Orly Taitz has obtained an unofficial transcript of the oral arguments from the 9th Circuit Court of Appeals in the case of Peta Lindsay, et al v. Debra Bowen. Like 1968 Peace and Freedom Party presidential candidate Eldridge Cleaver1, Lindsay was too young to become President of the United States, and like Cleaver, she was refused a place on the California Ballot because of her age. The lower court dismissed Lindsay’s lawsuit.
Appellants argue that the US Constitution provides that under the 20th Amendment only Congress may decide presidential qualifications, the eligibility of a president-elect to become president. Under the political question doctrine, a court would decline to intervene when the Constitution explicitly assigns a role to another branch of government or to the democratic process. The State of California argues that Congress’ role in deciding eligibility is not exclusive and that case law gives states broad authority in the conduct of elections, including the power to prevent a ballot from being cluttered by frivolous candidates. Both parties cite Elections Code Section 6720, that says:
6720. The Secretary of State shall place the name of a candidate upon the Peace and Freedom Party presidential preference ballot when the Secretary of State has determined that the candidate is generally advocated for or recognized throughout the United States or California as actively seeking the presidential nomination of the Peace and Freedom Party or the national party with which the Peace and Freedom Party is affiliated.
Appellants say this requires the Secretary of State to place the Peace and Freedom Party candidate on the ballot. Bowen argues that an obviously ineligible candidate cannot be considered “generally advocated.”
Interestingly, while this case is not about President Obama, Obama and John McCain appear in the oral argument, and the word “birther” is peppered throughout, used both by the Parties and the Court. Lindsay’s attorney Robert Barns (who I though handled himself well) wanted to cast the State’s position as being like birther arguments and said that if California’s Secretary of State could refuse ballot position to Lindsay, she could equally well have made a judgment that would have kept Obama or McCain (born outside the US) off the ballot; citing Judge Alsup in Robinson v. Bowen, he said such individual judgments by 50 states would wreak chaos. On the other hand Bowen’s counsel Alexandra Gordon wanted to draw a sharp distinction between this case, where Lindsay’s ineligibility was undisputed, with the Obama and McCain questions. Gordon made one comment that might warm the hearts of birthers when she said:
I think we can all agree that whether or not President Obama is a US Citizen is very much in dispute.
Orly Taitz was more interested in something Judge Kozinski said:
Say … some party nominated a dog for President. I take it the Secretary of State would have authority to keep that off the ballot, right?
Attorney Barnes thought this question, too, should be decided by Congress. Taitz considers this making “minced meat” of the political question doctrine. I see it as sharp questioning.
I am very interested in the outcome of the case, as it presents the question whether or not any state can exclude a candidate for President from their state’s ballot by reason of constitutional ineligibility.
Fact-checking the transcript, I found two errors:
Attorney Barnes misspoke when he said that Eldridge Cleaver would have reached age 35 “within the time of the presidential election period.” Cleaver, born August 1, 1935, would only have been 33 on Inauguration Day.
Judge Kozinski said that the California Secretary of State at the time Cleaver ran for president was probably “March Fong Yu” (sic). That’s not even close. The California Secretary of State in 1968 was Frank M. Jordon.
Listen to the oral argument:
- “May states exclude Presidential candidates for ineligibility?” – Obama Conspiracy Theories
1I had always considered the Cleaver v. Jordon case to be precedent, but according to the transcript, the appellate opinion was unpublished. I saw this citation: 393 U.S. 810 [21 L.Ed.2d 87] in Keyes v. Bowen. (“L.Ed.2d” refers to a private case reporter, the Lawyers Edition, second series.) I think that citation is to a denial of Cert by the US Supreme Court.