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First v Second: the Voeltz complaint

Thanks for a comment in email comparing the “First Amended Complaint” and the “Second Amended Complaint” in the Voeltz v. Obama election challenge in Florida.

I downloaded the two files from Scribd in PDF format. Because these PDFs were created from the original documents and not scanned images, it was easy to save them as Microsoft Word .doc files and then run Word’s comparison utility to create a marked-up version showing what changed.

One of the things throughout the document is that where it previously said “elected” it now says “elected and nominated” reflecting Klayman’s contention that the 2012 Presidential Preference Primary (which was not actually held) “elected” Barack Obama as Florida’s Nominee for President.

Reading the Florida statutes, it seems clear to me that the winner of the Preference Primary is consistently described as a “candidate for nomination” and I think, and this is the position of the Florida Secretary of State, that the election contest statute does not apply to the Preference Primary.

While it seems clear from reading the law that there are no obvious grounds for the Voeltz suit in the election statute, I still have a common sense reservation. Let’s say that the allegations in the case were not a nut-case conspiracy theory about Barack Obama, but good old election fraud – the votes were miscounted, ineligible persons voted and so on. One would think that such shenanigans ought to be redressable somehow. Because of the unique nature of the Preference Primary, election fraud might be addressed outside the court system, by the State Democratic Convention, the individual delegates, or the national convention. No one is elected yet. Also someone, an opposition candidate, could claim damages and sue outside the election contest provision.

Still, if Judge Lewis should decide, based on some reasoning beyond what I have seen, that the Presidential Preference Primary is an election, that a Primary that didn’t happen is also an election, and that the result can be challenged under Florida law, then we pass to the question of whether the allegations in this suit are sufficient to sustain a cause of action. I don’t think they are. While elections and nominations in Florida may be challenged on the basis of the eligibility of the candidate, I would assert that there is no eligibility requirement in a Preference Primary, which is solely a mechanism for Party members to express their preference. One does not have to be eligible to be preferred. I support the notion that political parties are not bound by Article II of the constitution in deciding who they want to run for President. I think we all agree that an ineligible person may not serve as President of the United States, but I see nothing in the Constitution that precludes such a person from running.

The other major change in the “Second Amended Complaint” is the addition of “declaratory judgment” as relief. As you know, I have not yet graduated from the Obama Conspiracy Theories Online Law School, and I haven’t studied declaratory judgments yet. I get the impression that they appear a lot in patent litigation, and basically one party wants the court to declare that they have a right of some sort.

In this case, Klayman asks the court to declare that the Secretary of State of Florida has a duty to verify the eligibility of candidates for President, and second that Barack Obama isn’t eligible. The courts so far (and there are few examples) seem to be saying that there is no role for the States in determining presidential eligibility, and if this is so and Lewis agrees, then Klayman will not get his declaratory judgment either.

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29 Responses to First v Second: the Voeltz complaint

  1. avatar
    richCares June 21, 2012 at 10:02 am #

    This whole case is based on Corsi’s desire to swiftboat the president, it is, in effect, a negative campaign add and has nothing to do with Obama’s eligibility. The courts should not be used in this fashion. Klayman and Corsi are 2 pods in a bucket of pee.

  2. avatar
    gorefan June 21, 2012 at 10:50 am #

    “One would think that such shenanigans ought to be redressable somehow.”

    At the end of the 2008 primaries, the Democratic National Committee had a televised meeting to discuss the case of Florida and Michigan delegates. It got pretty heated.

    I would image that in the case of a contested candidate, they would hold a similar meeting.

  3. avatar
    Lupin June 21, 2012 at 11:03 am #

    richCares: This whole case is based on Corsi’s desire to swiftboat the president, it is, in effect, a negative campaign add and has nothing to do with Obama’s eligibility. The courts should not be used in this fashion. Klayman and Corsi are 2 pods in a bucket of pee.

    I couldn’t agree more. There is, in fact, a whiff of third-world electioneering about the tactic, which goes beyond simply badmouthing your opponent.

  4. avatar
    JPotter June 21, 2012 at 11:04 am #

    gorefan: It got pretty heated.

    Heated discussion? How about some heated irons? 😉

  5. avatar
    realist June 21, 2012 at 11:28 am #

    Next up? Motions to dismiss the Second Amended Complaint.
    At least I assume defendants will do so.

  6. avatar
    JoZeppy June 21, 2012 at 11:54 am #

    Actually, it’s not necessary. The Second Amended Complaint is not properly before the court. Persuant to Rule 1.190 of the Florida Rules of Civil Procedure, a party may amend a pleading once before a responsive pleading is served, otherwise he must ask leave of the Court to file. So got his first amended complaint in, but now he has to move for leave to file (which I’m guessing defendants would oppose as amending would be futile as it still does not state a claim).

    realist: Next up? Motions to dismiss the Second Amended Complaint.
    At least I assume defendants will do so.

  7. avatar
    donna June 21, 2012 at 11:59 am #

    realist: Next up? Motions to dismiss the Second Amended Complaint.
    At least I assume defendants will do so.

    their proposed orders are due on monday

  8. avatar
    The Magic M June 21, 2012 at 12:29 pm #

    > I haven’t studied declaratory judgments yet. I get the impression that they appear a lot in patent litigation, and basically one party wants the court to declare that they have a right of some sort

    Declaratory judgment usually requires an interest of the moving party that goes beyond “I would like the court to state clearly”.

    For example, I don’t have standing to get a declaratory judgment against you that I don’t owe you $5,000 *unless* you were publically claiming I did and that you were considering to sue me.

    Likewise, you cannot ask the court for a DJ simply because you are curious what the legal lowdown on a certain issue is (as in “I would like the courts to define NBC once and for all”, “I really need to know if killing a pregnant woman is double homicide” etc.).

    Here, the moving party simply “wants to know” what certain duties of a certain official are. I don’t see how that passes the standard for declaratory judgments (not being a lawyer and especially not a US lawyer, I don’t know the appropriate legal terms here).

    Courts simply don’t work as bodies of legal advice for “inquiring minds”. They settle actual cases, standing and substance provided.

  9. avatar
    realist June 21, 2012 at 12:59 pm #

    JoZeppy:
    Actually, it’s not necessary.The Second Amended Complaint is not properly before the court.Persuant to Rule 1.190 of the Florida Rules of Civil Procedure, a party may amend a pleading once before a responsive pleading is served, otherwise he must ask leave of the Court to file.So got his first amended complaint in, but now he has to move for leave to file (which I’m guessing defendants would oppose as amending would be futile as it still does not state a claim).

    Yep, I get that they did not file a motion for leave, nor is there any indication it was granted, though at the hearing when Klayman indicated he would expedite filing a motion for leave to amend, the judge said it wasn’t necessary, that he’d made a note of it (or words to that effect), so IMO a “little” ambiguous as to whether he could amend and not file a motion for leave or whether he could go ahead and amend or not.

    Perhaps a motion objecting due to no motion for leave in addition to motion for dismissal. We’ll certainly know soon. 🙂

  10. avatar
    realist June 21, 2012 at 1:01 pm #

    donna:
    realist: Next up? Motions to dismiss the Second Amended Complaint.
    At least I assume defendants will do so.

    their proposed orders are due on monday

    Yep, I know that. Still, if the SAC is “properly before the court” (and IMO that’s a little ambiguous at this time) they do have a right and I assume will move to dismiss it, at the very least.

  11. avatar
    JoZeppy June 21, 2012 at 1:23 pm #

    I’ve been trying to straighten out that ambiguity as well. The minutes of the hearing make no mention of granting leave to file. I only gone back and reviewed other people’s observations, and trying to remember my own, but as far as I can tell, the court didn’t specifically grant leave, but said that it would unless it couldn’t be amended, which of course would mean the defendants would have the opportunity to oppose. My only thought is perhaps the court is stewing whether there is any possibility that there is something he could plea that would state a claim,. i.e., if there was actual evidence, would there be a case. If after reviewing briefs and the arguments, he concludes, no, then there can be no amendment. If he concludes yes, perhaps he dismisses the case without prejudice to refile, thus granting leave to file the second amended complaint. That’s the best I can piece out of it.

    realist: Yep, I get that they did not file a motion for leave, nor is there any indication it was granted, though at the hearing when Klayman indicated he would expedite filing a motion for leave to amend, the judge said it wasn’t necessary, that he’d made a note of it (or words to that effect), so IMO a “little” ambiguous as to whether he could amend and not file a motion for leave or whether he could go ahead and amend or not. Perhaps a motion objecting due to no motion for leave in addition to motion for dismissal. We’ll certainly know soon.

  12. avatar
    tes June 21, 2012 at 4:37 pm #

    JoZeppy: I’ve been trying to straighten out that ambiguity as well. The minutes of the hearing make no mention of granting leave to file.

    That’s because there was no grant of leave to file and, in fact, Judge expressly reserved such a ruling.

    At end of hearing – at about 1:01 –
    Klayman says “we’ll be filing expeditiously a motion to amend.
    Judge responds, “Ok .. uhm .. you don’t need to file a motion, I’ve made a note of it … that you’d like to be able to amend if ..and so I would only not do that if I thought there was nothing you could do to amend.”
    (Informal transcriptions, obviously)

    In other words, Judge accepted “oral” motion and said that he would RULE on it — the request/motion — and that he would grant it UNLESS he determined that there was nothing they could do to save complaint.

    He has not made that determination yet.

  13. avatar
    G June 21, 2012 at 4:38 pm #

    Agreed! Well said.

    richCares:
    This whole case is based on Corsi’s desire to swiftboat the president, it is, in effect, a negative campaign add and has nothing to do with Obama’s eligibility. The courts should not be used in this fashion. Klayman and Corsi are 2 pods in a bucket of pee.

  14. avatar
    linda June 21, 2012 at 5:49 pm #

    Thanks for that clarification. When I listened to it, I replayed that part in an effort to understand what he meant and was still unsure.

    tes: In other words, Judge accepted “oral” motion and said that he would RULE on it — the request/motion — and that he would grant it UNLESS he determined that there was nothing they could do to save complaint.

    He has not made that determination yet.

  15. avatar
    misha June 21, 2012 at 5:53 pm #

    Lupin: There is, in fact, a whiff of third-world electioneering about the tactic

    It is no longer a whiff. Witness the legislation passed to subvert the Voting Rights Act. Florida’s governor has told the Justice Department to go away.

    This confirms my contention: liberals believe in the ballot box. Conservatives believe in legislating away their opponents.

  16. avatar
    G June 21, 2012 at 9:56 pm #

    To an extent. The evidence of their actions on such matters so far leads me to strongly suspect that they ONLY support such legislation when it works “in their favor” AND that they have no qualms cheating or breaking their own laws and rules, when that suits them too… as that unfortunate but seemingly true expression states, IOKIYAR…

    So, what I think it really comes down to is that they view themselves as ABOVE the law and only use the law when they find it “convenient” to control and subvert others to their will…

    misha: Conservatives believe in legislating away their opponents.

  17. avatar
    Lupin June 22, 2012 at 3:52 am #

    G: So, what I think it really comes down to is that they view themselves as ABOVE the law and only use the law when they find it “convenient” to control and subvert others to their will…

    I’m prone to remind my “rule of law” friends in the US that everything Pinochet did in Chile was ratified by the Chilean supreme court. Carting away lefties in trucks & disappearing them was perfectly legal. For a country that seems so obsessed with the Law, I find the US a remarkably lawless society. But perhaps the two go together.

  18. avatar
    JPotter June 22, 2012 at 4:57 am #

    Lip service to the law …. using the law as a smoke screen and a cover for illegal / unethical behavior. And, as Lupin notes re: Pinochet, unjust laws are still laws. Manufacture a state of emergency and you’re off to the races. It’s an old script.

  19. avatar
    misha June 22, 2012 at 7:50 am #

    JPotter: Manufacture a state of emergency and you’re off to the races. It’s an old script.

    Lupin: For a country that seems so obsessed with the Law, I find the US a remarkably lawless society.

    Create WMDs and a nukular bomb from whole cloth, then invade so Cheney’s cronies could get their paws on oil. See Iran, 1953.

    Another old script.

  20. avatar
    realist June 22, 2012 at 2:21 pm #

    Well, now we know what the defendants thought as to the filing of the Second Amended Complaint.

    New Docket Entry but not available for download yet. Should be soon and I am sure will be at Jack’s Ryans within a short time of being able to download. 🙂

    6/22/2012 JOINT MOTION TO STRIKE UNAUTHORIZED SECOND AMENDED COMPLAINT

  21. avatar
    donna June 26, 2012 at 3:19 pm #

    06/25/2012 [PROPOSED] MEMORANDUM OPINION from klayman

    http://nativeborncitizen.wordpress.com/2012/06/26/fl-voeltz-v-obama-various-motions-and-transcript-of-hearing/

  22. avatar
    bgansel9 June 26, 2012 at 4:27 pm #

    donna: 06/25/2012 [PROPOSED] MEMORANDUM OPINION from klayman

    I’m curious as to whether he had one hand available or two when he was double checking his spelling, and, also again, later, when reading it for the 50th time just because…

  23. avatar
    Keith June 26, 2012 at 7:22 pm #

    Lupin: I’m prone to remind my “rule of law” friends in the US that everything Pinochet did in Chile was ratified by the Chilean supreme court. Carting away lefties in trucks & disappearing them was perfectly legal. For a country that seems so obsessed with the Law, I find the US a remarkably lawless society. But perhaps the two go together.

    In Papua New Guinea, the Prime Minister is considering charging the Supreme Court with sedition.

    There was recently a Constitutional crisis there where the Prime Ministership was in doubt. There was for a time two supposed Prime Ministers claiming sole legitimacy: the former PM had been voted out by Parliament and was disputing that election. Both were trying to get the support of the Police and Military, the new one won that struggle, but then lost in the Supreme Court. Finally Parliament voted again, properly and legally this time without argument, and the new PM has taken over and is threatening the Supremes.

    Fun times in PNG.

  24. avatar
    donna June 26, 2012 at 7:34 pm #

    hmmmm

    what does this mean?

    6/26/2012 NOTICE OF HEARING

    http://cvweb.clerk.leon.fl.us/process.asp?template=dockets&addQuery=real_case.case_id=%2758101756%27

  25. avatar
    JPotter June 26, 2012 at 8:31 pm #

    Lupin: For a country that seems so obsessed with the Law, I find the US a remarkably lawless society. But perhaps the two go together.

    Lupin, flipping through a civics text from 1923, I found this discussion question:

    “Europeans say we are the most lawless people in the civilized world. Is that true? Whether true or not, is it complimentary?”

    The idea goes back awhile! America is a relatively ‘instant’ country … expanded quickly into vast frontiers, a place with no memory, a place for escape. Americans have always been trying to escape gov’t!

    ‘fess up, Lupin, lawless is code for uncivilized, isn’t it? And deep down, Europeans are just jealous? 😉

    America may be the most lawless, but Australia is the most dangerous. (doesn’t that blog look familiar? 😛 )

  26. avatar
    donna June 26, 2012 at 8:32 pm #

    6/26/2012 PLAINTIFFS OPPOSITION TO DEFENDANTS JOINT MOTION TO STRIKE UNAUTHORIZED (SIC!) AMENDED COMPLAINT

  27. avatar
    Zachary Bravos July 1, 2012 at 10:38 am #

    The original complaint was for declaratory judgment. The first amended complaint deleted that request and now Klayman is seeking to resurrect a legal ground that has already been abandoned. This is simply bad practice that he is trying to cover up with spin. His first amended complaint could have included a request for declaratory judgment as an alternate request for relief. This will go nowhere.

  28. avatar
    JPotter July 1, 2012 at 11:08 am #

    Zachary Bravos: This will go nowhere.

    It already hasn’t, Lewis round-filed the 2AC last Friday, according to Klayman. Wish there was a transcipt of that conference! Did the defense put in a proposed order? Or decide not to after Klayman went off-script? What’s the next step?

  29. avatar
    linda July 1, 2012 at 4:55 pm #

    I would like to read the transcript, too. There is not a proposed order by the defense on the Court’s website. On a thread here (I forget which one), I believe it was one of the attorneys who said Judge Lewis asked the parties to submit their orders directly to him and Klayman erred in filing his. Sounded good to me. Judge Lewis said he would rule quickly on the MTDs, I bet it is this week.

    JPotter: It already hasn’t, Lewis round-filed the 2AC last Friday, according to Klayman. Wish there was a transcipt of that conference! Did the defense put in a proposed order? Or decide not to after Klayman went off-script? What’s the next step?