In form, Grinols v. Electoral College is an extremely important case. The 2012 Presidential Election hangs in the balance. Pending before the Court is a motion for a temporary restraining order that would stay the Constitution itself and could declare Barack Obama ineligible for the Presidency. In substance, it is just a crank with no legal standing spouting some conspiracy theories and asking for something that has no basis in law.
The motions are filed for the hearing January 3 on Orly Taitz’ motion for a temporary restraining order in the case of Grinols v. Electoral College. Taitz wants to stop Congress from certifying the the election on January 4.
Defendants filed notices of objection, and Taitz has replied. (See links to documents at the end of the article.) As I see it, there are five major issues in this case:
- Injunction against California defendants is moot
- Proper service of Defendants
- Representation of Obama by the US Attorney
- Standing of Plaintiffs
- Jurisdiction of the Court
The California Defendants provided a copy of the certification of the Electoral College vote that had been sent to the President of the Senate on or before Taitz filed her motion for a temporary restraining order. They say that it’s too late for the court to stop them from doing what’s already done. Taitz, amazingly, says it’s not moot, but I cannot explain her reasoning.
The Federal Defendants (Obama, Biden and the Congress) argue that service was defective, that the Federal Rules of Civil Procedure require service by “registered or certified mail.” Taitz claims that Federal Express is “registered or certified mail,” although she provides no precedent. FRCP 4 (g)(i)(1)(A)(ii)(B) says specifically:
send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney’s office
Do you think FedEx might file an amicus brief here? Sorry Orly, but this has been decided already in the 9th Circuit case of Magnuson v. Video Yesteryear. The Court, noting some ambiguity in the law, cited a number of cases on point including one from the 7th Circuit that concluded that “delivery by Federal Express is not ‘mail’ for the purposes of Rule 4.” This is somewhat complex and real attorneys might want to do a more careful analysis of this issue. Taitz also didn’t address the complaint to the “civil-process clerk.”
According to Taitz, she sued the President in his personal capacity (as a candidate) and that it is inappropriate for the US Attorney to represent him.
As defendant Obama was sued as a candidate for office and not as the US President, he was not entitled to be represented by the U.S. attorney’s office.
She has moved to strike everything in the US Attorney’s reply related to Obama. This objection, however, ties back to service. Taitz attempted to serve Obama through the US Attorney in Sacramento. There are only two possibilities here: either Taitz served the President in his official capacity through the US Attorney, or she did not serve him at all. I have some sympathy for Taitz’ objection to the US Attorney representing Obama, but I have no sympathy for her not serving the President with the complaint and expecting him to respond.
The issue of standing has been discussed at length since Berg v. Obama, and I won’t reiterate that here. Taitz argues that her minor party presidential candidates and her Electoral College candidates have standing. So far courts haven’t found standing in the various mixes of defendants, including presidential candidates who had no chance of winning.
Finally, to address the elephant in the room, Defendants argue that the federal courts cannot tell the Congress how to perform their legislative function. Taitz says that under her temporary restraining order, Congress is free to debate Obama’s eligibility, thereby fulfilling their role under the Constitution; she just wants to preclude them from doing anything that results in Obama becoming President again. Taitz cites one case of a TRO, Hedges et al v Obama et al 12-cv-00331. She argues that since the Courts can declare an act of Congress unconstitutional, they can declare a presidency unconstitutional. What Taitz didn’t find was any precedent where a Court restrained Congress from carrying out its legislative functions.
I think what Taitz is saying is that the Court doesn’t have the jurisdiction to stop Congress from certifying the election, but that it has the power to delay it, decide Obama’s eligibility, and then inform Congress of its decision so that Congress can be informed before they certify the election.
This leaves one loose end, and that is the court’s jurisdiction to enjoin Barack Obama from taking the oath of office. Taitz cites Miller v. Campbell 3:10-cv-00252. Taitz says: “Murkowski was enjoined from taking the oath of office as the U. S. Senator until the constitutional issues were resolved.” As far as I can tell from reading about the case, Taitz is lying. The Court did enjoin the certification of the election pending decisions on the counting of certain write-in votes, but it did not enjoin Murkowski from taking the oath of office.
Orly Taitz’ briefs are getting better, but no amount of lawyering can get around the fact that she’s wrong on the law.
Grinols case documents: