Hardly news that the Supreme Court yet again found no interest in hearing yet another birther lawsuit, this one from John Dummett (that we believe is pronounced with the stress on the last syllable) and Ed Noonan.
Chief Justice of the Alabama Supreme Court, former WorldNetDaily writer and birther Roy Moore (looking gay after his election to the court) has triggered a constitutional crisis in Alabama after ordering judges not to issue marriage licenses to same-sex couples in defiance of a federal judge’s ruling, that the U. S. Supreme Court declined to review. Probate Judge Al Booth in Autauga County said:
"I have the man who runs this state’s court system telling me not to issue marriage licenses for same-sex couples," Booth said. "I have the federal judiciary telling me I will issue marriage licenses to same-sex couples.
"I want to uphold my oath. But what law do I follow?" he said. "Which constitution do I uphold?"
The head of Alabama’s Republican took the federal order to start issuing licenses to same-sex couples pretty hard:
The State of Alabama and the United States of America will reap God’s wrath if we embrace and condone things that are abhorrent to God, such as redefining marriage as anything other than a union between one man and one woman.
Read more at USA Today.
While I personally think foreign-born Ted Cruz is eligible because he was a US citizen at birth, there is certainly an argument to be made the other way. It will be interesting to see how strong the opposition to Cruz is compared with the parentage-based opposition to Obama.
If Cruz is a serious candidate, it would certainly be possible for a legitimate challenger for the Republican presidential nomination to bring a lawsuit (even if it were a friendly suit) claiming that Cruz was ineligible, resulting in the adjudication of the definition of “natural born citizen” by the Supreme Court. I think that would be a good thing.
The birthers have so polluted the discussion, and popular opinion is so terribly confused, something, I think, is needed to clear the air.
Monday is trash pickup day at my house, and also today the Supreme Court announced dumping of birther lawsuits, most notably an appeal from the Supreme Court of Alabama in McInnish v. Chapman. Also denied was Rudy v. Lee (with amicus brief by Herb Titus).
H/t to gorefan.
Because of the holiday, the next pick-up will be on Tuesday.
I believe the anonymous writer at Gerbil Report™ is correct in saying that this is the first time President Obama has responded to a birther petition at the Supreme Court. For whatever reason, attorney Mark Herron, who represented the President in the Florida case of Voeltz v. Obama, has filed a brief in opposition to the petition for a writ of mandamus by Voeltz. Florida Secretary of State Kenneth W. Detzner filed a waiver of his right to respond.
This case, sometimes called Voeltz III (as it is the third one by Voeltz in Florida), was famously dismissed for lack of jurisdiction by judge Kevin J. Carroll, writing:
This Court notes that President Obama lives in the White House. He flies on Air Force One. He has appeared before Congress, delivered State of the Union addresses, and meets with Congressional leaders on a regular basis. He has appointed countless ambassadors to represent the interests of the United States throughout the world. President Obama’s recent appointment of The Honorable Mark Walker, formerly a member of this Court, has been confirmed by the United States Senate. Judge Walker has been sworn in as a United States District Court Judge and currently works at the Federal Courthouse down the Street. The Electoral College has recently done its work and elected Mr. Obama to be President once again. As this matter has come before the Court at this time of the year it seems only appropriate to paraphrase the ruling rendered by the fictional Judge Henry X. Harper from New York in open court in the classic holiday film Miracle on 34th St. “Since the United States Government declares this man to be President, this Court will not dispute it. Case dismissed.”
The Florida Supreme Court refused to hear an appeal in this case, citing lack of jurisdiction. (Here, Florida law prevents their Supreme Court from hearing an appeal of a per curiam [in the name of the court] affirming appellate decision without opinion.)
The specific relief being requested by Voeltz is:
Petitioner respectfully requests that this Court issue a writ of mandamus compelling the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida to hear to the case on the merits and issue a declaratory judgment as to the eligibility of Barack Obama to serve as President of the United States.
Attorney Mark Herron responds in his brief in opposition to the petition by arguing that state courts do not have jurisdiction to adjudicate presidential eligibility, that this responsibility is “…committed under the Constitution to the electors and to Congress…” and further that an extraordinary measure such as a writ of mandamus is not justified. A writ of mandamus is an order directing someone to so something that they have an obligation to do, and is issued when no other remedy is available. Herron argues that there is no obligation whatever for the Florida court to vacate its order and try the case on the merits rather than dismissing it.
Voeltz is being represented by birther attorney Larry Klayman. Mark Herron had previously moved for sanctions against Klayman in this case.
Late as usual
In a move that left Obots open-mouthed with incomprehension, birther attorney Larry Klayman (who has never been convicted of criminal failure to pay child support), started the process of appealing his loss in McInnish v. Chapman to the US Supreme Court on June 19, reports the Supreme Court docket. Klayman moved for more time to submit his appeal. Perhaps he is hoping to get some momentum by a favorable ruling.
The McInnish case dealt with an obscure provision of Alabama law, called the “jurisdiction stripping statute,” that prevents Alabama courts from getting involved in the conduct of elections. McInnish wanted to force the Alabama Secretary of State to investigate the eligibility of presidential candidates as a duty of office. Klayman lost the case before the Alabama Supreme Court last March on a 7-2 vote, Chief Justice Roy Moore and Tom Parker dissenting.
Klayman’s timing of this request for an extension is odd. An appeal must be filed within 60 days of the judgment () and Klayman’s motion for more time (which the statute permits) was filed precisely on the 60th day; however, the rules of the Supreme Court require that the request for an extension be filed 10 days before the deadline. states:
For good cause, a Justice may extend the time to file a petition for a writ of certiorari for a period not exceeding 60 days. An application to extend the time to file shall set out the basis for jurisdiction in this Court, identify the judgment sought to be reviewed, include a copy of the opinion and any order respecting rehearing, and set out specific reasons why an extension of time is justified. The application must be filed with the Clerk at least 10 days before the date the petition is due, except in extraordinary circumstances. The application must clearly identify each party for whom an extension is being sought, as any extension that might be granted would apply solely to the party or parties named in the application. For the time and manner of presenting the application, see Rules 21, 22, 30, and 33.2. An application to extend the time to file a petition for a writ of certiorari is not favored.
The request for an extension was not even docketed until June 25, long after the deadline. I don’t even know if it is possible for a Justice to grant an extension after the deadline has expired, and if that’s true then the extension must have been granted on the 19th, or not at all; the Supreme Court docket indicates no extension granted. It is hard to fathom a reason for this case to be considered having "extraordinary circumstances." Klayman could have filed the request for an extension any time he wanted to. There’s certainly no new evidence in the interpretation of the Alabama jurisdiction stripping statute. The election, which is the subject of the case, is long over, making anything to do with that particular election moot.