I downloaded the two files from Scribd in PDF format. Because these PDFs were created from the original documents and not scanned images, it was easy to save them as Microsoft Word .doc files and then run Word’s comparison utility to create a marked-up version showing what changed.
One of the things throughout the document is that where it previously said “elected” it now says “elected and nominated” reflecting Klayman’s contention that the 2012 Presidential Preference Primary (which was not actually held) “elected” Barack Obama as Florida’s Nominee for President.
Reading the Florida statutes, it seems clear to me that the winner of the Preference Primary is consistently described as a “candidate for nomination” and I think, and this is the position of the Florida Secretary of State, that the election contest statute does not apply to the Preference Primary.
While it seems clear from reading the law that there are no obvious grounds for the Voeltz suit in the election statute, I still have a common sense reservation. Let’s say that the allegations in the case were not a nut-case conspiracy theory about Barack Obama, but good old election fraud – the votes were miscounted, ineligible persons voted and so on. One would think that such shenanigans ought to be redressable somehow. Because of the unique nature of the Preference Primary, election fraud might be addressed outside the court system, by the State Democratic Convention, the individual delegates, or the national convention. No one is elected yet. Also someone, an opposition candidate, could claim damages and sue outside the election contest provision.
Still, if Judge Lewis should decide, based on some reasoning beyond what I have seen, that the Presidential Preference Primary is an election, that a Primary that didn’t happen is also an election, and that the result can be challenged under Florida law, then we pass to the question of whether the allegations in this suit are sufficient to sustain a cause of action. I don’t think they are. While elections and nominations in Florida may be challenged on the basis of the eligibility of the candidate, I would assert that there is no eligibility requirement in a Preference Primary, which is solely a mechanism for Party members to express their preference. One does not have to be eligible to be preferred. I support the notion that political parties are not bound by Article II of the constitution in deciding who they want to run for President. I think we all agree that an ineligible person may not serve as President of the United States, but I see nothing in the Constitution that precludes such a person from running.
The other major change in the “Second Amended Complaint” is the addition of “declaratory judgment” as relief. As you know, I have not yet graduated from the Obama Conspiracy Theories Online Law School, and I haven’t studied declaratory judgments yet. I get the impression that they appear a lot in patent litigation, and basically one party wants the court to declare that they have a right of some sort.
In this case, Klayman asks the court to declare that the Secretary of State of Florida has a duty to verify the eligibility of candidates for President, and second that Barack Obama isn’t eligible. The courts so far (and there are few examples) seem to be saying that there is no role for the States in determining presidential eligibility, and if this is so and Lewis agrees, then Klayman will not get his declaratory judgment either.