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Eligibility attorney asks to join case before Supremes

Posted By Bob Unruh On 11/04/2010 @ 12:30 am In Front Page | Comments Disabled

A prominent lawyer who has argued several legal challenges to Barack Obama’s eligibility to be president, including cases pending at the appeals level in both state and federal courts in California, is asking to join in a case already pending before the U.S. Supreme Court.

The request is from Gary Kreep of the United States Justice Foundation to join the appeal by attorney Mario Apuzzo on behalf of his client, Charles Kerchner Jr.

Kreep is seeking to file a friend-of-the-court brief on behalf of the Western Center for Journalism in support of Kerchner and the other plaintiffs.

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Word on what the high court will do with the Kerchner case has not been announced.

The Western Center covers a wide variety of topics and is training “citizen journalists” and bloggers, the request explains. So, the “issue of a candidate for president of the United States not being required to conclusively prove his or her birth status is of great concern … because if the determinations of eligibility are left to the political parties, this will lead to candidates who clearly fail to meet the requirements.”

“Federal law allows Congress to resolve questions regarding the vote of a presidential elector … but this is a remedy limited to problems with electors and does not extend to the eligibility of a candidate,” the request explains. “Since this action is a dispute over the eligibility of Barack Obama for the office of president of the United States, and not a dispute over whether the electors properly cast their vote, this statute does not apply to the underlying issues at hand.”

Further, it explains that the provisions in the U.S. Constitution, which require presidents to be a “natural born citizen,” cannot be disregarded “by means of a popular vote of the people.”

Any amendment to the Constitution, the request points out, “requires a two-thirds vote of both houses of Congress and ratification by three-fourths of all state legislatures.”

“Once a name is placed on a ballot, voters are only concerned with whether they prefer one candidate over another candidate, as it can be rightfully inferred by said voters that the threshold issue of eligibility has already been determined by virtue of the candidate names having been placed on the ballot. Additionally, the candidates for the office of president … are not required to prove any eligibility.”

Kreep continued, “Because voters can and do vote for candidates that are liked by the voters, even if those candidates may not be eligible for the position, the voters do not have the power, or the right, to determine the eligibility of a candidate. For the court to hold otherwise would be to strip all candidates not winning a majority of the votes cast of all political power, as the laws would be based upon the whims of the majority of voters, rather than on the Rule of Law.”

Kreep asked that the court “resolve the current issue of who has the authority to verify that a presidential candidate meets the constitutionally required eligibility requirements.”

“Even if the people of the United States voted to elect as president a candidate who did not qualify for the position, that vote would not be sufficient to overcome the constitutional requirements for office,” he said.

“There remains a question as to whether absurd results may occur unless this court so determines,” he said.

Kreep is arguing cases before the appellate level courts in both the state and federal systems in California. He recently obtained a ruling from a state court that appears to say that a judicial review of a president’s eligibility is a possibility – after the Electoral College and congressional procedures run their courses.

The ruling also suggests that state officials have the option of removing someone from a presidential ballot who is ineligible.

The opinion upholds a state district court’s dismissal of a challenge to the procedures under which California’s electors helped install Obama in the Oval Office.

The case was pursued on behalf of Ambassador Alan Keyes, Wiley S. Drake Sr. and Markham Robinson. It alleged that both the California Secretary of State Debra Bowen and the state’s electors for the Electoral College in the 2008 election failed to verify that Obama is eligible.

Keyes, Drake and Robinson also remain plaintiffs in a similar complaint in the federal court system. The case is now is pending before the 9th U.S. Circuit Court of Appeals.

In the federal case, the plaintiffs are represented by Kreep and California attorney Orly Taitz.

Kreep has argued that the precedent already has been set, since state officials in California in 1968 refused to have activist Eldridge Cleaver’s name on the ballot “because he was only 34 years old, a year short of the requisite 35 years of age needed to be a presidential candidate.”

The court’s opinion said a line of responsibility would include the courts should Congress fail to act “in the first instance.” During the 2008 election there was no action on the part of Congress regarding the issue.

The court said, “Judicial review – if any – should occur only after the electoral and congressional processes have run their course.”

The president’s lawyers in many of the cases have said, and judges have agreed so far, that the courts don’t have jurisdiction over a question of eligibility. That’s because of the Constitution’s provision that presidential eligibility issues must be handled by Congress during the approval of the Electoral College vote, or a president must be removed by impeachment, which also rests with Congress.

In one case, the president’s lawyers prominently argued that 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 in “State ex rel. Sathre v. Moodie,” after Thomas H. Moodie was elected to the office of governor of the state of North Dakota, according to court filings, “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.”

North Dakota’s historical archives 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.

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.

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.




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