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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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Can courts define “natural born citizen?”

It’s been the conventional wisdom that should the right case come along, perhaps with a presidential candidate as plaintiff, that the Supreme Court might be induced to define the constitutional term “natural born citizen.” Is that really the case?

I’ve read court decisions that point out that the only effect that phrase has in all of law, and the only distinction that it gives someone who is otherwise a citizen, is eligibility for President of the United States (and since the 12th amendment, the Vice President).

The 20th Amendment uses the phrase “failed to qualify” in connection with the Congress’s role in presidential elections, saying:

If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Given that it is the Congress who certifies presidential elections, and it is the Congress that deals with a President elect who fails to qualify, it would appear that the Congress is the sole arbiter of presidential qualifications. When the Constitution grants authority solely to one branch of government (in this case the Congress), the courts cannot insert themselves. See United States v. Nixon (1993).

I am suggesting that the definition of “natural born citizen” may be an inherently nonjusticiable political question.



Reading Judge Carter

Judge David O. Carter

Judge David O. Carter

I’ve had a few days to think about the transcript from the October 5, 2009, hearing in Barnett v. Obama. I am not the first to try to figure out where Judge David O. Carter is leaning based on his comments during the hearing.

The bulk of the Judge’s questions related to two issues: the standing of the plaintiffs and the political process for removing a president. It seems to me that these two questions focus on the criteria under which Judge Carter may dismiss the case.

Judge Carter seems to be concerned with the question: if the plaintiffs are right that President Obama is not eligible, what is the mechanism under the Constitution through which their complaint is redressed? In his view, there most be some avenue for a citizen to seek redress for a legitimate complaint. Continue Reading →