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Closing the barn door

Hearing today!

Orly Taitz filed a motion yesterday, December 19, for a temporary restraining order (TRO) in the Eastern District of California federal court. She wants the Court to enjoin several parties, the first 3 of which I list briefly here:

  1. Enjoin the Secretary of State and Governor from certifying the Certificate of Ascertainment.
  2. Enjoin the Electoral College from tallying their votes.
  3. Enjoin the Governor of California from forwarding the Certificate of Electoral Vote to the President of the Senate

It’s a little late. The governor’s Certificate of Ascertainment must be done and forwarded to the National Archives before the Electors vote on December 17. The tallying of the votes was done on December 17 (Obama got all 55 from California).

I don’t see that it is the Governor of the state who is responsible for transporting the tally of the votes to the President of the Senate for counting on January 6, but in any case according to the National Archives, the distribution of the 6 copies of the Certificate of Ascertainment and the votes must be done “immediately.” Since the copies have already been received by the Archives, one reasonably presumes that the copy for the President of the Senate has been sent as well.

Apparently Orly doesn’t want these facts known:

comment left at Taitz web site about the vote already having been tallied. Comment in moderation.

In addition, Orly wants to the court to enjoin the “President of the Senate from presenting the Certificates of the Electoral Vote to the U.S. Congress,” “U.S. Congress from confirming the elections results” and “Defendant Barack Hussein Obama from taking the oath of office as a U.S. President on the inauguration day.” It must take monumental chutzpah1 to do something like that.

Under the Constitution, it is the Congress, not the Judiciary who decides the election results. The Judiciary has no power to intervene. Any high school civics student should know that (of course Orly never had a high school civics class in the US).

According to Taitz [link to Taitz web site] there is a hearing scheduled for today before Chief Judge England on her TRO. I wish I could be there.2


1First time I ever used that word in a sentence.

202:00 PM in Courtroom 7 (MCE) assuming that there will be any oral arguments.

California electoral vote certification forged?

One of the certain proofs that the birthers give for forgery is that certain parts of Obama’s long form birth certificate show a mix of black and white, and gray scale for a signature. Here’s a section from the Certificate magnified:

Detail of Stanley Ann Dunham signature on Obama's birth certifcate

You can see how some of the signature is in gray scale, and some is absolutely black.

Now, look at the Certificate of the California Electoral College vote from the web site of the US National Archives and Records Administration, particularly on signature number 42 magnified:

Detail from 2012 California Electoral College signature.

Wowzers. It’s that same mix of grey scale and black. I guess this means that Romney really won California, and National Archives substituted a forged computer-generated certificate of the vote in place of the real one California sent. Apparently the National Archivist was smart enough to tell the scanner to get rid of the halos.

Dialog showing "Halo Removal" option

Taitz: Supreme to rule “any day”

There is a story about a little girl who was an optimist. The girl wanted a pony for Christmas and was confident she would get one. Her parents, thinking her optimism was so extreme as to be unhealthy, decided to cure her. On Christmas morning the little girl went outside to find a huge pile of manure with a bow on it. The girl grabbed a shovel and started digging frantically. When asked what she was doing, she replied: “with all this manure, there’s sure to be a pony here somewhere.”

I was reminded of that story of irrational optimism upon receipt today of Orly Taitz’ latest media blaster email, the title of which is:

Justice Anthony Kennedy in the Supreme Court of the U.S. is set to rule any day on Noonan, Judd, MacLeran v Bowen filed December 11, 2012, 6 days before the electoral college meeting

I don’t know why it takes 6 days for her selected articles to appear in my mailbox, but this one from December 13 is particularly appropriate, now that the State of California has already certified and sent in its 55 electoral votes for Barack Obama.

Orly is right, though. Justice Kennedy was anxious to review the case.

Application denied by Justice Kennedy

Electoral College votes without birther impediment

Despite a handful of ill-timed birther lawsuits directed at the Electoral College or select members of it, the votes were cast yesterday without any impediment from the birthers. I would cite this as a pure victory for sanity over insanity except that it was marred by the remarks of three Republican party officials and electors from Arizona, reports USA Today. State GOP Chairman Tom Morrissey said:

I’m not satisfied with what I’ve seen. I think for somebody in the president’s position to not have produced a document that looks more legitimate, I have a problem with that.

He was ignoring his own Arizona Secretary of State’s demand for and receipt of a verification from Hawaii of the place of Obama’s birth.

image

The Huffington Post coverage of this story also reported an Orly Taitz lawsuit in Arizona:

The comments of the Arizona Republicans comes a week after birther queen Orly Taitz filed a lawsuit in federal court in Arizona against Vice President Joe Biden and Congress to block Biden from counting the electoral vote.

However, there is no case in Arizona in the federal PACER system in which “TAITZ” is a party, and only two unrelated cases for “BIDEN.”

Read more:

Suing Congress

I am reminded of Leo Donofrio’s memorable comment: “you can’t save the Constitution by destroying it,” when reading Orly Taitz’ latest lawsuit in California that attempts to get a court to meddle with Congress certifying the 2012 election, something that the Constitution mandates that they do. Taitz calls Congress a “government agency” and names it as a defendant in her Grinols et al. v. Electoral College et al. lawsuit.

As I said in a comment on another thread: “I suppose in the history of whack-job lawsuits, someone has tried to sue Congress before” and it turns out that I was correct that Taitz is not the only lawyer that thinks outside the box, way outside the box. Another is Mario Apuzzo who filed a lawsuit against Congress on behalf of Charles Kerchner in 2009, Kerchner v. Obama. Indeed, not only did Kerchner sue the House, the Senate and the Vice President (then Dick Cheney) he even sued The United States itself! That lawsuit was ultimately dismissed but I wondered if anything in that process would shed light on the instant case suing Congress.

In the Kerchner case, the United States Attorney replied on behalf of Defendants. In its motion to dismiss, the Government argued that the Congressional Defendants had immunity. The government argued sovereign immunity (you can read the Wikipedia article for more on that). In addition, the Government argued “absolute immunity” for the Vice President under U.S. Const. art. I, § 6, cl. 1, noting that the courts have broadly interpreted the debate immunity to preclude the courts from interfering with the function of Congress. In dismissing Kerchner, Judge Simandle did not reach the immunity argument, dismissing rather for lack of standing; however, he did cite one other reason that the suit could not be brought—the “political question doctrine”—writing:

…it appears that Plaintiffs have raised claims that are likewise barred under the “political question doctrine” as a question demonstrably committed to a coordinate political department. See Baker v. Carr, 369 U.S. 186, 216 (1962). The Constitution commits the selection of the President to the Electoral College in Article II, Section 1, as amended by the Twelfth Amendment and the Twentieth Amendment, Section 3. The Constitution’s provisions are specific in the procedures to be followed by the Electors in voting and the President of the Senate and of Congress in counting the electoral votes. Further, the Twentieth Amendment, Section 3, also provides the process to be followed if the President elect shall have failed to qualify, in which case the Vice President elect shall act as President until a President shall have qualified. None of these provisions evince an intention for judicial reviewability of these political choices.

So this brief nostalgic look back at another lawsuit from 2009 informs us that the Grinols case is:

Doomed image

Read more:

3 USC § 5 – Determination of controversy as to appointment of electors

imageIt’s somewhat murky what the birthers expect, should they actually win any of their court cases against the Electoral College. Two losing elector candidates in Minnesota are suing the Secretary of State of California in Grinols v. Electoral College. If Grinols has any standing at all, it must be his injury at not being in the Electoral College because, as he alleges, the winning party’s candidate was ineligible. How the California Secretary of State does anything for a Minnesota elector is unknown.

It’s too late anyway. There is a law, 3 USC § 5, that says any controversy over the electors must be resolved 6 days before the date the Electoral College votes on December 17. The Grinols suit was filed 5 days before.

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

The National Archives explains it this way:

States must make final decisions in any controversies over the appointment of their electors at least six days before the meeting of the Electors on December 17, 2012. This is so their electoral votes will be presumed valid when presented to Congress. The deadline for resolving any controversies is December 11, 2012.

Here is how attorneys for President Obama applied this statute in Florida in the Voeltz case, and the Plaintiff’s response.