On the Radio 06.30.12

June 29, 2012

UPDATE 06.30.12:  AT END

Join us on Saturday when TX citizen/activist Kelly Canon and I discuss alternative ways to keep off the 2012 general election ballot the name of the Presidential candidate who documentary evidence exposes was never federally qualified for the job.  Call in number is 714.242.5220. (If you cannot tune in tomorrow; you can listen to the archived show, by visiting the same link.)

Texas, We Have a Solution (Maybe)!

UPDATE 06.30.12:  We just finished the show and, having listened to the entire playback, I must say; it is absolutely fabulous. It offers a comprehensive synthesis of our work on ballot eligibility issues, from who determines whether a candidate is “federally qualified” to appear on the ballot; to how the executive branch carries out the express intention of the legislative branch for ballot entitlement; to how joining the National Popular Vote Initiative can subvert the strongest ballot eligibility laws.

(Or, as Kelly would say, we covered everything ‘from soup to nuts.’)


TEXAS, WE HAVE A PROBLEM.

April 30, 2012

© 2012 jbjd

UPDATED 05.01.12 (15:00 EDT): See below.

This morning, kjcanon, from Arlington; and Native Texan, from Calvert; met in Austin with Attorney Keith Ingram, Election Director, Texas Secretary of State, for what kjc and NT had scheduled would be an “in-depth” discussion of “the Texas election process.” With kjc’s help; I drafted the letter which served as the basis for that ‘discussion,’ in which we synthesized the key glitches we had worked to identify in the Texas electoral process, insofar as these problems related to the job qualifications of candidates whose names appear on the Texas ballot. kjc meticulously assembled a folder containing documentary evidence that backed up these allegations. kjc and NT also provided a narrative of their personal experiences trying to obtain voting related information. The meeting began at 10:30 AM; it was all over by 11:03.

Before reading my report of the results of that meeting, which were conveyed by telephone to me, shortly thereafter; please, read the letter. Trust me: it’s the only way to fully grasp the nature of Mr. Ingram’s response to the presentation.

View this document on Scribd

(If you have trouble viewing this document in Scribd; here are jpeg images of that same letter.)

In short; here was Mr. Ingram’s response. (My abbreviated editorial comments follow, in orange.)

You gave me assertions only; you have not given me any facts. (Obviously, we not only gave you facts but also offered to give you documentary evidence to back up those facts.)

All the information voters need is on VoteTexas.gov. “I would even call it impeccable.” (Yes; you may call the information you provide, impeccable; but not if the Secretary’s purpose in posting that information is to inform the voters. Because we are voters and, we just reported to you that we, along with numerous other Texas voters disagree that the Secretary provides adequate information so as to cast an informed vote. Are you blaming us voters for failing to intuit election related information that’s not on your web site, such as the ‘fact,’ candidates are using at least 3 (three) different ballot applications? Are you rejecting all suggestions that we voters get to decide what  information we require to cast informed votes in the election?)

The Secretary of State has no enforcement power; go to the Legislature. (We are not asking you to enforce anything; rather, we are asking you to tell us what you know about how candidates access the ballot; which are the same things we need to know to become informed voters.) (The TX legislature is not in session until January 2013.)

We’re not required to post completed party application forms. (That’s precisely why we didn’t cite a law requiring you to post these applications and, instead, cited to your promise to appropriately inform voters regarding elections.)

If you want to challenge the ballot, go through the courts. (And say what, that we are Unaffiliated or Write-in candidates who are being denied Equal Protection of the law inasmuch as only we are required by the SoS to swear to Constitutional eligibility for office in order to get on the Texas Presidential ballot, whereas the Republican and Democrat candidates only fill out the party’s application?) (Or are you just trying to send us on a wild goose chase, like your colleague tried before you, alleging a legal violation when, by merely withholding information from the voters; no one has actually broken any laws?)

I always say, any answer is an answer. That is, we now know, the Elections office will not act on our request, on its own. So, to get action on the proposals and problems pointed out in the letter; we are following the chain of command – Mr. Ingram > his boss, Secretary Andrade > her boss, Governor Perry – until the buck stops. (That is, whoever is left with the final decision to amend the Secretary’s operations. This will likely be Ms. Andrade.) That’s where we will concentrate our efforts to ensure whatever steps necessary to make the information referred to in this letter available to all Texas voters. Assuming this means getting Secretary Andrade to act; I will again provide a ‘complaint,’ of sorts, for downloading and sending, which will be a re-format of the letter for wider use and distribution, and will include links to appropriate documentation. Fortunately, the Secretary’s web site suggests that voter concerns are transmitted electronically.

Of course, convincing the Secretary to shore up her operation will not resolve the problem of candidate ballot eligibility, which will require legislative action, up to and including calling an emergency session before the Presidential election. And, if more people understood the mess that is the current ‘system’ of getting candidates on the ballot; well, presumably they would be sufficiently outraged to demand such an emergency session and, to require the passage of appropriate legislation.

That said; with a few simple alterations in the rules; at least, the Secretary could achieve a uniform standard of candidate ballot application. But, as can be inferred by the attitude of Director Ingram; she is unlikely even to do that without massive citizen action. And that’s where you come in. If you can get fellow Texas voters to understand all of this election related material then, feeling like you feel now, they will be inspired in sufficient numbers to mobilize to require changes in the administrative procedures currently in place in the Office of the Secretary, including both posting the requested information and, making the rules apply equally to both unaffiliated and party candidates.

Because once we achieve widespread distribution of the information referenced in these complaint letters; no doubt enough voters will become sufficiently mobilized to demand the necessary candidate ballot eligibility legislation.

UPDATE 05.01.12 (15:00 EDT): kjc hand-delivered a follow-up letter to Mr. Ingram’s boss, the Honorable Hope Andrade, Secretary of State of Texas.

View this document on Scribd

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Please show your support for the work going on at “jbjd.”


PAYDIRT

April 14, 2012

© 2012 jbjd

I have been saying for years now that, in those states which by law only allow on the ballot the names of candidates qualified to fill the offices they seek; political party officers certified to election officials that Barack Obama’s name should be placed on the ballot notwithstanding no documentary evidence available in the public domain established he was Constitutionally eligible for the job and, therefore, such certification was made without verification.

Not everyone agreed.

I first posted OUT of the MOUTHS of BABES in January 2010; it has remained one of the most popular posts on the “jbjd” blog. It describes my exchange with 9th graders in a U.S. History I class, during a lecture in which I detailed the interplay between the requirements for President found in Article II, section 1 of the Constitution; and real life, as played out with respect to the 2008 general election. Basically, I told the students that the Honorable Nancy Pelosi, then Speaker of the U.S. House of Representatives and Chairperson of the 2008 DNC Services Corporation Presidential nominating convention; ignored public requests to disclose the documentary basis for her certification that Barack Obama met the Constitutional qualifications for the job. And DNC Corporation’s general counsel, Joseph Sandler, responded to such inquiries by reminding petitioners, his was not a public agency and so, did not have to disclose the basis for that certification. The students concluded in the first instance, no one checked. In the second instance, they assumed, someone had but, did not like the results.

Others have based their interminable claims that Mr. Obama’s Constitutional eligibility for President is a ‘given’ on such nebulous evidence as contemporaneous newspaper birth announcements (supposedly) available on microfilm or microfiche; or a birth certificate or certification (presumably) indexed in a government record. My response has always been to acknowledge that, I hear what others think establishes the man’s eligibility; but I want answers from party officials who are legally responsible for placing his name on my state ballot. Further, I insisted that if these often cited ‘alternative’ sources actually provided a standard of authentication; then when they were asked, those same officials would have asserted these sources as the basis for their certification.

Indeed, all along I have maintained that none of those party officials who swore to election officials in a ballot eligibility state, Barack Obama was eligible to have his name placed on the ballot since he met the federal requirements of the job; had verified the truth of that certification. I have finally obtained the evidence that proves, all along, I was right.

I will post this evidence in a few days, after all the ‘i’s’ are dotted and the ‘t’s’ crossed on the document for which such evidence was an integral component.

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Freedom costs.


MISSING the FINE PRINT in GEORGIA

February 6, 2012

©2012 jbjd

I will make this brief, because ever since ALJ Malahi issued the ruling adverse to Complainants at the administrative hearing on the ballot challenge in GA; I have been swamped by disillusioned ‘Minor v. Happersett‘ ex pats now ‘willing’ for the first time to try to shift the burden of proof (and production) as to whether President Obama is a NBC, onto those people who swore he was, the seminal point in the eligibility ‘cures’ I first proposed more than 3 years ago now, before the name Barack Obama was printed on state general election ballots.

(Note to those ‘birthers’ rendered depressed by Malihi’s findings (after raised artificially high by Orly’s ‘false flag,’ ‘I won!!! I won!!!’): just because an ALJ in GA says, MvH’s mention of the phrase NBC doesn’t mean what Leo Donofrio says it means; doesn’t mean, it doesn’t mean what he says it means. Or that Leo generally doesn’t know what he is talking about. Of course, as I wrote in jbjd’s FRENEMIES LIST, MvH’s use of the phrase NBC doesn’t mean what Leo says it means; and Leo doesn’t know what he is talking about. (I wrote this article before ALJ Malihi decimated Complainant’s reliance on MvH; although I believe he overstepped his lawful authority by ‘ruling’ on the meaning of NBC as that term appears in the U.S. Constitution; and by citing as precedent for a decision in a GA (11th circuit) administrative hearing, a decision by an IN (7th circuit) state appellate court, worse, in a state not even in the same (federal) circuit.) http://www.uscourts.gov/court_locator.aspx

At the risk of exposing myself as the only birther in the room able to view the recent events in GA from the ‘glass half full perspective'; I want to point out, in fact, a lot of good news came out of this fiasco. For example, counting down in no particular order of import:

5. Citizens of GA made a modest effort to take control of their state ballots using their state laws. High 5! (Now, if they would only have the self-confidence to do so on their own, that is, without inviting in all of these outside agitators! And speaking of outside agitators, it seems completely incongruous to me that the same people who eschew creeping federalism would invite into a ‘local’ state election law scrimmage; coaches and fans from across the country with the hope that by doing so, they somehow tilt in their favor the decision of the local referee!)

4. By participating at any stage in these ballot challenge proceedings, from formulating the legal cause of action setting off the event as well as the legal theory underpinning the charges; to drafting the documents; to representing the parties, to promoting and providing  coverage of the spectacle, which culminated in a live broadcast of the evidentiary hearing; those involved afforded people across the country the opportunity to see for themselves that the money they had been donating to such ’causes’ was being frittered away by a cast of characters with no business near a hearing room, let alone a courtroom. (Maybe now they will stop funding this litigious juggernaut. NOTE TO THOSE WHO STILL FAIL TO ACCEPT, THESE PEOPLE HAVE NO IDEA WHAT THEY ARE DOING: art2superpac, the same-old-limited-thinkers-in-the-birther-game-disguised-as-the-new-kids-on-the-block; are now soliciting funds to mount a legal challenge to ALJ Malihi’s ruling. Without attacking the credibility of this ‘configuration’ of the familiar cast of birther characters; let me just assure you, a challenge of this decision has even less chance of success than the original action.)

And now – I told you, I am in a hurry – the best news from GA has nothing to do with anything said or done by either Complainants or ALJ Malihi. Can you guess what that is? (HINT: what did I say was the best news coming out of the equally legally infirm Hollister case, from January 2009?)

1. Attorney Jablonski, by submitting a Motion to Dismiss in which he argued the inviolate right of the political parties to choose their candidates for the state election ballot; as opposed to the party’s right to have the name of its chosen candidate printed on that same ballot; confirmed that the way to keep Constitutionally ineligible candidates out of the WH was to keep their names off the state ballot.

View this document on Scribd

Because political parties don’t have a right to put the names of ineligible candidates on the ballot in states that limit ballot inclusion to only those candidates qualified for the job.

Some of you have reported, state officials respond to your complaints by insisting they have no right to tell the parties which candidates they may choose. You have indicated, they appear to be trying to fob you off. I have encouraged you not to argue but, instead, to respond as if they are sincerely misreading your intent. Concede the obvious. ‘Of course, state officials have no right to tell the parties which candidates they may run for office! It would be silly to think otherwise. That’s why I am not complaining they picked an ineligible candidate – they can pick anyone they want; I couldn’t care less – and I am not asking you to countermand their choice. But I do care about my state laws; and in this state, we don’t print the names of ineligible candidates on the ballot. So, I just want to make sure my state officials aren’t printing the names of those ineligible candidates on my ballot.’

Now, stop leaving your democracy in the hands of this crazy cast of characters; and write the damn laws. HOW to WRITE SMART CANDIDATE ELIGIBILITY LAWS in your STATE (and make applying to get on the ballot harder than applying to get into Harvard)  Then, make sure the rules are in place to carry out these laws. (I still can’t believe while these people went to all that trouble to file a ballot challenge on the basis of eligibility; they didn’t bother to ask the SoS to promulgate rules to carry out the GA ballot law.)

If your state already has a candidate ballot eligibility law; petition the SoS to promulgate emergency rules to carry out the intention of the legislation. There is no legitimate reason these cannot be in place by the time these same state officials receive the DNC Service Corporation’s Certification of Barack Obama’s 2012 nomination.

Finally, let me remind you, by writing smart candidate eligibility laws, you will not only guarantee that only the names of eligible candidates will appear on the ballot; but you will also lead the way to reach the federal appellate court with a case on point so as to obtain a legally binding definition of NBC. That is, the parties will, undoubtedly, protest these laws. (‘It’s unConstitutional for you to define NBC!’) And, of course, the state’s reply? ‘We are not defining NBC, as that term is used in Article 2, section 1 of the U.S. Constitution! That would be illegal! We are only defining, the names of which candidates we will print on our state ballots.’

Now, re-read HOW ADOPTING the “NATIONAL POPULAR VOTE INITIATIVE” CAN STEAL an ELECTION ‘BY HOOK’ and ‘BY CROOK’

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Freedom costs.


IT WAS A GOOD TIME; IT WAS THE BEST TIME; IT WAS A PARTY

January 28, 2012

©2012 jbjd

The party in Georgia is over. And now, having been asked several times both here and on other blogs, what I predict will be the outcome of Thursday’s OSAH hearing in Georgia before Administrative Law Judge Malihi and, further, how Secretary Kemp will proceed in light of the ALJ’s determination; I will tell you what I think.

However, I am not privy to the record in this case and so, I am basing any speculation as to the posture of this case; on publicly available documentation. And I have no contact with anyone else who has privy to the record in this case (although this probably makes no difference as to the caliber of my prediction).

(Having access to the people directly involved would not mean that I would obtain reliable information from them, a fact made unambiguously clear when several people directly involved with the case instigated a massive public campaign of misinformation with a self-serving pronouncement that, the judge in a court of law had ordered President Obama to appear, when he had only refused to grant Respondent’s Motion to Quash Petitioner’s Subpoena. Yes, I agree the press can be blamed for their role in disseminating this propaganda by failing to investigate these claims before streamiing them into syndication; but in my opinion, this makes the attorneys involved doubly culpable for ‘blowing’ this incredible opportunity thereby provided, to educate people, instead, converting it into their personal platform to spread paranoid, error laden, hyperbolic rants.)

Finally, of course, is the fact that, notwithstanding all other considerations, when it comes to predicting a decision by any ruling authority; in fact, your guess is as good as mine.

RUMOR ALERT: Some people have insisted that before the hearing, the lawyers present met with the ALJ, who offered to “Default” Obama for not showing up. At that point, any one of the Petitioners – not just Farrar, who had issued a subpoena for him to appear so as to give “sworn” testimony – could have made a request to the ALJ, in the form of a motion, as prescribed by Rule 11; to default Obama. Or, the ALJ could default Respondent, sua sponte, that is, on its own.

But let’s say, an ordinary citizen files a complaint with the SoS that ends up in the OSAH and the Respondent bails the fact-finding hearing. S/he is likely to look up, IN ADVANCE, how this conduct would impact the proceedings.

Starting from the OSAH home page, I first found the hearing calendar and, from there, a link to Frequently Asked Questions (by parties to these proceedings).

In particular, consider that these guidelines indicate, if the Complainant is late to the hearing; the case “can be” dismissed; and if the Respondent doesn’t appear; the case “can be” decided without his input. In other words, where the burden is on Petitioner; showing up late could mean, the case was dismissed before you arrived. (More on “burden” soon.)

I, of course, looked up the section of the Administrative Procedure rule regarding default, which, again, are accessed from the OSAH home page. But before I post this, understand the meaning of the word “party” as used in the statute and corresponding rules. (Note: the statute creating the OSAH is written by the legislature, and signed into law by the governor. A provision of that law tells the head of OSAH to promulgate rules and regulations necessary for that office to carry out its legal mandate, as spelled out in the statute.)

O.C.G.A. § 50-13-2
GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 50.  STATE GOVERNMENT
CHAPTER 13.  ADMINISTRATIVE PROCEDURE
ARTICLE 1.  GENERAL PROVISIONS
O.C.G.A. § 50-13-2  (2011)

§ 50-13-2.  Definitions

As used in this chapter, the term:

(2) “Contested case” means a proceeding, including, but not restricted to, rate making, price fixing, and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing.

(4) “Party” means each person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party.

(5) “Person” means any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than an agency.

(5.1) “Record” means information created, transmitted, received, or stored either in human perceivable form or in a form that is retrievable in human perceivable form.

(6) “Rule” means each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of any agency.

Now, here is the Administrative rule on Default. (Again, I reached these rules through the OSAH home page.) All emphasis is mine.

RULES
OF
OFFICE OF STATE ADMINISTRATIVE HEARINGS
CHAPTER 616-1-2
ADMINISTRATIVE RULES OF PROCEDURE

616-1-2-.30 Default. Amended.
(1) A default order may be entered against a party that fails to participate in any stage of a proceeding, a party that fails to file any required pleading, or a party that fails to comply with an order issued by the Administrative Law Judge. Any default order shall specify the grounds for the order.
(2) Any default order may provide for a default as to all issues, a default as to specific issues, or other limitations, including limitations on the presentation of evidence and on the defaulting party’s continued participation in the proceeding. After issuing a default order, the Administrative Law Judge shall proceed as necessary to resolve the case without the participation of the defaulting party, or with such limited participation as the Administrative Law Judge deems appropriate, and shall determine all issues in the proceeding, including those affecting the party in default.
(3) Within ten (10) days of the entry of a default order, the party against whom the default order was issued may file a written motion requesting that the order be vacated or modified, and stating the grounds for the motion.
(4) The Administrative Law Judge may decline to enter a default or may open a default previously entered if the party’s failure was the result of providential cause or excusable neglect, or if the Administrative Law Judge determines from all of the facts that a proper case has been made to deny or open the default.
(5) If a party fails to attend an evidentiary hearing after having been given written notice, the Administrative Law Judge may proceed with the hearing in the absence of the party unless the absent party is the party who requested the hearing, in which case the Administrative Law Judge may dismiss the action. Failure of a party to appear at the time set for hearing shall constitute a failure to appear, unless excused for good cause.

Respondent’s absence from this hearing despite an in effect subpoena to appear could have triggered the sanction of Default, but only with respect to Respondent. This would mean, the record would have been foreclosed as to him, absent a successful appeal of the Default Order. And all of Petitoners’ evidence would have been submitted into the record without objection from the other side.

(Or, in the alternative, Petitioners could have sought an Order to Appear. We already know that only the Superior Court can issue such an Order, on Motion of Plaintiff (who in the OSAH is the Petitioner). Petitioner’s/Plaintiff’s Motion to the Superior Court can be accompanied by the ALJ’s certification as to the facts which led to this point.)

616-1-2-.22 Hearing Procedure. Amended.

(5) Upon application by a party, the Administrative Law Judge shall certify the facts to the
superior court of the county in which a party, agent, or employee of a party:
(a) disobeys or resists any lawful order or process;
(b) neglects to produce, after having been ordered to do so, any pertinent book, paper, or
document;
(c) refuses to appear after having been subpoenaed;
(d) upon appearing, refuses to take the oath or affirmation as a witness;
(e) after taking the oath or affirmation, refuses to testify; or
(f) disobeys any other order issued by an Administrative Law Judge
for a determination of the appropriate action, including a finding of contempt.

Rumor is, ALJ Malihi asked whether Petitioners wanted him to enter such Default; but, reportedly, they said, ‘No.’

Supposedly, although they have entered this same ‘evidence’ into dozens of other records, they did not want to waste this opportunity to submit testimonial evidence into this record, providing ALJ Malihi with a first-hand opportunity to gauge the credibility of their witnesses, under some mistaken belief, submitting this evidence into the record of this administrative hearing without objection from Respondent, automatically validated their submissions. Then, if they won, they could file yet another suit in a real judicial court based on ‘evidence’ certified by the OSAH (but which was outside of the scope of that forum’s expertise or authority) President Obama is Constitutionally ineligible for the job.

616-1-2-.22 Hearing Procedure. Amended.
(1) The Administrative Law Judge shall conduct a fair and impartial hearing, take action to
avoid unnecessary delay in the disposition of the proceedings, and maintain order. The
Administrative Law Judge may, among other things:


(3) Whenever any party raises issues under either the Georgia or United States Constitution,
the sections of any laws or rules constitutionally challenged and any constitutional provisions
such laws or rules are alleged to violate must be stated with specificity. In addition, an allegation
of unconstitutionality must be supported by a statement either of the basis for the claim of
unconstitutionality as a matter of law or of the facts under which the party alleges that the law or
rule is unconstitutional as applied to the party. Although the Administrative Law Judge is not
authorized to resolve constitutional challenges to statutes or rules, the Administrative Law Judge
may, in the Administrative Law Judge’s discretion, take evidence and make findings of fact
relating to such challenges.

Or, if they lost; they could use this record as the basis for an appeal filed in a subsequent judicial proceedings.

616-1-2-.39 Judicial Review. Amended.
Pursuant to the APA, a copy of any petition for judicial review of a Final Decision shall be filed
with the Office of State Administrative Hearings by the party seeking judicial review
simultaneously with the service of the petition upon the Referring Agency. The Referring
Agency shall submit the hearing record as compiled and certified by the Clerk to the reviewing
court.

Of course, they would be very very wrong.

Assume the ALJ allowed all of Petitioners’ materials into the record AND, believing their witnesses genuinely believed everything they said AND reviewing the record, took all evidence as true, and issued findings of fact based on this record. And assume Petitioners subsequently used this administrative record in a real judicial proceeding. Any judge would toss this tripe based on a finding, by crediting this ‘evidence’ the previous tribunal had acted in a manner that was both “capricious and arbitrary” and “contrary to law.”

Then again, maybe petitioners didn’t end the proceedings when ALJ Malihi gave them the option; just so as not to let the cameras go to waste.

At any rate, if this rumor is true that Petitioners could have moved for an Order of Default which would have been granted and which still would not have foreclosed the opportunity to provide live testimony as well as additional documentation then, these people are more incompetent than even I thought. More about that below.

Now,  about what actually happened and what will be the result.

When state law requires that all candidates whose names are printed on the ballot must be qualified for office; in theory, exercising a state ballot challenge will work to keep off the ballot the name of an unqualified candidate in that state, depending on the language of the laws in that state. That’s why I proposed this venue for redress (in those states with candidate eligibility laws) in the first place. And, by using a ballot challenge, the crazies who appeared at the OSAH hearing in Georgia yesterday before Administrative Law Judge Malihi, for the first time were not barred from proceeding because of a procedural flaw, such as lack of standing. Indeed, it was this new-found feeling of not being kicked out before the proceeding which produced this nonsensical elation from Petitioner Farrar’s counsel – “I won!!! I won!!!”

But the ballot challenge they presented in this case won’t work not just because they have no idea what they are doing; but because they made the wrong case.

For example, as I have been saying for years now, you cannot win an eligibility case based on a claim Barack Obama is not a NBC. Instead, you can only claim no documentary evidence available in the public record evidences he is a NBC; or that others, including D party officials who claimed he was a NBC refuse to disclose the documentary basis for such claim..(Even better, you can charge that such official with a duty to disclose refused your request!) You cannot charge Barack Obama is not a NBC because his father was not a U.S. citizen. (As I recall, this ‘legal’ fiction originated in 2008 or 9 with Leo Donofrio.) You cannot use non-experts as experts; or printouts of internet postings as documentary evidence. (You CAN, however, use these postings as evidence of other claims in your case, such as the fact, the candidate posted an image.)

A ballot challenge will not succeed where the Petitioner mistakes the forum (referring to the Executive session as a Judicial proceeding); or where he misstates the law (the court in Minor v. Happersett does not limit a definition of NBC to citizens with 2 citizen parents). It won’t succeed where Petitioner or his associates, colleagues, and attorneys have filed multiple challenges; or have a history of failure at such challenges; or a history of bizarre conduct in public; or have earned a reputation as kooks. (Give up, if your lawyer puts herself on the stand.)

But let’s assume, in Thursday’s hearing, Petitioners had miraculously cured all of these infirmities. The question then is, what does it mean to Farrar’s ballot challenge that President Obama ignored his subpoena to appear as his – Farrar’s – witness – I already told you, that’s exactly what he did – and to bring documents that presumably would tend to support his – Farrar’s – case, after ALJ Malahi denied Obama’s Motion to Quash (that subpoena)? Here goes.

Again, I want to clarify who are the parties in that Georgia ballot challenge case heard Thursday by Administrative Law Judge Malihi. Complainant Farrar, Respondent Obama, and the GA Office of Secretary are all parties.  Here’s a picture of the docket (calendar) for Thursday’s OSAH hearing. Notice, it lists the Case Name as David Farrar, and not Farrar v. Obama. It provides a box for the name of the Non-Agency Attorney, that is, Farrar’s attorney. That space is empty. It also has a box for the Case Official.  Know who that is? The person from the agency who is responsible for representing the (position of the) agency at the hearing. That box is also empty. (Note: I checked the docket for other hearings; the caption for Case Name was always the person seeking redress; and, usually, both the names of non-agency attorneys and case officials were filled in.)

Here is the downloadable subpoena from the GA OSAH web site. Notice in the case caption, that is, the section in the beginning listing the forum – OSAH – and the attached administrative agency – Secretary of State – the words “Petitioner” and “Respondent” appear in lieu of “Plaintiff” and “Defendant.”

http://www.osah.ga.gov/#

Notice that the heading lists the parties as Petitioner and Respondent. Further down, in the section beginning with “YOU ARE HEREBY COMMANDED, to appear in court on behalf of” notice that the party issuing the subpoena, Petitioner or Respondent, identifies itself to the recipient by checking the appropriate box. Also notice, ALJ Malihi’s signature and the OSAH seal are pre-stamped on the downloadable document. (Finally, notice the word “court” as used here refers to this administrative hearing of the Executive branch and not to a Judicial proceeding.)

Notice in particular that the party issuing the subpoena selects whether s/he commands the recipient either to appear and testify as a witness; or to produce a document; or both. (The word “document” here is singular.) Thus, the subpoena allows the party to compel this witness, presumably possessing knowledge as to a specific matter which will help to support his case, to provide such aid, either in the form of sworn testimony, or a document, or both.)

Now, here is the subpoena as filled in by Petitioner Farrar directed to Respondent Obama.

View this document on Scribd

Notice here, Petitioner has checked off, he is both Petitioner and Respondent. And, he is commanding Mr. Obama, who actually is the Respondent; to both be sworn in as a Witness on his – Petitioner’s behalf – but also to produce the several (categories of) documents he lists to support his case.

(On the other hand, when Complainant Swensson wanted documents, he produced a Notice to Produce, as provided for by OSHA Rules of Procedure, cited in his notice.) (Notice that like his fellow Petitioners, he asks for numerous documents, too. Also, see that in the caption he refers to the parties as Plaintiff and Defendant. But, he correctly lists the SoS office as the applicable agency attached to this OSHA hearing.)

View this document on Scribd

Here is Respondent’s Motion to Quash (Petitioner Farrar’s subpoena). (Notice in the caption that, he, too refers to the parties as Plaintiff and Defendant. But, he also correctly lists the SoS office as the applicable agency attached to this OSHA hearing.) Also notice that while the heading is Motion to Quash Subpoenas, plural; Respondent only addresses one Petitioner, Farrar; and mentions the only subpoena issued in this case, by Petitioner Farrar.

View this document on Scribd

And here is ALJ Malahi’s denial of that Motion. Notice he raises only 2 narrow grounds: failure to cite support to claim of hardship to attend; and 2) failure to establish grounds to find improper service. Interestingly, he calls the Petitioners “Plaintiffs,” and Respondent, “Defendant.” But he gets the SoS office right. Notice that he copies the plural Subpoenas in his heading. But, for some reason, he lists all Petitioners in the caption, whereas by this time, the cases had been severed.

View this document on Scribd

(I will not comment in depth as to whether ALJ Malahi should have granted the Motion to Quash except to say, given the limited purpose for which the OSHA subpoena form was obviously intended, that is, to compel a witness to testify as to a specific fact or circumstance supported perhaps by a corresponding document under his or her control; and given Petitioner’s obvious attempt to expand that scope; I think ALJ Malihi had ample grounds to support a decision to quash based on Obama’s objections, Petitioner was impermissably trying to bolster its case by subverting the narrow aim of the subpoena in order to circumvent rules prohibiting Discovery.)

616-1-2-.38 Discovery. Amended.
Discovery shall not be available in any proceeding before an Administrative Law Judge except to
the extent specifically authorized by law. Nothing in this Rule is intended to limit the provisions
of Article 4 of Chapter 18 of Title 50 or Rule 37.

So, when Respondent/Witness (Obama), ignoring a subpoena still in force; absented himself from these proceedings; in what way did this failure to appear impact Petitioner’s case? In other words, just because he didn’t show up; did Farrar win?

Well, that depends on a lot of things, including who bears the burden of proof. That is, in a proceeding the purpose of which is to obtain a (non-binding) recommendation from the ALJ to the SoS to take Obama’s name off the ballot; did Farrar need to prove, he is not a NBC? Or did Obama need to prove he is a NBC?  Or, did the SoS need to prove it had acted in accordance with existing rules and regulations with respect to preparing the ballot?

(Note: For the sake of argument, I assumed that ALJ Malihi was so upset with being ‘dissed’ by counsel for Respondent, he would exercise whatever authority available to lock him out of these proceedings.)

Let’s look at the Administrative Rules.

616-1-2-.07 Burden of Proof. Amended.
(1) The agency shall bear the burden of proof in all matters except that:
(a) in any case involving the imposition of civil penalties, an administrative enforcement order,
or the revocation, suspension, amendment, or non-renewal of a license, the holder of the license
and the person from whom civil penalties are sought or against whom an order is issued shall
bear the burden as to any affirmative defenses raised;
(b) a party challenging the issuance, revocation, suspension, amendment, or non-renewal of a
license who is not the licensee shall bear the burden;
(c) an applicant for a license that has been denied shall bear the burden;
(d) any licensee that appeals the conditions, requirements, or restrictions placed on a license
shall bear the burden; and
(e) an applicant or recipient of a public assistance benefit shall bear the burden unless the case
involves an agency action reducing, suspending, or terminating a benefit.
(2) Prior to the commencement of the hearing, the Administrative Law Judge may determine
that law or justice requires a different placement of the burden of proof.

http://www.osah.ga.gov/documents/procedures/administrative-rules-osah.pdf

Petitioners’ original complaint is that SoS Kemp should not have allowed the name of Barack Obama on the GA D Presidential preference primary ballot because under GA law, only the names of candidates who are qualified for office may be printed on the ballot; AND President Obama is Constitutionally unqualified for the job. Well, (1) says, the agency bears the burden of proof (as to why it acted as it did, in this case, determining to keep Obama’s name on the ballot). Only, the SoS, while a party; was not the named Respondent. And no one from the office of SoS was listed as participating in the hearing. But (2) says, the ALJ can shift that burden before the hearing begins. By naming Obama the Respondent/Defendant, is this what ALJ Malahi did? In other words, did he make Petitioner bear the burden of proof that Obama is not a NBC? If so, Petitioners alone failed to meet that burden.

But what if the office of the SoS had been named the Respondent and, therefore, bore the burden of proof in the case? Watch this.

Look at this rule on Nature of Proceedings.

616-1-2-.21 Nature of Proceedings. Amended.

(1) In a hearing conducted under this Chapter, the Administrative Law Judge shall make an
independent determination on the basis of the competent evidence presented at the hearing.
Except as provided in Rule 29, the Administrative Law Judge may make any disposition of the
matter available to the Referring Agency.
(2) If a party includes in its pleadings a challenge to the regularity of the process by which the
Referring Agency reached a decision, the Administrative Law Judge shall take evidence and
reach a determination on such a challenge at the outset of the hearing. The party making such a
challenge shall have the burden of proof. If the Administrative Law Judge finds the challenge
meritorious, the Administrative Law Judge may remand the matter to the Referring Agency.
(3) The hearing shall be de novo in nature, and the evidence on the issues in a hearing shall not
be limited to the evidence presented to or considered by the Referring Agency prior to its
decision.
(4) Unless otherwise provided by law, the standard of proof on all issues in a hearing shall be a
preponderance of the evidence.

Recall the definition of “rules,” above: “Rule” means each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of any agency.”

Petitioners’ original complaint, supported by all of the materials they produced to make their case, is that SoS Kemp should not have allowed the name of Barack Obama on the GA D Presidential preference primary ballot because under GA law, only the names of candidates who are qualified for office may be printed on the ballot; AND President Obama is Constitutionally unqualified for the job. That was a fatal mistake. Instead – and I am borrowing this from my work on those citizen complaints of election fraud to state A’sG, in the sidebar – they should have argued this.

The SoS allowed the name of Barack Obama on the ballot using bad rules. That is, he carried out his ministerial duty to oversee elections by using rules that allowed onto the ballot the name of a candidate for whom even the D’s refuse to provide documentary evidence available in the public record; is Constitutionally qualified for the job. Under the Nature of Proceedings, above, this would place the burden of proof back on Petitioner; the standard, a preponderance of the evidence (>50%). And that’s a good thing. If the burden remained on the SoS, he would argue, the rules are fine, and no one could demonstrate they haven’t worked to keep an unqualified candidate off the ballot. (Remember, nothing Petitioners argued could ever establish Obama is not a NBC.)

But with the burden of proof shifted to them, Petitioners could have made their case merely by issuing subpoenas for all of those officials involved in signing the 2008 Certification of Nomination from the DNC Services Corporation swearing the then nominee Obama was “duly nominated,” that is, vetted for Constitutional eligibility under the DNC Charter; and submitting this to the GA SoS in 2008 to get his name printed on the ballot. Again, the blueprint for this argument and the evidence which Petitioners could have submitted into the record to support this argument; is laid out in those citizen complaints.

Do you suppose any of the D witnesses would have shown up?  Again, under the Administrative Procedure rule regarding default (above), if a default issued, this means, the ALJ has the authority to ignore any input from these witnesses. But this absence would actually speak volumes. It would demonstrate for everyone to see what we – I -have been saying all along: everyone else is willing to explain why Barack Obama is a NBC but the official members of the D party. Not when it comes to answering the question for voters and constituents – see the evidence compiled in the citizen complaints to state A’sG – and not  when it comes to explaining his eligibility to an official judicial or administrative body.  No reasonable person could be expected to trust the word of people who refuse to back up their word with their presence at this proceeding.

The Case Official representing the Respondent SoS could only argue back, ‘We did what we always do; accept the representation of the candidate’s (presumptive) qualification, from the Party.’

Finally, GA Petitioners could have asked that the SoS immediately promulgate appropriate rules so as to ensure that from now on, only the names of qualified candidates will appear on the state ballot.

GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 50.  STATE GOVERNMENT
CHAPTER 13.  ADMINISTRATIVE PROCEDURE
ARTICLE 1.  GENERAL PROVISIONS
O.C.G.A. § 50-13-9  (2011)

§ 50-13-9.  Petition for promulgation, amendment, or repeal of rule; agency response

An interested person may petition an agency requesting the promulgation, amendment, or repeal of a rule. Each agency shall prescribe by rule the form for petitions and the procedure for their submission, consideration, and disposition. Within 30 days after submission of a petition, the agency either shall deny the petition in writing, stating its reasons for the denial, or shall initiate rule-making proceedings in accordance with Code Section 50-13-4.

And, under the timetable provided for, by law, these rules could be in place in time for the 2012 general election ballot.

That’s my analysis, for what it’s worth.

…………………………………………………………………………………………………………………………………………………………….

Freedom costs.


THERE COULD BE a LOGICAL EXPLANATION

June 29, 2011

© 2011 jbjd

Not every procedural inconsistency that occurred between the 2008 election cycle and previous elections, is definitive evidence of fraud, let alone proof that such fraud occurred.

I received this comment today from HawaiiSurfer, bemoaning the fact that HI Lt. Gov. Brian Schatz (D), formerly Chair of the HI Democratic Party in 2008; has gotten away with election fraud in relation to the wording of the 2008 D Certification of Obama’s Nomination.  But, HawaiiSurfer got it wrong; and those of you who regularly read my blog know s/he got it wrong.  Here’s that comment, in its entirety.

Brian Schatz should not be allowed to waltz scot-free on his signature and wording on the 27 August 2008 memo in question.  Our country has gone down a road where our children look up and wonder if anyone in leadership has integrity.  Few leaders have touched an honest approach to the shadowy skullduggery surrounding the 2008 election…And the world is just suppose to be okay with it.  Someone needs to call Brian out publicly for signing this form and the wording he knew was in it.  As now our Lt Governor in Hawaii, Brian needs to come clean on why he approved and authorized this release.  Where has the ethical conscience and compass of our government gone?  Forget what the media calls the birth issue, this has to do with why Brian validated for our state the national democratic presidential candidate while “clearly omitting” the authentication that the candidate was Constitutionally qualified.  In stark contrast, two predecessors from Brian’s party, Brikwood Galuteria and Alfred Lardizabul, did the right thing by clearly certifying John Kerry in 2004 and Al Gore in 2000 as Constitutionally qualified candidates.  If we went back further in time, we’d probably find Brian’s actions as Democratic Party Chair here are in clear contrast to far more than just documentation of the last few presidential elections.  Brian most likely is not to fault in everything related to this.  Many hands across our nation appear to have been deep in the cookie jar.  The democratic party was fed a bad deal with what is most likely one of the biggest frauds in American history.  Good people should have stopped it.  Brian Schatz seems like a wonderful person.  I’m sure Brian has done many great things for our communities and state, but that does not excuse any elected or appointed leader from actions of this weight and consequence.

Brian Schatz signs official campaign document showing missing statement that presidential candidate was Constitutionally qualified.
(link omitted by jbjd)

Our children and neighbors deserve much better.  Our country dies when we let go of our conscience.  Unfortunately, Brian may end up like Blago.  Behind bars.

I began responding to this comment when I realized, I had written all of this before. After a brief search I found BACK UP, BIRTHERS! which contained a well-developed explanation of the inconsistencies related to the 2008 HI Certification, none of which lends itself to a presumption of fraud, certainly not on a state level.

*******************************************************************************************************************************************************

(beginning of excerpt)

Not understanding my work or the context of these Certifications, she, too, invented a cottage conspiracy industry related to the mistaken uniqueness of the HI Certification of Nomination, with a twist.  See, she uses the fact the DNC Certification of Nomination contains the line that Obama is Constitutionally eligible for the job; to support her argument, the HI D Party refused to put that line in their state Certification because they knew Obama is not a NBC.  How does she know this?  Well, she retrieved both the DNC and the HI D Party Certifications for 2000, 2004, and 2008.  In 2000, the DNC document began without the eligibility line, which was obviously typed in after the original document was completed.  The HDP document in 2000 contained the same eligibility line.  In 2004, the DNC document did not contain the eligibility line; the HDP document did.  In 2008, the DNC document did; the HDP document did not.

butterdezillion points out all of the variables were the same – the election law was the same, Brian Schatz was the HI D Party Chair; and Joseph Sandler was the General Counsel to the DNC – and argues, on this basis, one would expect that the Certifications would have been processed in the same manner.  Since they were not, she concludes, Mr. Schatz “refused” to swear to Obama’s Constitutional eligibility for President because he knew the man was not a NBC.

Only, she is wrong.  For one thing, all of the material variables were not the same.  But that fact has not stopped the ‘usual suspects’ from piggy-backing on her mistakes.  Even worse, her work now specifically contains a reference to research done by “jbjd,” thus arguably giving the false impression, again, my work is the basis for her soon-to-be-exposed-as-discredited findings.

Basically, here is her argument.  Looking at the dates of these Certifications, she found, in 2000, the DNC Certification was dated 08.17.00; HDP 09.08.00.  In 2004, DNC 07.29.04; HDP 08.31.2004.  In 2008, DNC 08.28.08; HDP 08.27.08.  Following is her invented rationale as to what happened in 2008:

So instead of acting independently a month after the National Convention and confirming Constitutional eligibility as in the past, the HDP acted before the Convention to take out the eligibility language from their standard certificate, signed it, and gave it to Joe Sandler before Pelosi had signed anything – signaling to the DNC that they were not going to certify eligibility. They coordinated their efforts with Joe Sandler, who sent both documents together to the HI Elections Office. Apparently Sandler, Pelosi, and Germond all knew that Hawaii’s special certification was necessary because the HDP refused to certify Obama’s eligibility.

Let me just point out one of butterdezillion’s most glaring mistaken presumptions.  Joseph Sandler did not submit both the DNC and the HDP documents “together” to the HI Elections Office.   (This probably explains why his cover letter only references the DNC Certification and not the HDP Certification, and why he uses the word “Certification,” in the singular.)  And how do I know this?  Because way back in January 2009, I asked the HI Election Office.  That is, I asked Justin Riggs to ask them.

See, in December 2008 I learned that Justin Riggs had been corresponding with elections officials in various states asking them to provide the paperwork submitted by the D and R parties to get their respective Presidential nominees on the general election ballot.  Justin posted his paperwork.  I looked at the HI documents – these are now posted on my web site, along with Justin’s correspondence – and had questions.  So, I asked Justin to ask HI election officials, since he had already established a rapport. Especially I was interested in learning when they had received these Certification documents.  Because among those documents I got from him were just the DNC Certification; the HDP Certification; and the HDP cover letter.  Joseph Sandler’s cover letter was missing.  And as you can see from the documents posted on butterdezillion, his cover letter is the only one with a ‘date received’ stamp.

(Actually, the 2008 documents butterdezillion posted on her blog in September 2010 are linked to this blog, http://moniquemonicat.files.wordpress.com/2008/12/hawaii-response.pdf, where they were first posted almost 2 (two) years ago.  The date, January 06, 2009 01:17p in the upper left corner, designates a FAX transmission.)

Mr. Sandler’s cover letter, dated August 28, was stamped received by the HI Elections Office on September 03.  And that cover letter was the only one of those DNC/HDP Certification documents received by the HI Election Commission for Obama that received a Date Stamp.  Consequently, as the documents I received from Justin did not contain Mr. Sandler’s cover letter, none of his documents had a stamp evidencing it had even been received by the HI Elections Office!  But obviously, the documents were received, as election officials did print Obama’s name on HI’s general election ballot.  (The date these documents were received didn’t matter, for the same reason, that is, I knew they had been received in time.)  Just to satisfy my curiosity, I asked Justin to ask officials how they received these DNC and HDP documents.  Here is his reply to me.

jbjd,
Here you go… it looks like the HI Democratic party forwarded both documents to the Elections Office.
Hope that helps. Keep me posted on your progress.
Justin—
From: Carolyn.L.Roldan@hawaii.gov <Carolyn.L.Roldan@hawaii.gov>
Subject: Re: Response to December 12, 2008 Request
To: “Justin Riggs” <juriggs@.xxxxx.com>
Date: Friday, March 6, 2009, 1:44 PM
Dear Mr. Riggs,
Both documents were forwarded by the Democratic Party of Hawaii.

Sincerely,

Kevin B. Cronin

Now that I see Mr. Sandler’s cover letter, Mr. Cronin’s answer makes even more sense.  That is, between his use of the singular “Certification”; and the delay between the date his letter was written and the date this was received by the HI Election Office’ it would make sense that the DNC gave the documents to the HDP who then forwarded these to the HI Elections Office.

When butterdezillion wrote her ‘seminal’ Certification article on September 10, 2010, she knew none of this.  Thus, based on her faulty assumptions about how the DNC and HDP letters of Certification reached the HI Election Office, she asks, “The question that begs an answer is: Why did the Hawaii Democratic Party refuse to certify Obama’s eligibility as they had always done to successfully place presidential candidates on the ballots before?”  And answered it with that contrived story.

A more plausible answer as to why the HDP did not add the line about Constitutional eligibility in 2008 like they had in 2004 and 2000 likely could come from anyone reading the work produced on my blog.  Here’s a hint:  what information highlighted in COUP (2 of 3) and (3 of 3) led to my conclusion, Obama and the DNC had identified which Clinton pledged delegates were from vote binding states?  Yep; it’s those state Delegate Selection Plans.  As I told you, provisions in the DNC Model Delegate Selection Plan for 2006 required, in order to obtain final approval from the RBC for state delegate selection plans for use in the 2008 election cycle, state parties were required to submit those plans to the RBC accompanied by all state statutes reasonably related to the delegate selection process. (Emphasis added by jbjd.) http://s3.amazonaws.com/apache.3cdn.net/e824f455b24c7782dc_jjm6ib44l.pdf In this way, the DNC could monitor any idiosyncratic requirements in individual states so as to ensure Obama’s name would qualify to get onto every general election ballot.

I assumed this provision was not included in the 2002 DNC model delegate selection rules to be used in the 2004 election, and that’s why the HI state party (and, presumably, state parties in other states) handled their special Certifications on their own.  Finally, I had time to check my hypothesis; and I was right.

View this document on Scribd

In other words, where changes would be required in the language of the Certification of Nomination to satisfy the law of individual states, in 2006, the DNC began assuming responsibility for all such changes.

And that would explain why in 2008 the HDP did not certify Obama’s Constitutional eligibility for office but the DNC did.

(end of excerpt)

*****************************************************************************************************************************************************

If your bona fide concern is shoring up the electoral process then, please, stop wasting time on ferreting out fraud and conspiracy where 1) none exists; and 2) this won’t make a difference to ensuring the next President is a NBC, anyway. And, do all of us a favor.  Stop buying into anything coming out of the hyperbolic factually vacuous blogs the links to which I continue to edit out on my blog!  Especially steer clear of any of those blogs which feature the people who have stolen and then, misrepresented the point of my work.  I wonder whether after yet another episode of emotional investment in a gambit which not only has no basis in fact but also was dispelled long ago on this blog; people will have become sufficiently angry to stop crediting another word from their ‘poison pens,’ anyway.


ALOHA OBAMA and SHALOM

January 29, 2011

©2011 jbjd

“An ounce of prevention is worth a pound of cure.”

Benjamin Franklin

“A citizenry that cannot compel its current elected officials to carry out those laws already in effect, cannot change this outcome by electing new officials or enacting new laws.”

jbjd

 

If Barack Obama is not Constitutionally eligible to hold the office of President then, those members of the D party broke the law in 2008 who swore to state election officials he was, to get them to print his name on the ballot in those states that only print the names of candidates qualified for the job.  Many people who believe he is ineligible advocate we should shore up state election laws to forestall another round of fraud in 2012.  Meanwhile, others urge we should not let off the hook those members of the D party who fraudulently pulled off his election in 2008.

The problem of establishing candidate eligibility for office can be rectified on two fronts.

Those of you in states without existing ballot eligibility laws can focus on drafting smart candidate ballot eligibility laws for 2012.  The rest of you can work to persuade your A’sG to enforce existing laws.  In this way, that is, by concentrating on eliminating election fraud viz a viz the ballot using both prevention AND remediation, we can get at the problem of candidate eligibility coming AND going.

For residents of HI, here are updated citizen complaints of election fraud for the State of Hawaii.  Please, whether you have already filed a complaint, file this current updated one now. Note that Brian Schatz, formerly Chair of the Democratic Party of HI, is now the Lt. Gov.  And the new AG, David Louie, only assumed office a couple of weeks ago.  (Mr. Louie graduated from Occidental College, said to be one of Mr. Obama’s alma maters.)

All filers, old and new, make sure to read and understand the complaint before signing with real names and addresses, and sending.

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