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A state Superior Court in Georgia is being asked to review and overturn Secretary of State Brian Kemp’s decision, based on a recommendation from an administrative law judge, that Barack Obama’s name be on the state’s 2012 primary ballot.
The appeal to the higher court says the recommendation from the administrative law judge, Michael Malihi, was faulty and that he allegedly to this date has refused to follow the state’s requirements regarding the case.
The appeal has been filed with the Superior Court of Georgia for the County of Fulton by Van Irion, one of several attorneys who presented evidence at a hearing held by Malihi in January.
The plaintiffs argued several points before Malihi, including Obama’s alleged failure to qualify as a “natural born citizen” as required by the U.S. Constitution for presidents. Obama has admitted in his writings his father never was a U.S. citizen, and attorneys argued that the understanding of the Founders, and a subsequent Supreme Court ruling, defines natural-born citizen as the offspring of two citizens of the country at the time of the birth.
Citizens raising concerns include David Farrar, Leah Lax, Thomas Malaren and Laurie Roth, represented by Orly Taitz; David Weldon represented by attorney Van R. Irion of Liberty Legal Foundation; and Carl Swensson and Kevin Richard Powell, represented by J. Mark Hatfield. Cody Judy is raising a challenge because he also wants to be on the ballot.
Malihi’s decision came without any evidence being presented by Obama or his lawyer after they refused to participate in the required hearing under a state law that mandates all candidates qualify for the office they seek.
The law also allows any voter to raise a challenge, and several did. A hearing was held on their evidence Jan. 26.
Malihi essentially tossed all of the information the plaintiffs and their attorneys presented.
“The court finds the testimony of the witnesses, as well as the exhibits tendered, to be of little, if any, probative value, and thus wholly insufficient to support plaintiffs’ allegations,” he said.
The complaints were raised under a state law that allows voters to challenge the eligibility of candidates on the state’s ballot. It is the states that run elections in the U.S., and national elections are just a compilation of the results of the 50 state elections.
The state law requires “every candidate for federal” office who is certified by the state executive committees of a political party or who files a notice of candidacy “shall meet the constitutional and statutory qualifications for holding the office being sought.”
State law also grants the secretary of state and any “elector who is eligible to vote for a candidate” in the state the authority to raise a challenge to a candidate’s qualifications, the judge determined.
Irion told WND today that he’s asked Malihi why he declined to follow the Georgia Administrative Rules of Procedure 616-1-2-.39, which state, “Upon application by a party, the administrative law judge shall certify the facts to the superior court … for a determination of the appropriate action, including a finding of contempt.”
The attorney had sought that determination, but Malihi apparently ignored the request and the requirements.
He told WND that Malihi never had the authority to decide the contempt issue, but the court rules require him to certify facts to the Superior Court.
“We made our application for him to do that several days before his ruling … Malihi should have certified the facts alleged to the other court immediately. … Yet he sat on our request for days, then continued to sit on it after his ruling. When we inquired, the silence was deafening. We didn’t hear back at all. This is from a court that had previously responded to e-mails within hours, or even minutes, on every other occasion. Four days later we e-mailed again.”
He called the Malihi court’s explanation that it no longer had jurisdiction because the case had been advanced to a higher level unbelievable.
Irion’s motion for a finding of contempt explains Obama and his attorney “willfully defied” the order of the court to appear and testify during the Jan. 26 hearing.
“On the eve of the hearing, defendant’s attorney sent a letter directly to the Secretary of State of Georgia, with copies sent to this court and attorneys for the plaintiff. Defendant’s letter requested that the Secretary of State halt the proceedings of this court. The letter ended with a statement that the defendant and his attorney would suspend all further participation in the proceedings of this court pending a response from the Secretary of State. Later the same day, during the evening of January 25, the Secretary of State responded to the defendant via a letter with copies to this court and counsel for the plaintiff. The Secretary of State’s letter informed the defendant that the Secretary of State lacked authority under Georgia law to suspend this court’s proceedings. The letter concluded by warning the defendant that any failure to participate in further proceedings of this Court would be at the Defendant’s peril,” the motion explains.
Still, Obama and his attorney refused to participate, creating “a direct threat to the rule of law,” the attorney said.
“The defendant’s action represents a public denial of the authority of this court, the laws of this state, and the judicial branch of government as a whole. Such open denial of a separate branch of government by a sitting president amounts to no less than a declaration of total dictatorial authority,” he said.
Filed just yesterday with the Superior Court was a motion for emergency stay of Kemp’s rubber-stamp approval of Malihi’s decision.
“At issue is nothing less than the enforcement or loss of constitutional rule of law,” he submitted to the court. “The petitioner’s right to live in a constitutional republic will be lost if the clearest terms of the U.S. Constitution will not be enforced by the judicial branch of government.”
He said if the judiciary does not take the appropriate action, “it would confirm that the judicial branch is now unwilling to enforce the clearest and most basic requirements of the U.S. Constitution.”
His appeal explains that Malihi’s opinion defies logic.
“[His] conclusion runs contrary to common sense, violates venerable rules of constitutional construction followed by the U.S. Supreme Court since its inception, and violates the explicit holding of the Supreme Court case relied upon. Had the drafters of the Constitution intended all people born in the U.S. to be considered natural born citizens, the 14th Amendment would not have been necessary. Had the drafters of the 14th Amendment intended that amendment to alter the Article II definition of natural born citizen, they would have clearly stated so. Yet the term ‘natural born citizen’ is not found anywhere within the 14th Amendment. The amendment also makes no reference to Article II. The [Malihi] ruling, therefore, violates rules of construction that the OSAH had itself relied upon just days earlier in the same litigation,” the brief explains.
It explains Malihi also ignored a Supreme Court precedent in favor of a non-binding opinion from Indiana.
Irion also argues that his client’s rights to live in a constitutional republic are being compromised when provisions of the Constitution are ignored. He noted the argument from Obama earlier in the case that he won the 2008 election.
“Contrary to popular opinion, voters are not the final arbiters of whether an individual is qualified to hold office. In a constitutional republic the power of the majority is limited and cannot infringe upon constitutionally protected rights of a minority,” the brief argues. “The Constitution is an anti-majoritarian document; meaning that it protects individuals from invasions and usurpations by the majority.”
Top constitutional expert Herb Titus contends that a “natural-born citizen” is born of parents who were U.S. citizens at the time of the birth. The argument also is supported by a 19th-century U.S. Supreme Court decision, Minor vs. Happersett in 1875. The case includes one of very few references in the nation’s archives that addresses the definition of “natural-born citizen.”
That case states: “The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners.”
An extensive analysis of the issue was conducted by Titus, who has taught constitutional law, common law and other subjects for 30 years at five different American Bar Association-approved law schools. He also was the founding dean of the College of Law at Regent University, a trial attorney and special assistant U.S. attorney in the Department of Justice.
“‘Natural born citizen’ in relation to the office of president, and whether someone is eligible, was in the Constitution from the very beginning,” he said. “Another way of putting it; there is a law of the nature of citizenship. If you are a natural born citizen, you are a citizen according to the law of nature, not according to any positive statement in a Constitution or in a statute, but because of the very nature of your birth and the very nature of nations.”
If you “go back and look at what the law of nature would be or would require … that’s precisely what a natural born citizen is …. is one who is born to a father and mother each of whom is a citizen of the U.S. or whatever other country,” he said.
“Now what we’ve learned from the Hawaii birth certificate is that Mr. Obama’s father was not a citizen of the United States. His mother was, but he doesn’t qualify as a natural born citizen for the office of president.”