Donofrio, The Naked Emperor of the Birthers

    http://birtherthinktank.wordpress.com/2012/02/16/leo-donofrio-the-naked-emperor-of-the-birthers/

    Squeeky Fromm
    Girl Reporter

  11. avatar
    Daniel February 16, 2012 at 7:44 pm #

    So basically is it safe to say the issue here is that two Judges agree that the birther ballot challenge is a pile of crap, but disagree on exactly why?

  12. avatar
    G February 16, 2012 at 7:52 pm #

    Another job well done! As always, the images & easter-eggs are some of my favorite laughs… (you’ve been on a tear with *naughty* double-entendres lately, haven’t you…) 😉

    The analogies to Birtherism and HCA’s “The Emperor’s New Clothes” tale have been ripe for the picking for a long time now… glad to see you’ve finally leapt forward to capture it.

    For those casusal skimming readers here, I’ll take some excerpts from your work to summarize the point for them:

    Like the Emperor above, Donofrio also knows that he is holding a hand full of crap, but he is just in too deep to fold.

    Do you know why it is 200 pages??? So that you WILL NOT read it. You are supposed to be impressed by the weight of the paper alone.

    And sooo, this is how Leo Donofrio, Naked Emperor of the Birthers, struts his stuff. Unfortunately for him, his Brief is made of the same stuff as the Emperor’s New Clothes – – – Imaginary Threads. And thus his Briefs are showing, and he is exposed.

    Again, well done!

    Squeeky Fromm: TBrown:Mega GROANS!!! Well, I finally finished the Leo Donofrio thingy. I had to scan thru his stupid 209 page pile of crap Brief.Leo Donofrio, The Naked Emperor of the Birthershttp://birtherthinktank.wordpress.com/2012/02/16/leo-donofrio-the-naked-emperor-of-the-birthers/Squeeky FrommGirl Reporter

  13. avatar
    wild bill February 16, 2012 at 11:18 pm #

    The 2008 challenge was for the general election, in which the voters elect a slate of electors pleged to a candidate. The candidate’s name appears, but the candidate is not on the ballot, only the electors are. Thus an elector could be challenged (if, for example, he were not a resident of the state), but the candidate cannot. (The President isn’t elected until the electoral college votes, and the pleged electors could, and sometimes do, vote contrary to their pledges.)

    The more recent challenge was to the presidential primary, in which the candidate is on the ballot.

  14. avatar
    wild bill February 16, 2012 at 11:19 pm #

    when I said “the candidate is not on the ballot” I intended to convey the fact that the candidate is not actually being elected to any office at that vote. Sorry for the confusing language.

  15. avatar
    Arthur February 16, 2012 at 11:30 pm #

    wild bill: The more recent challenge was to the presidential primary, in which the candidate is on the ballot.

    Yes, but a primary is run by the political party that sponsors it. As it is not an election, it seems unlikely that a ballot challenge could successfully prevent a candidate from being considered by primary voters. Ultimately, a political party can nominate the candidate of its choice.

  16. avatar
    Expelliarmus February 17, 2012 at 3:36 am #

    Dr. Conspiracy: I have a hard time accepting that argument, having looked at a Georgia Sample Ballot for 2008. It has the presidential candidate’s name on it, not electors. Further, if this the argument to be made, why didn’t the Court in 2008 make it?

    It doesn’t matter what name is printed on the ballot. Georgia does not elect the US President in November. The results of the election simply determine the slate of delegates.

    And Malihi was dead wrong to deny the motion to dismiss. The March primary in Georgia isn’t an election of any sort; its merely a referendum. The delegates to the Democratic convention will be selected at district-level caucuses in April or May (I forget which — but the would-be delegates don’t even begin to file their notices of candidacy until weeks after the primary)

  17. avatar
    Expelliarmus February 17, 2012 at 3:55 am #

    Re your article above… I certainly hope that no one was citing to the “2006” Georgia code; I would think that in 2010 code would be more pertinent. See http://law.justia.com/codes/georgia/2010/title-21/chapter-2/article-1/21-2-5/

    In any case, if you read the section governing challenges, it is really quite simple. It says:

    “Every candidate for federal and state office who is certified by the state executive committee of a political party or who files a notice of candidacy shall meet the constitutional and statutory qualifications for holding the office being sought.”.

    Was Obama “certified by the state executive committee of a political party” to be on the primary ballot? No. There are very specific provision as to what “certification” entails for nominees to state office – suffice it to say that there is a specific form to be filled out and fees to be paid. For the presidential preference primary, there is merely a “list”. A “list” is not a “certification.”

    Did Obama file a “notice of candidacy”? Certainly not to the Secretary of State, though he apparently did send a letter to the state party. But even Malahi didn’t claim that – Malahi’s opinion asserts, falsely, that Obama was “certified”.

    I think the Georgia statutes are actually quite well written and the legislative intent abundantly clear. They even wrote a whole separate section about “Presidential Preference Primaries” (Article 5) just so no one would confuse them with the detailed provisions for “Selection and Qualfiication of Candidates and Presidential Electors” contained within Article 4.

  18. avatar
    Dr. Conspiracy February 17, 2012 at 8:07 am #

    They would have cited the 2006 code in Terry v Handel which was in 2008. I still don’t get why the Court in 2008 dismissed Terry saying that the Secretary of State had no authority to take an eligible candidate off the ballot in the General Election.

    Expelliarmus: Re your article above… I certainly hope that no one was citing to the “2006‘ Georgia code;

  19. avatar
    Dr. Conspiracy February 17, 2012 at 8:11 am #

    That and relying on the statute saying “every candidate must be eligible” and that Obama was a candidate.

    Thanks again. As usual, I learned something from your contribution.

    Expelliarmus: Did Obama file a “notice of candidacy”? Certainly not to the Secretary of State, though he apparently did send a letter to the state party. But even Malahi didn’t claim that – Malahi’s opinion asserts, falsely, that Obama was “certified”.

  20. avatar
    Scientist February 17, 2012 at 8:16 am #

    Dr. Conspiracy: I still don’t get why the Court in 2008 dismissed Terry saying that the Secretary of State had no authority to take an eligible candidate off the ballot in the General Election.

    Why would you want to give a Secretary of State authority to take an eligiible candidate off the ballot? In fact, since Secretaries of State are partisans, it seems a very bad idea to give them the authority to remove anyone from the ballot. Why shouldn’t the voters decide who they feel is qualified? If there are actual, legitimate eligibility issues, in an adversarial political system, it is the role of the opposiinng candidates to highlight those. If Farrar or anyone else believes Obama is ineligible, he ought to get off his fat behind and run against him, making that his campaign issue.

  21. avatar
    Dr. Conspiracy February 17, 2012 at 8:21 am #

    So basically you’re saying that I/we/the birthers were mistaken in our opinion that Georgia presented a unique opportunity for the birthers to run up the chain of courts and get a useful ruling on what a natural born citizen is.

    The correct avenue, I guess, would be for a rival democratic candidate sue, claiming harm to him from having to run against an ineligible opponent. Since none of the current challengers are on the ballot in Georgia, Georgia is a dead end.

    Expelliarmus: And Malihi was dead wrong to deny the motion to dismiss. The March primary in Georgia isn’t an election of any sort; its merely a referendum.

  22. avatar
    Dr. Conspiracy February 17, 2012 at 8:23 am #

    Sorry, I meant “ineligible”.

    Scientist: Why would you want to give a Secretary of State authority to take an eligiible candidate off the ballot?

  23. avatar
    Scientist February 17, 2012 at 8:44 am #

    Dr. Conspiracy: The correct avenue, I guess, would be for a rival democratic candidate sue, claiming harm to him from having to run against an ineligible opponent.

    Why would someone running against an ineligible opponent be disadvantaged or need to sue? What could be a better campaign issue than your opponent’s ineligibility? Is someone seriously suggesting that if Schwarznegger entered the Republican primaries , his opponents would fail to point out that he was from Austria?

  24. avatar
    Expelliarmus February 17, 2012 at 9:21 am #

    Dr. Conspiracy:
    They would have cited the 2006 code in Terry v Handel which was in 2008. I still don’t get why the Court in 2008 dismissed Terry saying that the Secretary of State had no authority to take an eligible candidate off the ballot in the General Election.

    Because Georgia doesn’t elect the President in the November election. They just choose the electors who will vote at the electoral college.

    The challenge statute only refers to candidates who have been certified by the executive committee of the “state” party. In November, the names on the ballot will be candidates certified by the national party.

    It is totally crazy to think that any one state could rule upon the eligibility of a national candidate for President. I know that’s what the birthers have been trying to do for 3 years now, but obviously it would wreak havoc in our nation if each state individually could set its own standards. So of course the Georgia statutes never contemplated that the challenge would be to a Presidential candidate.

  25. avatar
    Expelliarmus February 17, 2012 at 9:24 am #

    Dr. Conspiracy: So basically you’re saying that I/we/the birthers were mistaken in our opinion that Georgia presented a unique opportunity for the birthers to run up the chain of courts and get a useful ruling on what a natural born citizen is.

    The correct avenue, I guess, would be for a rival democratic candidate sue, claiming harm to him from having to run against an ineligible opponent. Since none of the current challengers are on the ballot in Georgia, Georgia is a dead end.

    No, the correct avenue is to wait until after the election and convince your congress member or Senator to raise an objection to qualifications at the time set for counting electoral college votes. The issue of eligibilty isn’t even ripe until then.

  26. avatar
    Rickey February 17, 2012 at 10:38 am #

    Expelliarmus: No, the correct avenue is to wait until after the election and convince your congress member or Senator to raise an objection to qualifications at the time set for counting electoral college votes.The issue of eligibilty isn’t even ripe until then.

    That may well be the only recourse in regard to a Presidential election.

    At the state or local level, I would think that a losing candidate could sue over the eligibility of the winner. Orly did just that when she sued Damon Dunn in California. Her lawsuit was without merit, of course, but it was allowed to proceed.

  27. avatar
    Scientist February 17, 2012 at 10:52 am #

    Expelliarmus: No, the correct avenue is to wait until after the election and convince your congress member or Senator to raise an objection to qualifications at the time set for counting electoral college votes.

    Agreed. At least that’s what the 12th and 20th amendments imply.

    On a general note, how can a superpower allow national elections to be the fiefdom of local poobahs and unelected judges? Can a candidate be eligible in Vermont, yet ineligible in Georgia? Wouldn’t such an outcome be prima facie absurd? Is it not time for Congress to set up a national non-partisan body made up of professionals to control national elections as happens in the civilized world?

  28. avatar
    Keith February 17, 2012 at 11:23 am #

    Scientist: Can a candidate be eligible in Vermont, yet ineligible in Georgia?

    No.

    It is already settled law that States cannot impose eligibility requirements for Federal Office beyond those in the Constitution.

  29. avatar
    Scientist February 17, 2012 at 11:55 am #

    Keith: It is already settled law that States cannot impose eligibility requirements for Federal Office beyond those in the Constitution

    Yes, but now we have lawsuits attempting to impose a requirement for 2 citizen parents. I think it’s safe to say no state court is going to do that, but what about the case of someone born overseas to a US citizen parent? It is not out of the question that one state court would find them eligible and another would not.

    In my opinion, all such ballot challenges ought to be tossed as a matter for Congress to decide.

  30. avatar
    Keith February 17, 2012 at 5:31 pm #

    Scientist: It is not out of the question that one state court would find them eligible and another would not.

    Yes, but that wouldn’t make them eligible in one state and not the other. It would just raise an issue for higher courts to decide which state was correct.

  31. avatar
    Expelliarmus February 17, 2012 at 6:52 pm #

    The point is, state courts should not even have jurisdiction to venture an opinion; it is exclusively a federal matter.

    And the Constitution pretty much says that it is a matter for Congress, & not the courts, to decide. So to the extent that there is ambiguity about terms like “natural born citizen”, I think that the courts would deem that to be a political question to be decided by Congress.

    In any case, I don’t see any court-based challenge becoming ripe until after Congress has weighed in, and at that point I think that the only individual with standing would be either the disallowed President-elect, or the ambitious Vice-President Elect.

  32. avatar
    Dr. Conspiracy February 17, 2012 at 7:04 pm #

    If this is indeed the case, it would be nice for an opportunity for the Supreme Court to say so (as they have regarding term limits for members of Congress), and thereby put away all these state Birther Bills and Birther ballot challenges.

    Expelliarmus:
    The point is, state courts should not even have jurisdiction to venture an opinion; it is exclusively a federal matter.

  33. avatar
    Ballantine February 17, 2012 at 7:14 pm #

    Expelliarmus: The point is, state courts should not even have jurisdiction to venture an opinion; it is exclusively a federal matter.And the Constitution pretty much says that it is a matter for Congress, & not the courts, to decide. So to the extent that there is ambiguity about terms like “natural born citizen”, I think that the courts would deem that to be a political question to be decided by Congress.In any case, I don’t see any court-based challenge becoming ripe until after Congress has weighed in, and at that point I think that the only individual with standing would be either the disallowed President-elect, or the ambitious Vice-President Elect.

    You may be right but I have not thought much about this. The 9th Circuit seemed like it wanted to discuss the political question issue but Orly and Kreep were not up to the task. Several law reviews talk about the issue such as Professor Bonner’s, yet I don’t think any were very convincing on the subject. Has anyone seen a law review that deal with this subject in great detail?

  34. avatar
    Scientist February 17, 2012 at 9:13 pm #

    Expelliarmus: And the Constitution pretty much says that it is a matter for Congress, & not the courts, to decide. So to the extent that there is ambiguity about terms like “natural born citizen”, I think that the courts would deem that to be a political question to be decided by Congress.

    I agree.

  35. avatar
    Dr. Conspiracy February 17, 2012 at 9:22 pm #

    Let me raise three issues: political parties, primary elections and the electoral college.

    Expelliarmus: The point is, state courts should not even have jurisdiction to venture an opinion; it is exclusively a federal matter.

  36. avatar
    Expelliarmus February 17, 2012 at 9:59 pm #

    Dr. Conspiracy:
    Let me raise three issues: political parties, primary elections and the electoral college.

    Can you clarify what you are getting at?

  37. avatar
    John Potter February 17, 2012 at 10:15 pm #

    The states will always have some say, as it isn’t a national / federal election, but a simultaneous series of elections in the states and territories. Every official is elected at the state level, even the Pres and Vice Pres, by artifice of the electoral college.

  38. avatar
    Dr. Conspiracy February 18, 2012 at 12:02 am #

    Well, you said that presidential eligibility was a federal question and not the business of the states, and I agree that the Constitution vests in the Congress the determination of presidential eligibility after it tallies the votes of the electoral college.

    However, the Constitution does not envision political parties, nor presidential primaries (originally the electors weren’t popularly elected). The states and the state parties run the primary elections. There is a possibility that one primary candidate will say that he is harmed by having to compete with another candidate who ultimately can’t win because of eligibility. It would seem that there is some role for state courts in this situation.

    The other thing I would mention is that people don’t vote for President, they vote for electors. The states have made laws governing the conduct of electors (for example requiring them to vote for the candidate they are pledged to). Why can’t the state say “you can’t vote for an ineligible candidate?” Granted, the state can’t define eligibility, but they apparently have some say about what electors do. Any enforcement of those laws has to come at the state level and by necessity a finding of fact about eligibility would have to be made for a state court to judge competing claims or guilt.

    While any of the cases I describe might properly be removed to federal court, it seems to me that state courts have a role in starting the process.

    Expelliarmus: Can you clarify what you are getting at?

  39. avatar
    Scientist February 18, 2012 at 7:12 am #

    Dr. Conspiracy: There is a possibility that one primary candidate will say that he is harmed by having to compete with another candidate who ultimately can’t win because of eligibility. It would seem that there is some role for state courts in this situation.

    Perhaps where a bona fide candidate is involved (though I would think the fact that one’s opponent is ineligible would help one, not hurt one). However, neither Farrar, nor Swenson, nor Fair are candidates. If you and Expelliarmus crash your cars into each other, there is no doubt you and he can sue each other to your heart’s content. However, if the law allowed me to sue because I was distressed from witnessing the accident or delayed in my commute, that would be, in my opinion, a foolish law.