The Heroic Mr. Donofrio Will Not Succeed Where the Dems Failed to Tread

Men for Palin Blog ^ | December 4, 2008 | W. T. Howes

[Charlie Fairbanks]

Was BHO born in Kenya? Did he become a citizen of Indonesia? These are questions that were not throughly explored by the candidates who ran against BHO in the Democratic Party primaries and caucuses. Messrs. Berg and Donofrio are giving their own life blood to bring the question to a head, but their quest will end tomorrow when the United Supreme Court puts an end to Donfrio v. Wells.

[Charlie Fairbanks]

In order to get his name on the ballot in states with primaries or to qualify for participation in caucus states, President-elect Obama had to meet certain qualifications. There were legal qualifications peculiar to each state - usually a number of qualified nominating signatures, and there were constitutional qualifications as well. If he did not qualify on some ground, then his opponents were free to challenge his petition either in court before the chief election officer. The legal challenge is not a secret: It happens all the time.

Why didn’t Hillary Clinton, Bill Richardson, Dennis Kucinich, Al Sharpton, Mike Gravel or Jonathan Edwards raise the issue of BHO’s constitutional qualification to hold office?

One possible answer is that they did not know about the issue. I find it hard to believe that neither Hillary Clinton nor John Edwards knew. They are both lawyers. Their campaigns were well-funded, and as such both could afford very serious opposition research and legal support. Both are ambitious. Senator Edwards is very concerned about his hair, but Hillary does not share his hair obsession and is not squeemish where hardball politics are concerned.

One possible answer is that they did know and did not take BHO seriously enough to file legal challenges. That may have been true at one point, but BHO was a top-tier candidate by December at the very latest. There were very many filing deadlines after he became a first tier candidate. I was present at the New Jersey Elections Division when the Obama petition was filed. I was present to file the nominating petition on behalf of Fred Thompson. That deadline was about one year ago. It was clear at that point that Obama was serious. Clinton could have filed a challenge in New Jersey at that point.

Hillary Clinton had the standing that Leo Donofrio lacks. If BHO does lack the constitutional requisites for service, then Hillary fell down on her job as a candidate. Mr. Donofrio has done yeomans work trying to frame the issue but the issue is moot. You can’t remove someone from the ballot after the primary election and the general election are finished, and he has won. That job has to be done by candidates who have standing at the time of the filing deadline. Count Us Out is a blog that has taken a strong pro-Donofrio position. Count Us Out cites the case of McCarthy v. Briscoe, 429 U.S. 1317 (1976) as precedential support for the case. McCarthy supports only the procedural argument that the worthy Mr. Donofrio is making. However, it indirectly points at the argument that this blog has made.

McCarthy had standing to bring his proceeding. He was an actual candidate who was trying to get on the ballot and was barred from doing so by an unconstitutional state law. Much like the petition challenges of which I speak, the McCarthy matter had to be brought in time to print and distribute ballots and had to be brought by someone with legal standing.

If the allegations about BHO’s citizenship are indeed true, then this is yet another failure of the Democrats and the MSM. However, I harbor serious doubts about the merits of the case. Hilary Clinton had thorough research on BHO, the ambition to be president and at some point knew that he was a serious candidate. If he really did not qualify, she would have taken him out.

[Perdogg]

Alan keyes has standing.

[cripplecreek]

Go back to Fairbanks and continue voting Gravel, Charlie.

[Safrguns]

I find it very difficult to believe that the Supreme Court of the United States of America will knowingly swear in a constitutionally unqualified president because the “right” people failed to challenge his qualifications to run!

Is this the future of the Supreme Court????

WHEN IS THE SUPREME COURT GOING TO INTERPRET THE CONSTITUTION INSTEAD OF “PRECEDENCE”????????

[MashieNiblick16]

WHEN IS THE SUPREME COURT GOING TO INTERPRET THE CONSTITUTION INSTEAD OF “PRECEDENCE”????????

perhaps after the people revolt.

[capt. norm]

I was wondering if we'd ever again hear from the totally phony (like "factcheck.org") Men For Palin outfit.

A site and pseudo-organization constructed to act like the famous Trojan Horse.

You've been unmasked several times on this forum and yet you come back for more.

[savedbygrace]

Again: The 20th Amendment trumps your arguments.

The 20th, Section 3 says, “If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.”

The ‘winner’ does not become President elect until the Electoral College votes on the first Monday after the second Tuesday in December, so the 20th anticipates that the disqualification would happen AFTER the Electoral College votes and before the President elect is sworn in to office.

Therefore, the issue is not moot.

You are wrong. Election law does not trump the Constitution.

[capt. norm]

You're not as clever nor are you fooling as many people as you thought you could...but then liberals always overestimate themselves.

Sorry Charlie!

[savedbygrace]

Amen. Preach it, brother.

Seriously, after he starts a thread, ol’ Charlie just sticks his fingers in his ears and goes, “Lalalalalalalala” all day long.

[bvw]

Stare Decisis is death to any system of Law that uses it alone for process. Stare Decisis is a mortal disease the Society that has a system of Law that relies mostly on it.

Mathematicians, physicists and engineers would understand this naturally, as do thesaurus writers. In mathematics, consider the repeated addition of small solid angles. (See for example http://farside.ph.utexas.edu/teaching/336k/lectures/node12.html) Such additions do not commute. That is, the sum of a series of small rotations in space does not place a object in the same place as the pure mathematical sum of those angles. The place arrived at could be opposite and far from the place desired. So it is that a series of legal decisions each branched from the other, can up at ruling that is totally perverted from any semblance of moral sanity and be the twists and turns that end up in the distant result be inscrutable to any considering it.

It is also why by repeatedly using a thesaurus to replace a word or phrase with another one can end up with a meaning exactly the opposite of what was intended. Every ruling in a healthy vibrant system of Law in which the educated and moral participate as judges, advocates, juries and witnesses is informed with common law of the original intent. While rulings will consider prior similar rulings, and even more weigh a series of prior similar rulings, most rulings will also of themselves and obvious to all stand in accord with the common sense, morality and ethics of that original intent. By such rule are people happy and productive, and generations regard the wisdom of prior generations respectfully.

[orchestra]

Thats the way to pull those covers!

[The Sons of Liberty]

Berg is a Hillary man. For a long time, no one took 0bama seriously, so they didn't want to waste the effort. By the time it got to where he was a threat, Berg began working on it, but 0bama has had a long time to formulate and cover up. Besides, uncovering records of that nature in foreign countries, particularly ones like Kenya or Indonesia, is tough - if the records even exist.

Unfortunately, I'm afraid the SCOTUS is going to "take a pass" and look the other way with the reasoning being that one of zero's parents was a citizen, even though she couldn't pass on the "natural born" to 0bama. This is because SCOTUS won't want to appear to be taking political sides. Unfortunately, the end result will be further erosion of the Constitution and Rule of Law.

I pray I'm dead wrong!

[Menehune56]

Unfortunately, I think you’re dead right.

[ponygirl]

This is from usconstitution.net:

Currently, Title 8 of the U.S. Code fills in those gaps. Section 1401 defines the following as people who are "citizens of the United States at birth:"

• Anyone born inside the United States
• Any Indian or Eskimo born in the United States, provided being a citizen of the U.S. does not impair the person's status as a citizen of the tribe
• Any one born outside the United States, both of whose parents are citizens of the U.S., as long as one parent has lived in the U.S.
• Any one born outside the United States, if one parent is a citizen and lived in the U.S. for at least one year and the other parent is a U.S. national
• Any one born in a U.S. possession, if one parent is a citizen and lived in the U.S. for at least one year
• Any one found in the U.S. under the age of five, whose parentage cannot be determined, as long as proof of non-citizenship is not provided by age 21
• Any one born outside the United States, if one parent is an alien and as long as the other parent is a citizen of the U.S. who lived in the U.S. for at least five years (with military and diplomatic service included in this time)
• A final, historical condition: a person born before 5/24/1934 of an alien father and a U.S. citizen mother who has lived in the U.S.

Anyone falling into these categories is considered natural-born, and is eligible to run for President or Vice President. These provisions allow the children of military families to be considered natural-born, for example.

[fightinJAG]

I do think that it is highly unlikely that the SCOTUS will grant cert. in the Donofrio case.

There are a whole bunch of reasons for that, but that's my bottom line. I also generally am skeptical that Obama would ever be found ineligible. (Some of my skepticism comes from the fact that I would never draw such an important conclusion without it first having been comprehensively and expertly "briefed." The law and facts in this situation potentially are very convoluted.)

That said, I agree that there are significant and important issues raised here. Moreover, there apparently is a dangerous omission in our procedures: In short,

(1) no one---much less someone who is competent in the law and in gathering material facts---is responsible for actually verifying the elgibility of a President-select (it apparently is left to party hacks, if done at all); [See Delegate Selection Rules for the 2008 DNC.]

(2) if there are procedures for even paying lipservice to this task (such as the DNC "rules"), the procedures are private, conducted in secret and have no clear standards;

(3) here is no effective way for that process to be challenged;

(4) and there is no legally cognizable remedy.

[more here]

While it may be appropriate to leave most of the burden of vouchsafing the constitutional requirement that the President and VP be "natural born citizens" to the political process, the judiciary (in particular, the SCOTUS) must "help" that process when it is deficient---not by doing the Legislature's job, but by pointing out the deficiency and stating it needs to be fixed.

So my hope here, and the reason I have gotten involved in some of these threads, is that if (as expected) the SCOTUS denies cert., they do more than issue a one-word order. They can deny cert., but still accompany that with a statement expounding on the case.

For example, if they said there were denying cert. because it was the Electoral College's---or, somehow, Congress' responsibility---to verify eligibility and, hint, that requires normal administrative procedures, this would provide a basis to then militate for those procedures to be developed and implemented in this case---or at least in the future.

I don't think the law is clear as to what constitutes a "natural born citizen" in all its permutations. If, however, the SCOTUS denies cert. without comment, there'd be an argument in the future that having a citizen mother and a presumption (based on the short form BC) that one was born in the U.S. is enough.

However, this still would not fix the deficiency in our process. There is where I hope the SCOTUS will weigh in.

If they simply deny cert. without comment, that would not necessarily mean anything as to the *merits* of the case. If they deny cert. because, for example, insufficient facts have been raised or because it's not their job to get involved yet, if they don't say that, this issue likely is dead. If they explain the basis for denying cert. as in the example, however, then people would have greater leverage demanding Congress address the fact that apparently there is no regular way to make an official (and challengable) determination of a President-select's citizenship.

IOW, a one-word denial of cert. doesn't necessarily mean there's no "there" there in the case, but it will be taken that way by the Congress and public.

OTOH, if SCOTUS said something like "we can't and won't make a factual determination on elgibility (the SCOTUS is not a fact-finder), we can only review such a factual determination, but *no determination amenable to review* has been done in this case"---now something like that would get the ball rolling.

What I am hoping for is that the SCOTUS will give guidance that is helpful.

[EternalVigilance]

The end of the constitutional republic?

[cpdiii]

Your post is quite logical. However, it makes no sense for Obama to spend 100s of thousands of dollars fighting the release of his vault copy of his birth certificate. What makes even less sense is the DNC money that is being spent. Why in the hell would the DNC spend their political war chest on this instead of defeating conservatives.

The only logical explanation is there is a bad bad bad problem with Obama’s birthcertificat.

[browardchad]

Why didn’t Hillary Clinton, Bill Richardson, Dennis Kucinich, Al Sharpton, Mike Gravel or Jonathan Edwards raise the issue of BHO’s constitutional qualification to hold office?

Because they're all Democrats who could ill afford to alienate the black vote by disqualifying O. If Hillary had moved early on, over a year ago, before the primaries, when O was struggling to prove his creds in the black community due to his elitist background, she might have had a chance. But with whom would she have filed a challenge? It was certainly too early to consider him a viable candidate, since she was then considered a sure bet to be the nominee. It would have looked extremely mean-spirited to attempt to DQ someone who was a) touted as the Democratic hope of the future, post-2008; and b) not favored to win over Hillary. Later on, when he became a contender, it was too late, since she would surely have generated outraged charges of racism.

The same goes for John "Jermiah-Wright-is-Off-Limits" McCain, in addition to the fact that the NY Times, various liberal lawyers and Congess itself had raised the issue of his own eligibility well before the Convention.

As far as standing goes, Donofrio's charge was that all three candidates (including Cordero of the Socialist Party) are not "natural born," and were therefore ineligible to appear on the NJ ballot. He claimed that he had been harmed as a NJ voter in not having a choice of a Consitutionally qualified candidate to vote for, and that the NJ SOS was derelict in her duty to investigate the qualifications of the candidates (Cordero's not even a citizen). He filed before the election, asking that the vote be halted until the issue was addressed.

In denying the suit, the NJ SC used the argument that the SOS's duty is strictly "clerical," and it wasn't her responsibility to to verify the credentials of the candidates. They didn't mention the question of his standing in their opinion.

I think the chances of SCOTUS taking up this case are exceedingly slim, but not for the reasons presented above.

[quintr]

“...So it is that a series of legal decisions each branched from the other, can up at ruling that is totally perverted from any semblance of moral sanity and be the twists and turns that end up in the distant result be inscrutable to any considering it...”

And to that, I would add this note: So all the angst about the perhapsness of Obama’s being disqualified would pave the way for a McCain victory after all is just not going to happen. That’s because even if Obama were not qualified, his Vice President-elect would rise to the top of the heap, so to speak.

And then, can’t you just see it? Biden, in turn, could select Hillary for his Vice President-elect.

[bvw]

Thanks for slogging through that poorly constructed sentence!

I'm not sure who would be presiding as temporary President. We have the 12th, the 20th, few precedents in law, and Congress never seems to have enacted the laws that the 20th envisioned. In addition it may be that Obama committed fraud that was so egregious that his votes would be considered void, and thus that Biden would be eliminated.

Possible next Presidents include:

• Obama
• Biden
• McCain
• Palin
• Pelosi
• Bush
• Unknown