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Taitz multiplies delays in Mississippi

On the eve of a decision by federal Judge Wingate in Mississippi, Orly Taitz filed something that delayed the decision in the long-running Taitz v. Democrat Party of Mississippi case, including punking comments from her own web site. Now she’s filed even more “stuff” with a motion today for leave to file new facts and opinions (h/t to NBC).

Her motion is accompanied by one item we pretty much expected, the Dissenting Opinion by Chief Justice Moore from the Alabama Supreme Court decision in the case of McInnish v. Chapman. She thinks this minority opinion is something the Court should look at. While on the surface this might seem to be a tiny help to Taitz since Judge Moore opined that the presidential eligibility questions do not become moot after the election because the same issues are likely to repeat, and his view that in Alabama the Secretary of State has an obligation under law to investigate questionable candidates, it actually undermines her position because Judge Moore further states that the federal courts do not have jurisdiction to hear eligibility cases, citing Hutchinson v. Miller:

Had the framers wished the federal judiciary to umpire election contexts, they could have so provided. Instead, they reposed primary trust in popular representatives and in political correctives.

The second item is one less familiar, the oral argument in the 9th Circuit Court of Appeals in the Lindsay v. Bowen case. In this case California Secretary of State Bowen denied a 2012 ballot position to Peace and Freedom Party presidential candidate Peta Lindsay because she was under age. Bowen argues that she has the authority to do this. Taitz argues that in Mississippi, the Secretary of State must investigate candidates and exclude ineligible ones.

While neither of these two items is precedential, I can understand why someone grasping at straws might submit them; however, what took me totally by surprise was the appearance of

The Orly Taitz Super PAC

“No one expects the Orly Taitz Super PAC!”

Orly Taitz on Los Angeles

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Lindsay oral arguments: peppered with “birther”

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.”

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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.