[Charlie Fairbanks]

In the weeks that have passed since the general election, there has been much legitimate debate in the conservative blogosphere about President-elect Obama’s citizenship. The debate follows litigation filed by Phil Berg (Pennsylvania), Leo Donofrio (New Jersey) and Alan Keyes (California). All three of those suits raise interesting points of law and fact. The bottom line is that no court will - or should - now bar BHO from taking office in 2009.

Some well-established principles of election law have been at work in the Obama case: Voter choice, ballot clarity and efficient administration of elections, to name three. Unfortunately, none of the interested bloggers have discussed these principles.

President-elect Obama was nominated in each of the fifty states (except Michigan), Puerto Rico and the District of Columbia in the manner mandated by the election law established in each of those jurisdictions. There are general principles of election law that underlie the process in each state and territory. A nomination is established, with a few exceptions, by a nominating petition filed by the legal deadline with the chief election law in the state or territory. There are a minimum number of signatures required, and qualifications for people who sign the nominating petition.

There are a number of ways that a petition can be deficient. If a petition is deficient, the appropriate election officer can refuse to permit the candidate on the ballot. If that does not happen, the petition is subject to legal challenge by opposing candidates. There is a very short window of opportunity for such a challenge. Bases for petition challenges fall into three basic categories: (1) Insufficient number of qualified nominating signatures; (2) technical deficiencies; and (3) the nominee lacks legal or constitutional qualifications or suffers from a constitutional or legal bar to serve in the particular office.

The reasons for the short time period for petition challenges are clear: The ballots must be prepared in a timely and orderly manner. Once they are prepared, the voters and the candidates then can rely on the ballot as prepared by the election official. In that time-honored manner, the voters know what their choices are and can be confident that their choice will be honored.

In the Obama case, not one of his opponents challenged any one of his petitions in any state or territory. Election litigation is one of the hallmarks of the Democratic Party. Indeed, President-elect Obama has benefitted from outstanding lawyering both in his initial State Senate election (in which his lawyers had the incumbent disqualified) and in his U.S. Senate election (in which his lawyers were able to push the incumbent out of the race). Sentator Clinton had dozens of outstanding election lawyers on her team. Some of her political allies served as chief election officers in the states and territories. She had the knowledge. She had the opportunity. She had the ambition. And Team Clinton is certainly capable of hardball politics.

Despite all that, Senator Clinton did not challenge any of the Obama petitions based on his legal or constitutional qualifications to hold office. Why? Lack of gumption? No. Lack of knowledge? No. Lack of resources? No. Perhaps Senator Clinton did not make such a challenge because her research indicated that BHO was legally and constitutionally qualified to hold the office.

Interested observers have asked: Well, why didn’t Obama produce his vault birth certificate to be examined in a court of law? The answer is easy: Because the legal issue was never properly framed in a petition challenge.

Now that the general election has taken place, it is too late to disqualify a candidate. The electorate in the states and territories had a very long period in which to consider their choices both in the primary and in the general. No court should now reverse those elections and the choices of one hundred and twenty million people. To do so would be to invite legal and civil chaos. To do so would create a power vacuum which could be a national security threat.

Citizenship will remain as a political issue for many, and it may return as a legal issue once the future President Obama begins to file nominating petitions for his re-election. But for now, the citizenship is moot as a legal issue where the 2008 election and 2009 inauguration is concerned.

Charles W. Fairbanks is the nom de plum for one of Men For Palin’s founders. He is an experienced election lawyer. MFP will be happy to provide a link to show his bonafides as an election lawyer in response to a bona fide request for information submitted by email to fairbanks@menforpalin.com

[savedbygrace]

The 20th Amendment says otherwise. The 20th says, “if the President elect shall have failed to qualify”, not, “if a candidate for a political party shall have failed to qualify”.

Election law does not supersede the U. S. Constitution.

[KC Burke]

When this arose, if Obama possessed a valid birth certificate, why produce it?

Holding it back makes those asking for it look xenophobic and racist in this PC world. If it is ever really an issue that rises to actually provide any leverage on his coronation, its production will be high drama and legendary belittlement of the racist rightwingers.

We live in a time where many people don’t know the birthplace and history of their own grandparents. They will feel kinship across all lines of race with The ONE.

[devere]

Obama troll

[HANG THE EXPENSE]

Sorry charlie,aint buyin it.

[classified]

http://www.youtube.com/watch?v=GqH7rSHcvgU

[MrEdd]

It is not at all moot.

I will point out to you (since you aren’t bright enough to know it already) that all questions of national direction and government do not wind up being decided by courts.

Thank you for playing.

Next contestant.

[rockinqsranch]

“Interested observers have asked: Well, why didn’t Obama produce his vault birth certificate to be examined in a court of law? The answer is easy: Because the legal issue was never properly framed in a petition challenge.”

As for most real American Citizens, producing a valid Birth Certificate is quite easy to do, and less costly than to retain an Army of legal authoritarians to not produce one. Explain why then Mr. Obama chose the more costly and evasive route.

The Democrats and their minions in the MSM kept the issue of Natural Born Citizen out of the news as an issue until after the election, and then it was barely mentioned. The issue has been front and center in the “New Media” however, and I for one applaud the efforts of those participating in the attempt to thwart the precedent setting tactic the efforts of Mr. Obama, and the Democrat Party will inevitably produce.

Contrary to your opinion expressed, I believe this is not an issue we the people should allow, turn our backs on, shrug our shoulders, and simply say “Oh Well”, and allow our Constitution to become the “Living, Breathing” document the Democrats have claimed it to be, which is I believe a part of their goal. Why else fight such a simple act as producing a Birth Certificate with such vigor, and cost?

[RC2]

Democrats can put all the fancy words they want to around this issue and tie it up with a big red bow. The fact remains that the people of this country still have questions......even Democrats. All Obama has to do is show the Birth Certificate and the Selective Service documents and the issue would come to an end. No fancy words.....just follow the Constitution.

[Godebert]

"No court should now reverse those elections and the choices of one hundred and twenty million people. To do so would be to invite legal and civil chaos. To do so would create a power vacuum which could be a national security threat."

Fairbanks's arguement is basically that the Constitution is trumped by the threat of a bunch of leftists rioting in the streets.

[mad_as_he$$]

Ahh you are lawyer, noobie. Nothing is ever moot for true conservatives. Take your compromise attitude and stick it noob.

[DannyTN]

BS. I agree with the basic premise that proper vetting should have occured during the nomination process and/or the ballot determination process. But it's not too late. There is no process in place, so the courts must intervene. The lower court And the courts need to insure a process exists until legislature acts. What needs to happen now is this:

• The supreme court needs to determine what the founders meant by natural born.
• The supreme court also needs to determine whether the alleged president-elect is qualified to hold office.
• The court needs to outline a process to determine and challenge eligibility in the absence of a legislative solution.
• Individual state legislatures should require proof of citizenship in order to place a candidate on their ballot.
• Congress needs to define a process and assign responsibility prior to future elections to insure eligibility. They just need to be careful not to trample on state rights as to method of selecting electors in the process.
• If Obama is ruled by the courts to be inelligible, then Obama and the DNC needs to quickly and very publicly admit fault to quell obamabot unrest.

It wouldn't take many states to soon force candidates to reveal their eligibility and the major parties knowing that entire states would be at risk, would then be sure to take steps to verify eligibility.

It wouldn't hurt to have both states and Federal processes to verify eligibility, because you don't want that power to rest in just one person's hands.

[McGruff]

Charlie,

Go hump your blog someplace else. This is a discussion forum.

McGruff

[Peter Horry]

“Now that the general election has taken place, it is too late to disqualify a candidate”

Interesting, we have gone from “nothing to see here” to “it is to late to disqualify a candidate”.
There are two basic questions involved here:
1. Does Sen. Obama meet the stated requirements to be Pres. Obama?
1, If he does not meet the requirements, then how was it allowed to happen (had to have been negligence or Malfeasance involved). What is the remedy of such action, if we are to remain an orderly society there has to be one?

Seems like a lot of people are working overtime to suppress/obscure this issue, I wonder why?

[Savage Beast]

Perhaps so, but what will prevent the resulting Constitutional crisis if, after his inauguration, it is proven that President Obama is not a U.S. citizen and therefore unqualified to serve as President or to perform the functions thereof? Will his actions be legal? Will they survive challenge in the courts? Will the courts declare the citizenship requirements of the Constitution to be null and void? Will they declare the entire Constitution to be null and void?

[tomkat]

Sounds like leftover Neville-ese

(with a generous helping of cut/run re the Constitution)

And 'welcome' to FR

[Thombo2]

Interesting pov.Too late to challenge O’s claim of US citizenship?I don’t think so.If O intentionally deceived the American public(bogus COLB)-that’s fraud-a felony.Furthermore,if he perpetrated said fraud with the support of others(very likely)add conspiracy to commit fraud.Very serious charges with serious penalties.Just because he is president elect-he is not immune.We have every right as American citizens to verify his status.

[Spiff]

The "nominating petition", as you call it, is on its way to the Electoral College for the electors to vote, state-by-state, on who will be the next President. The challenges, valid or not, should be brought up now before the Electoral vote.

And then there's the Certificates of Vote, another "nominating petition" that is sent from the electors to the President of the U.S. Senate (the Vice President). Then a joint session of Congress is held to certify the election, declare the result of the vote, and declare - if there is a clear majority and no objections - who has been elected.

This process offers a number of opportunities to throw a wrench into any attempts to steal an election. Faithless electors, that is those who don't vote for the candidate for whom they were "pledged" could lead to a decision made in the House of Representatives. Or objections raised during the joint session could conceivably lead to the disqualification of a candidate. In this case Congress would have to pick from the top 3 candidates who received the most electoral votes. If Obama is disqualified, the only other choice would be McCain because no other candidate, as far as I know, received any electoral votes. Of course, the faithless electors could vote for some other candidates (other than Obama or McCain) which would put the contest between McCain and the top 2 candidates that would emerge in that situation.

By law, can the electors cast votes for candidates who are not eligible? I don't think so.

By law, can the President of the Senate accept votes from the electors for candidates who are not eligible for the office of President? I doubt it.

By law, can the President of the Senate declare as winner a person who is not eligible for the office of President? I hope not.

[tomkat]

The needle's about to peg on this troll.

50some posts and nary a response

just sayin'...

[missnry]

To My Fellow Conservatives: The Legal Issue of BHO’s Citizenship is Moot (for now)

IF a person is going to call themselves a "CONSERVATIVE" the first thing they should want to do is to OBSERVE and FOLLOW the CONSTITUTION of the United States of America.

Barack Hussein 0bama Jr. at this point has produced a felonious Certificate of Live Birth on his website and REFUSED to show the world his actual birth certificate!

People are really suffering from RCI (Rectal Cranial Inversion) on this site lately. Every red blooded conservative should be storming the capitol at this point until the alleged American produces what is REQUIRED of him. Produce the birth certificate or the electors cannot elect him.

[50mm]

SNIFF