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California 'had duty' to examine Obama eligibility

Posted By Bob Unruh On 03/29/2010 @ 9:58 pm In Front Page | Comments Disabled

A brief submitted to an appeals court in California contends elections officials in California had a duty to examine Barack Obama’s presidential eligibility during the 2008 election.

WND previously has reported on the case brought by Gary Kreep of the United States Justice Foundation on behalf of Ambassador Alan Keyes and others.

Kreep has argued that a judge’s earlier dismissal of the case ignored significant precedents, that state officials previously removed from the ballot a nominee for president simply because he did not meet constitutional eligibility requirements and in another situation, a court actually removed a government’s chief elected executive from office for not being eligible.


North Dakota Gov. Thomas Moodie, removed from office when the state Supreme Court found him ineligible

A multitude of cases have been brought over the issue of Obama’s eligibility. Some are by critics who have doubts about whether he was born in Hawaii in 1961 as he has written, and others are from those who question whether the framers of the Constitution specifically excluded dual citizens – Obama’s father was a subject of the British crown at Obama’s birth – from being eligible for the presidency.

The disputes revolve around the Constitution’s requirement that the president be a “natural born citizen.”

In his reply brief to Obama’s arguments the case should be dismissed, Kreep argues that even though Obama’s attorneys contend “jurisdiction over presidential qualifications lies with the United States Congress,” that actually is not a full explanation.

Kreep cites the U.S. Constitution that “each state” shall appoint a number of electors. He says “this case concerns itself primarily with California state election law and the compliance or non-compliance by the secretary of state in fulfilling her ministerial duties as chief elections officer of California.”

“This is not a political question, but is, rather, a question well within the jurisdiction of this court to determine, as it is a duty that may be compelled by this court’s equitable power,” he wrote.

“A remedy is proper at state level where a duty is imposed on a state officer. The underlying writ does not require anything of any federal official, but does require Respondent [Debra] BOWEN, the California Secretary of State, to fulfill a specific duty to verify that a candidate meets the eligibility requirements for the office that the candidate is seeking. This is a matter of first impression, and RESPONDENT’S correctly assert that there is not yet any statutory or judicial rule which requires this duty of the Secretary of State. However, it is a duty that is reasonably inferred from the already existing duties of said office,” he argues.

Kreep’s earlier appeal documentation explained the precedents that he believes should be applied.

“In 1968, the Peace and Freedom Party submitted the name of Eldridge Cleaver as a qualified candidate for president of the United States. The then-Secretary of State, Mr. Frank Jordan, found that, according to Mr. Cleaver’s birth certificate, he was only 34 years old, one year shy of the 35 years of age needed to be on the ballot as a candidate for president,” the brief, being filed this week, argues.

“Using his administrative powers, Mr. Jordan removed Mr. Cleaver from the ballot. Mr. Cleaver, unsuccessfully, challenged this decision to the Supreme Court of the State of California, and, later, to the Supreme Court of the United States, which affirmed the actions.”

Also, the governor of North Dakota was removed from office after the state Supreme Court determined he did not meet the state constitution’s eligibility requirements.

The arguments have been submitted to the 3rd Appellate District Court of Appeal in California in the case that was brought in state court on behalf of Alan Keyes and Wiley Drake as well as California elector Markham Robinson.

It alleges Obama was not eligible for the office and Bowen failed to investigate his qualifications before allowing his name on the 2008 presidential election ballot.

This case is separate from another case brought on behalf of some of the same plaintiffs in federal court over similar concerns. That case, dismissed last year by U.S. District Judge David Carter, is on appeal to the 9th U.S. Circuit Court of Appeals.

Kreep alleges the dismissal of the state case by Judge Michael Kenny was in error because the defendants “failed to establish that there was no triable cause of action on the critical constitutional issues of whether Obama has met the eligibility requirements to serve as president of the United States and whether Bowen has the duty, as chief elections officer of the state of California, to verify the eligibility of candidates for federal office running in the state of California.”

The president’s lawyers in many of the cases have said, and judges have agreed so far, that the courts simply don’t have jurisdiction over a question of eligibility because of the Constitution’s provision that president’s must be removed by impeachment, which rests with Congress.

In one case, the president’s lawyers prominently argued, “The Constitution’s commitment to the Electoral College of the responsibility to select the president includes the authority to decide whether a presidential candidate is qualified for office.

“The examination of a candidate’s qualifications is an integral component of the electors’ decision-making process. The Constitution also provides that, after the Electoral College has voted, further review of a presidential candidate’s eligibility for office, to the extent such review is required, rests with Congress,” the president’s lawyers argued.

But the issue, however, already has been adjudicated by courts, and the resolution is that courts do have the authority to review eligibility and even remove an ineligible chief executive, the appeal brief cites.

“Even though Obama was elected to this office, this ineligibility constitutes a legal disability for the office of president of the United States,” the brief states. “In ‘State ex rel. Sathre v. Moodie,’ after Thomas H. Moodie was duly elected to the office of governor of the state of North Dakota, it was discovered that Thomas H. Moodie was not eligible for the position of governor, as he had not resided in the state for a requisite five years before running for office, and, because of that ineligibility, he was removed from office and replaced by the lieutenant governor,” the brief explains.

North Dakota’s historical archives, in fact, document the case.

The Democrat was nominated by his party for governor in 1934 and beat his Republican opponent, Lydia Langer.

“As soon as the election was over, there was talk of impeachment, but no charges were filed,” the state’s archives report. “After Moodie’s inauguration on January 7, 1935, it was revealed that he had voted in a 1932 municipal election in Minnesota. In order to be eligible for governor, an individual has to have lived in the state for five consecutive years before the election. The State Supreme Court determined that Governor Moodie was ineligible to serve, and he was removed from office on February 16, 1935,” the state reports.

“We’re seeking to bar anyone from going on the presidential ballot in 2012 unless they can prove that they’re eligible,” Kreep told WND.

“Appellants contend that Bowen has a duty to ensure that all candidates in the state of California, for both federal and state offices, meet the eligibility requirements for the offices sought, that Bowen did not fulfill said duty, and that a court determination is needed to ensure that the California secretary of state comply with this duty in the future,” the brief said.

The original case sought to prevent Bowen from certifying California’s electors for the Electoral College vote; it later was amended to correct the deficiencies it identified in future elections.

It explains the appellants have standing in the case because court precedent states “a candidate or his political party has standing to challenge the inclusion of an allegedly ineligible rival … on the theory that doing so hurts the candidate’s or party’s own chances of prevailing.”

“Keyes … and Drake … have been injured because they did not have fair competition for the office,” the pleading states.

Further, courts can address the problem.

While the dispute has “significant political overtones,” it is, nonetheless, “an issue which the court can make a determination on, because the requirements are clearly stated in Article II, Section 1, Clause 4, of the U.S. Constitution and courts routinely decide questions of law and of fact such as the issue in this case.”

“A provision of the Constitution may not be disregarded by means of a popular vote of the people, as there are specific guidelines for amending the Constitution of the United States,” it continues.

“Respondents denied that this Cleaver case had any relevance to the underlying issue … Similarly, in 1984, the Peace and Freedom Party listed Mr. Larry Holmes as an eligible candidate in the presidential primary. When the then SOS checked his eligibility, it was found that Mr. Holmes was, similarly, not eligible, and Mr. Holmes was removed from the ballot… It this case, we have a similar situation in that the Democratic Party submitted the name of Obama as a candidate for president,” the brief argues.

WND has reported on the multiple legal cases challenging Obama’s eligibility in addition to efforts to raise the question at the state and national levels.

Several state legislatures are working on proposals that would require presidential candidates to submit proof of their eligibility. And a similar proposal has been introduced in Congress by Rep. Bill Posey, R-Fla.

The claims are that Obama does not meet the U.S. Constitution’s requirement that a president be a “natural born citizen.” The lawsuits have asserted he either was not born in Hawaii as he claims or was a dual citizen because of his father’s British citizenship at the time of his birth.

The Constitution, Article 2, Section 1, states, “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.”

However, none of the cases filed to date has been successful in reaching the plateau of legal discovery, so that information about Obama’s birth could be obtained.

The White House has not replied to numerous requests for comment.

Besides Obama’s actual birth documentation, the still-concealed documentation for him includes kindergarten records, Punahou school records, Occidental College records, Columbia University records, Columbia thesis, Harvard Law School records, Harvard Law Review articles, scholarly articles from the University of Chicago, passport, medical records, his files from his years as an Illinois state senator, his Illinois State Bar Association records, any baptism records, and his adoption records.

Another significant factor is the estimated $1.7 million Obama has spent on court cases to prevent any of the documentation of his life to be revealed to the public.


“Where’s The Birth Certificate?” billboard helps light up the night at the Mandalay Bay resort on the Las Vegas Strip.

Because of the dearth of information about Obama’s eligibility, WND founder Joseph Farah has launched a campaign to raise contributions to post billboards asking a simple question: “Where’s the birth certificate?”

The campaign followed a petition that has collected more than 495,000 signatures demanding proof of his eligibility, the availability of yard signs raising the question and the production of permanent, detachable magnetic bumper stickers asking the question.

The “certification of live birth” posted online and widely touted as “Obama’s birth certificate” does not in any way prove he was born in Hawaii, since the same “short-form” document is easily obtainable for children not born in Hawaii. The true “long-form” birth certificate – which includes information such as the name of the birth hospital and attending physician – is the only document that can prove Obama was born in Hawaii, but to date he has not permitted its release for public or press scrutiny.

Oddly, though congressional hearings were held to determine whether Sen. John McCain was constitutionally eligible to be president as a “natural born citizen,” no controlling legal authority ever sought to verify Obama’s claim to a Hawaiian birth.

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