A three-judge panel of the 9th U.S. Circuit Court of Appeals responded to an appeal of a challenge to Barack Obama’s eligibility to be president with one word: “Denied.”
That was the word from the court in a request for a rehearing, or a rehearing of the full court, in a case brought by a member of the American Independent Party’s presidential ticket in California in 2008 and a certified elector for the party.
They allege Obama wasn’t qualified to be president and, therefore, his presence on the ballot stacked the election unfairly against qualified candidates.
The court today said, “The petitions for panel rehearing and rehearing en bank filed by Plaintiffs-Appellants Wiley S. Drake and Markham Robinson are denied.”
The lawsuit was filed on the day of Obama’s inauguration. Obama flubbed the oath of office in public, and the White House reported he retook it in private later.
Kreep’s clients are Wiley S. Drake, a candidate for the White House on the American Independent Party ticket in California, and Markham Robinson, a certified California elector for the American Independent Party.
The judges had observed: “These plaintiffs argue that they have standing because, as candidates running against Obama in the 2008 election, they had an interest in having a fair competition. … If Obama entered the presidential race without meeting the requirements for the office, they contend, the candidates did not have a fair opportunity to obtain votes in their favor.”
The original opinion from the panel of judges Harry Pregerson, Ray Fisher and Marsha Berzon explained the concept is called “competitive standing,” and they affirmed it as legitimate grounds for concern.
“This notion of ‘competitive standing’ has been recognized by several circuits,” the opinion said. “We, too, have upheld the notion of ‘competitive standing.’ In Owen v. Mulligan, we held that the ‘potential loss of an election’ was an injury-in-fact sufficient to give a local candidate and Republican party officials standing. In that case, the candidate for local office sued the Postal Service for giving his rival a preferential mailing rate, in violation of its own regulations.”
The opinion said the case had the candidate and party officials seeking “to prevent their opponent from gaining an unfair advantage.” However, in Obama’s case, the court panel said that once the inauguration was held, the claims evaporated, because the plaintiffs no longer were “candidates.”
“The original complaint was filed Jan. 20, 2009, at 3:26 p.m. Pacific Standard Time, after President Obama was officially sworn is as president,” the judges wrote. “Once the 2008 election was over and the president sworn in, Keyes, Drake and Lightfoot were no longer ‘candidates’ for the 2008 general election. Moreover, they have not alleged any interest in running against President Obama in the future.”
The opinion neglected to note Obama’s flub of the oath of office and his decision to retake it later.
However, the petition to the appeals court noted that Berzon, in a hearing in May, “mentioned that the issue raised in this case was an important constitutional issue that needed to be resolved.”
But the opinion itself said nothing on the issue.
The plaintiffs had argued that because of the lack of intervention on the part of the court, “If the current Prime Minister of the United Kingdom, David Cameron, were to be nominated by a political party to run for the office of president of the United States, could he do so on the grounds that there is no one with the authority to verify his status as required under the U.S. Constitution. … Because of this, there is a strong potential for of persons running for, and being elected to, the office of president of the United States, when said persons have no constitutional eligibility to hold the office.”
Such a case took place in North Dakota in the 1930s when Thomas H. Moodie was removed from the office of governor. Moodie had failed to meet a state residency requirement to be governor. But he was elected anyway, installed and ultimately removed from office by the state Supreme Court over that failure.
According to Kreep, the court in the Moodie case held, “The lack of residential qualifications on the part of the governor is a legal disability. The [North Dakota] constitution does not differentiate between a disability existing before election and one occurring after election in regard to the right of the lieutenant governor to assume the powers and duties of the office of governor. The provision in the constitution devolving these powers and duties upon him must be construed in the light of reason. … When the framers of the constitution used the language which we are here considering, they intended to include legal as well as physical or mental disabilities, and did not exclude disabilities existing prior to election.
“Here, in like manner, Drake and Robinson allege that Obama is legally disabled by his birth status. The condition of being ineligible for particular elected office does not change on account of winning the requisite number of votes to otherwise win the office. If one is ineligible when a candidate, the same person continues to be ineligible after being elected,” the brief said.
“If Mr. Obama is, in fact, ineligible for the office of president of the United States, it is insufficient that he received a majority of the Electoral College votes and has served for some time in the office, because ineligibility is not vacated by votes, else the Constitution could be amended contrary to the Constitution’s own dictates,” it said.
While Obama’s “Certificate of Live Birth” was released by the White House, other documentation for him remains sealed, including kindergarten records, high 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, 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.
The Supreme Court justices repeatedly have refused to address the constitutional questions involved. The justices apparently are “avoiding” the Obama issue, according to one member of the court. Last year, Justice Clarence Thomas appeared before a U.S. House subcommittee when the issue arose. Subcommittee Chairman Rep. Jose Serrano, D-N.Y., raised the question amid a discussion on racial diversity in the judiciary.
“I’m still waiting for the [court decision] on whether or not a Puerto Rican can run for president of the United States,” said Serrano, who was born in the island territory. “That’s another issue.”
Yet after Serrano questioned him on whether or not the land’s highest court would be well-served by a justice who had never been a judge, Thomas not only answered in the affirmative but also hinted that Serrano would be better off seeking a seat in the Supreme Court than a chair in the Oval Office.
“I’m glad to hear that you don’t think there has to be a judge on the court,” said Serrano, “because I’m not a judge; I’ve never been a judge.”
“And you don’t have to be born in the United States,” said Thomas, referring to the Constitution, which requires the president to be a natural-born citizen but has no such requirement for a Supreme Court justice, “so you never have to answer that question.”
“Oh really?” asked Serrano. “So you haven’t answered the one about whether I can serve as president, but you answer this one?”
“We’re evading that one,” answered Thomas, referring to questions of presidential eligibility and prompting laughter in the chamber. “We’re giving you another option.”
Taitz and Kreep had another case that ran through the state court system that raised similar issues and ultimately was rejected by the U.S. Supreme Court, which simply posted a notice that it would not hear the case.
The image that Obama released as his birth documentation, which has been challenged repeatedly by computer, imaging and document experts as a fraud: