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Birther ballot case goes to California Supreme Court

But is the California Supreme Court Constitutional?

That’s what was reported by Gerbil Report™ from a press release of the “American Resistance Party.”1 The article, “Are Part Alien Judges Constitutional?” focuses on one newly-appointed associate justice of the California Supreme Court who was born in Mexico. Mariano-Florentino Cuéllar was recently nominated by Governor Jerry Brown to the Court, and confirmed unanimously by the California Commission on Judicial Appointments. Cuéllar has some impressive credentials that can be read in his Wikipedia article, or at the LA Times.

Because they were unable to find anything showing that Cuéllar was a US Citizen, the ARP assumed that he wasn’t. Curiously, the California Judicial Branch Fact Sheet that describes qualifications for judges does not mention any citizenship requirement, nor is it a requirement for admission to the California Bar. Nevertheless, Cuéllar is, according to his Constitution Project biography, a US Citizen. But even if Cuéllar is a naturalized citizen he is not, argues the ARP, constitutionally qualified to be a judge on the California Supreme Court because of some tortured reading of the US Constitution, specifically the 11th Amendment that precludes foreign persons from suing a state.

They assert:

Mr. Cuéllar has failed to prove in any written statement or eligibility statement in the past to prove beyond a shadow of a doubt that he has refuted (sic) his Mexican citizenship. It is his responsibility to do so, if and when, he attains an office that is under the purview of the U.S. Constitution and California Constitution.

The ARP probably is unaware of the oath that naturalized citizens take:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; …

So while not applicable in this particular instance, the ARP do argue that dual citizens (not 100% citizens) cannot serve in any capacity under the California or US Constructions. Their argument seems nonsense. Where were they when Michele Bachmann (Swiss) and Ted Cruz (Canadian) served in the House and Senate (respectively)?

The case in question is Noonan v. Bowen, a long dismissed ballot challenge, being appealed from the Third Appellate District. Edward Noonan and co-appellant Pamela Barnett are being represented by Nathaniel J. Oleson of the US Justice Foundation. The case number is S221700.

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The case was denied review.

1Edward Noonan is founder and National Committee Chair of the American Resistance Party.

What, a new eligibility lawsuit appeal?

Claiming a specific injury because of an ineligible president, Christopher John Rudy is suing the government for $90, a fee he had to pay as the result of a law signed by Barack Obama, whom Rudy alleges is not really the president. Of course, this case was dismissed on jurisdictional grounds.

The original case (1:2013cv00278) was filed in the Virginia Eastern District Court in March of 2013. The order dismissing the case agreed with the Patent Office’s contention that the courts lacked jurisdiction to decide presidential eligibility because it was a political question. A political question is defined by guidelines set down by the Supreme Court in Baker v. Carr, 369 U.S. 186, 217 (1962), existing when any of the following holds:

  1. textually demonstrable constitutional commitment of the issue to a coordinate political department;
  2. a lack of judicially discoverable and manageable standards for resolving the issue;
  3. the impossibility of resolving the issue without an initial policy determination of a kind clearly for nonjudicial discretion;
  4. the impossibility of a court’s undertaking independent resolution of the issue without expressing a lack of respect due to the coordinate branches of government;
  5. an unusual need for unquestioning adherence to a political decision already made; or
  6. the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Defendants cited to three of the criteria (1, 5 and 6) and said: “numerous articles and amendments of the U. S. Constitution, when viewed together, make clear that the issue of the President’s qualifications and his removal from office are textually committed to the legislative branch and not the judicial branch.”

The decision was appealed to the 4th Circuit Court of Appeals (case number 14-1056), and the lower court ruling was affirmed without comment on April 11, 2014.

What makes this latter-day case a little more interesting is the submission of an amicus brief by the United States Justice Foundation (Gary Kreep’s old outfit). This time the USJF attorney is William J. Olson. The USJF is a non-profit, right-wing nut job public interest organization. The USJF brief claims that up until now, “no one has questioned the validity of a law signed by the president.” That is, of course, is factually wrong. Orly Taitz did that in Taitz v. Sebelius.  Very sloppy work, Mr. Olson. Our old buddy Herb Titus makes an appearance on the docket also, I presume with the amicus brief.

The Supreme Court appeal was docketed July 10, and assigned case number 14-36. Here is the USJF brief, and it is quoted from in the WorldNetDaily article referenced below.


The Supreme Court denied a writ of certiorari on October 6, 2014.

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McInnish v. Chapman in brief

The lawsuit of McInnish v. Chapman is the birther’s best hope these days.

Sometimes it can take a while to locate exactly what you want. Here are the briefs before the Alabama Supreme Court in McInnish v. Chapman. The issue is whether Alabama Secretary of State Chapman has a duty to verify the eligibility of candidates for President of the United States and whether the Alabama “Jurisdiction-stripping statute” precludes the courts from hearing the case.

There is a long string of cases, going back to Donofrio v. Wells in 2008 where state courts have ruled that their secretaries of state do not have such a duty. Are the laws in Alabama different? Is the presence of birther sympathizers on the Alabama Supreme Court significant? We shall see.


The Alabama Supreme Court upheld the lower court decision. The Secretary of State had no obligation to investigate.

1Spencer Connerat brought eligibility suits against Barack Obama in Florida.

2Jim Zeigler, songwriter and Mobile attorney, is a graduate of the Jones School of Law. The Alabama Republican Assembly is a chapter of the National Federation of Republican Assemblies, who style themselves as the “Republican wing of the Republican Party.”