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Winnowing the Grinols 2

Don’t ask me what the title means—I just thought it sounded snappy. The article is about Orly Taitz’ appeal in the case of Grinols v. Electoral College.

The case, involving several issues regarding the 2012 election, was dismissed April 22, 2013 by federal Judge Morris England after hearing oral arguments on the motion to dismiss. You can read more about the grounds for dismissal in my article, “Things heat up for Monday face-off in Grinols.” When a judge dismisses a case like this, it means that the case cannot proceed as a matter of law. Taitz’ only recourse in an appeal is to argue that the judge made an error in the application of the law and should she win the appeal, it would mean that the case would be sent back to the lower court for trial.

You can read her 63-page opening brief filed October 29 for yourself. So what is Taitz’ rationale for the appeal (besides her general tendency to refuse to take “no” for an answer)?

Taitz raises 13 issues in the appeal, which I will catalog here:

  1. The Court shouldn’t have allowed the US Attorney to file a response on behalf of Congress, because some Congressmen weren’t notified about the suit. Taitz says that the “U.S. attorneys defrauded the court.”
  2. The Court should have issued a default judgment against President Obama because he didn’t file a timely response. The issue here is whether he was properly served (and he wasn’t).
  3. The Court should not have said that it lacked jurisdiction (Taitz cites Peta Lindsey [sic] v. Bowen). Peta Lindsay v. Bowen did not involve the court ruling on the eligibility of a candidate. She also cites Cleaver v. Jordan and Fulani v. Hogsett. None of the cases are relevant.
  4. The Court shouldn’t have said the case was moot. Taitz cites Keyes v. Obama where a case was brought on Inauguration Day. The problem with relying on Keyes is that the court of appeals stated that after the election plaintiffs no longer had any standing as candidates, leaving Taitz with no plaintiffs with standing.
  5. The Court should have decided that all the plaintiffs had standing, not just Judd (who had been a candidate).
  6. The Count should have ruled on Taitz’ claim that over one million votes in California were from defective registrations. No explanation is given why the Court should have done this.
  7. Continuation of 6.
  8. The Court should not have followed what other courts did, and not rule on Taitz’ social-security number claims.
  9. The Court should not have found that December 12 is before December 17 (she thinks they did, but …).
  10. The Court should have let Taitz file more stuff
  11. The Court should have recognized that Barack Obama does not legally exist. (There is some guy named Soetoro, Soebarkah.)
  12. See 13.
  13. The Court should have decided Obama can’t be President because his Selective Service application doesn’t have a visible year “19” on it.

In my analysis of the case, there is very little legal substance to it. The most important point is the first one where Taitz claims that the Court failed to follow precedent when it decided that it lacked jurisdiction to rule on a presidential candidate’s eligibility. Taitz is wrong that her citations are on point. The Cleaver case was not in federal court and none of the cases involved the court ruling on eligibility. Gary Kreep, in the appeal of Keyes v. Bowen, did a better job than Taitz, arguing rather that there is no precedent for not deciding the issue in court, and that no statute specifically grants to Congress the right to decide eligibility.

Taitz repeatedly claims that the court “ignored the evidence,” but of course evidence really isn’t at issue when ruling on a motion to dismiss.

The appellees have asked for more time to respond, and their responses are due by December 30, 2013.

Commentary

The only interesting thing about the case is one judicial question that I do not think has ever been answered definitively, namely does any court have jurisdiction to decide on the eligibility of a presidential candidate? Taitz bollixed her citations in favor of the proposition that courts can decide who is eligible and who is not, and keep them off the ballot. The precedent of Robinson v. Bowen from the Northern District of California seems on point for the other side. Judge Alsup wrote:

Arguments concerning qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress. The members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates. Therefore, this order holds that the challenge presented by plaintiff is committed under the Constitution to the electors and the legislative branch, at least in the first instance. Judicial review — if any — should occur only after the electoral and Congressional processes have run their course.

Robinson was not appealed. The Ninth Circuit dodged the political question argument in its decision in Keyes | Barnett v. Obama, affirming the dismissal, but on other grounds.

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16 Responses to Winnowing the Grinols 2

  1. avatar
    Daniel November 20, 2013 at 6:01 pm #

    One can only hope it’s because it will take that long to do a complete accounting of costs?

  2. avatar
    Bonsall Obot November 20, 2013 at 6:34 pm #

    The post title is evocative; it reminds me that anti-birthering boils down to nothing more than Watching the Defectives.

  3. avatar
    nbc November 20, 2013 at 8:00 pm #

    Orly still forgets an important point. In Cleaver the SOS took action on her own. Under CA law however, the SOS is not _required_ to take action and thus no mandamus can be used.

    The fact that in Cleaver the SOS intervened has no relevance to her case.

  4. avatar
    JPotter November 20, 2013 at 8:28 pm #

    “Winnowing the Grinols” … great title! Makes perfect sense and could be applied to any coveage of any birther court action. Winnowing … separating grain from chaff. In these cases, more like separating chaff from chaff, on the off chance a single grain may have fallen in.

    200+ cases … still looking for that first grain …

  5. avatar
    Dr. Conspiracy November 20, 2013 at 8:37 pm #

    Unfortunately, it appears I used it before 🙁

    http://www.obamaconspiracy.org/2012/12/winnowing-the-grinols/

    JPotter: “Winnowing the Grinols” … great title!

  6. avatar
    JPotter November 20, 2013 at 8:43 pm #

    Dr. Conspiracy: Unfortunately, it appears I used it before

    Can’t improve on perfection 😀

  7. avatar
    Jim November 20, 2013 at 8:53 pm #

    Dr. Conspiracy:
    Unfortunately, it appears I used it before

    No problem…birthers have been using the same evidence for over 5 years now, at least you’re showing success!!! 😆

  8. avatar
    Andrew Vrba, PmG November 20, 2013 at 8:57 pm #

    Now I’m hungry for granola for some reason…

  9. avatar
    The Magic M November 21, 2013 at 4:19 am #

    JPotter: “Winnowing the Grinols” … great title!

    I also liked “bollixed”, had never heard that word before and had to look it up. 😉

    The only interesting thing about the case is one judicial question that I do not think has ever been answered definitively, namely does any court have jurisdiction to decide on the eligibility of a presidential candidate?

    IMHO, and IANAL, this breaks down as follows:

    There is no basis for the claim that a court can find a *candidate* ineligible and keep him off the ballot, unless state law governing the ballots specifically allows it (if it imposes a duty on the SOS, executing that duty can be forced via the courts, I believe).

    If however a potentially ineligible candidate has been voted on, I don’t see on what basis a court could enjoin the Electoral College from voting for him or for Congress to certify his votes (because I believe SCOTUS already ruled it cannot proactively enjoin Congress from enacting a law that is against the Constitution, by the same reasoning it cannot enjoin Congress from making any other decision that somehow violates the Constitution; it can only act after the fact).

    So the only point where I think the courts could weigh in is *after* certification of the votes – just like SCOTUS can strike down an unconstitutional law, it could strike down an unconstitutional certification of votes (I’m not legally skilled enough to defend this position in court, but my logic is that it’s a reasonable analogy).
    But only SCOTUS would have that authority (just like a lower court can *believe* a law is unconstitutional, but it cannot void the law, a lower court could “believe” Obama is ineligible but could not remove a sitting President or enjoin Congress from voting for him).

    Given that SCOTUS has denied every birther case brought before it (and refusal to grant cert *is* a decision, not a failure to make one), we can safely assume it considers (and, in effect, has ruled) Obama eligible.

    Those who claim Congress is the sole arbiter of eligibility are in error, IMHO, because that would allow Congress to overrule the Constitution (w/o amending it properly) without any legal recourse. But just like Congress can make no law violating the Constitution (that cannot be reviewed by SCOTUS), I believe it cannot make any other such decision that evades judicial review.
    The birther problem is that they try to take the matter to some lower state/federal court instead of SCOTUS where it belongs (and tellingly, they never took Ankeny to SCOTUS because they’d be hard-pressed to spin a SCOTUS affirmation as *not* affirming the explicit NBC decision.)

  10. avatar
    Dr. Conspiracy November 21, 2013 at 9:34 am #

    One could say that the Supreme Court’s refusal to intervene is an indication that the justices believe that the issue of presidential eligibility for persons born in the United States of alien parents is settled, and that there is no division on this question in the lower courts.

    The question of Obama’s birthplace and claims of id fraud was not at issue in the dismissal of cases against Obama–those were generally questions of standing. So one might conclude that the Supreme Court justices found the issues raised over standing were also settled and that there was no division in the lower courts over this question.

    I do not, however, read into the court’s silence any opinion as to where Obama was born or the authenticity of his birth certificate, social-security number or Selective Service registration.

    The Magic M: Given that SCOTUS has denied every birther case brought before it (and refusal to grant cert *is* a decision, not a failure to make one), we can safely assume it considers (and, in effect, has ruled) Obama eligible.

  11. avatar
    The Magic M November 21, 2013 at 10:00 am #

    Dr. Conspiracy: I do not, however, read into the court’s silence any opinion as to where Obama was born or the authenticity of his birth certificate, social-security number or Selective Service registration.

    I think SCOTUS may be the only court who would consider it its duty to hear a case that may be formally deficient if it considers its subject matter sufficiently important (the infamous “the judge should sua sponte do this and that” Taitz argument).
    I don’t think that if SCOTUS considered birtherism somehow “possibly valid”, they would hide behind technicalities (the “they’re evading the issue” claim).
    While it’s correct to say SCOTUS may not have implicitly ruled on the authenticity of specific documents or specific events, I think it’s still correct to say if SCOTUS had *any* ineligibility concerns, it would have granted cert, so at least you could say that SCOTUS has “ruled Obama eligible” in absence of plausible evidence to the contrary (in other words, unless birthers come up with some *real* proof, denial of cert can safely be interpreted as “ruling based on the present evidence that Obama is eligible”).

  12. avatar
    Dr. Conspiracy November 21, 2013 at 11:34 am #

    In which case?

    The Magic M: I think it’s still correct to say if SCOTUS had *any* ineligibility concerns, it would have granted cert

  13. avatar
    Rickey November 21, 2013 at 4:09 pm #

    In my opinion the only way to get an eligibility case before POTUS would be if a candidate were denied a position on the ballot on the grounds that he or she is not a natural born citizen.

    For example, let’s say that Ted Cruz runs for President in 2016 and a state denies him a spot on its primary ballot because he was born in Canada. He would have a particularized injury and most likely would have standing to sue to have his name put on the ballot. Such a case might well be accepted on a fast track basis by SCOTUS because if one state rejected him others might follow, so SCOTUS would see the need to put the question to rest.

  14. avatar
    The Magic M November 22, 2013 at 9:22 am #

    Dr. Conspiracy: In which case?

    In just about any birther case that came before them. Since there is no appealing SCOTUS rulings, SCOTUS can basically do as it pleases and waive any procedural issues (even standing) if they actually thought there was an ineligible President that had to be dealt with.

  15. avatar
    Dr. Conspiracy November 22, 2013 at 9:46 am #

    I asked “which case” for a reason. I think your hypothetical SCOTUS review is hard to justify based on any real case and any real question that came before the court.

    Standing is not a procedural issue, it is a Constitutional issue. The Supreme Court cannot “waive” the Constitution and claim a jurisdiction that the Constitution does not give it. I’m not going give credence to an argument that requires the US Supreme Court to “go rogue.”

    The Magic M: In just about any birther case that came before them. Since there is no appealing SCOTUS rulings, SCOTUS can basically do as it pleases and waive any procedural issues (even standing) if they actually thought there was an ineligible President that had to be dealt with.

  16. avatar
    Paul Pieniezny November 23, 2013 at 8:04 am #

    Dr. Conspiracy: Standing is not a procedural issue, it is a Constitutional issue. The Supreme Court cannot “waive” the Constitution and claim a jurisdiction that the Constitution does not give it. I’m not going give credence to an argument that requires the US Supreme Court to “go rogue.”

    Agreed. Ankeny was the only case where the court decided on the merits AND assumed the birth certificate was genuine. Surprise, surprise, no birther lawyer thought of appealing it to SCOTUS, to check the truth of the Indiana affirmation that Vatel really, really was NOT the law of the land.