S o S

I have been asked to comment on efforts that are under way in several states to draft and enact into law new election statutes that would require candidates for President whose names appear on the ballot to undergo eligibility screening intended to establish whether these candidates satisfy the Constitutional eligibility for the job.  Here’s what I have to say about this.

Why bother?

The Secretary of State, who in most states is given the statutory job of overseeing elections; also has statutory authority to promulgate the rules and regulations required to carry out the job.  So, in those states that require the candidate whose name appears on the ballot, to be eligible for the job – AL,* GA, HI, MD, SC, TX, and VA have been identified so far – the SoS just needs to exercise the rule-making authority of that office to write new eligibility rules.  And these rules can be amended as time and technology require.  (I would imagine, it would be much easier to persuade a SoS to tighten up procedural requirements to get a name on the ballot than to lobby the legislature (and governor) to pass a brand new law.)

In states without such ballot eligibility laws, these laws need to be enacted.  (In some states, this also requires either amending existing laws that currently entitle the nominee for President from the major political parties to appear on the ballot; or drafting the new law to incorporate such existing entitlements.  Still, I would imagine it would be much easier to pass legislation requiring simply that, only the names of eligible candidates may be printed on the state election ballot AND to amend existing laws that apply to major political parties; than to labor on persuading legislators to adopt both the principle of candidate eligibility to appear on the ballot AND the detailed methodology drafters are attempting to construct so as to ensure such eligibility.)

* AL has been identified as an applicable state for citizen complaints of election fraud but, no Alabamans have volunteered to help me obtain the final piece of information required to draft a complaint.  (I only read the AL law when a non-Alabaman happened to look up the law in that state, for a ‘friend,’ and forwarded this to me for review.)

P.S. For those of you who are going about this the hard way; please keep in mind that targeting BO for coverage under any new regime can trigger challenges on the grounds, the new law constitutes a Constitutionally prohibited bill of attainder.  (This is the principle that sunk Congress’ attempt to de-fund ACORN, cited by the federal court in granting ACORN’s motion for a preliminary injunction.)  See this comment posted here back in January, and my response.

This should be some good news. A story from Arizona says a legislator wants to require proof of citizenship to put Obama’s name on the ballot in 2012.

“If President Obama wants to run for re-election he would need to produce proof of both his U.S. birth and citizenship to get on the ballot in Arizona, if one state lawmaker gets her way.

Rep. Judy Burges, R-Skull Valley, is preparing a law to require anyone running for president or vice president to provide proof to the Arizona Secretary of State’s Office that they are legally eligible to seek the office. The U.S. Constitution requires the president — and, by extension, the vice president — to be “a natural born citizen.”

Burges would require the secretary of state to verify that status independently.

“If it’s not certifiable, then that person’s name would not go on the ballot,” she said.


ksdb: Not so fast. I read the article you linked. Of course, I agree in principle with amending the requirements the candidates must meet before states agree to print their names on state ballots. This is what I have advocated all along. However, for several reasons, this proposed legislation is not what I had in mind.

For starters, notwithstanding her protestations to the contrary, Representative Burges sounds like she is proposing this legislation specifically to ‘get’ BO. That will kill the bill on challenge, for sure. http://www.nola.com/politics/index.ssf/2009/12/acorn_funding_cut-off_was_unco.html ADMINISTRATOR

9 Responses to S o S

  1. Pete says:


    SoS forced to review Obama’s credentials is credible. SoS that ignored it in the past, failed. I am at a loss to understand your concept that demanding proof of Constitutional eligibility is un-Constitutional!! Nay, I would say that the SCOTUS would have to rule that such state laws were un-Constitutional, and they would never do so.

    The most likely future is that Obama will NOT run for re-election, and be the next Democratic one term president, much like Jimmy Carter. Further, I have predicted this very scenerio since prior to the Nov 2008 elections.

    Obama will do as much damage possible to the Country and Constitution, and ultimately the Democratic party, as possible in one term. History will not look at him kindly.

    Pete: I am not sure I understand your comments. Unless the law requires the candidate whose name appears on the ballot to be eligible for the job, no state actor must check the candidate’s eligibility. And, based on our failed attempts to ascertain from members of the D Corporation, the documentary basis on which they swore BO was Constitutionally qualified for POTUS in order to get his name printed on the ballot; I would argue, the failure of the S’soS to promulgate such rules and regulations that would establish eligibility have thwarted the clear intent of the statute.

    As for the SCOTUS striking down any laws as unConstitutional; technically, states are not establishing eligibility for POTUS but only to get one’s name printed on the state ballot. Besides, Presidents are not elected based on votes cast for Electors in the general election but only on votes cast by these Electors, in December. And they can vote for anyone they want.

    The D Corporation cannot make Barack Obama their candidate for POTUS in 2012 because his name will not be printed on each state’s general election ballot – have you read the citizen complaints of election fraud to state A’sG? – and, even though the Electors can vote for anyone they want, the D Corporation would not dare to steal the election at the level of the Elector vote. See NEVER LESS THAN a TREASON (2 of 2). ADMINISTRATOR

    P.S. There are other reasons BO’s name cannot be placed on the ballots in some states; I will go into this shortly.

    P.P.S. I think I just realized your confusion. I said targeting BO with any law, for example, specifically mentioning his name in the same sentence as why you need this law to establish whether a candidate for POTUS is really a NBC; as opposed to, say, creating a law that is intended to deal with the general issue of establishing eligibility to get on the ballot; is unConstitutional, as being what is called a bill of attainder.

  2. azgo says:

    Are you familiar with this U.S. Court of Appeals case and opinion? I read this a few weeks ago and again tonight and it is an interesting case with an interesting twist about a candidate’s eligibility, then ineligibility, then eligibility.

    “Texas Democratic Party; Boyd L. Richie, in His Capacity As Chairman of the Texas Democratic Party, Plaintiffs-appellees, v. Tina J. Benkiser, in Her Capacity As Chairwoman of the Republican Party of Texas, Defendant-appellant”

    Could this case provide some or any direction/guidance for state officials and for us interested citizens regarding how a SoS can create and/or strengthen eligibility rules?

    Me thinks so.

    … “while states enjoy a wide latitude in regulating elections and in controlling ballot content and ballot access, they must exercise this power in a reasonable, nondiscriminatory, politically neutral fashion.” Miller v. Moore, 169 F.3d 1119, 1125 (8th Cir.1999).


    The pronounced “ineligible” candidate, due to circumstances, was eligible until election day.

    Do you think a SoS could go as far as to define the phrase “NBC” using pertinent historical references in a “reasonable, nondiscriminatory and politically neutral fashion” for their eligibility rules/laws?

    Great little article! …Thanks!

    azgo: No, thank you! OMG, I had no idea TX law authorized state party Chairs to contest candidate eligibility to appear on the ballot! Or, perhaps more importantly, that federal courts in this circuit had already established, state party Chairs have standing to sue in an associational capacity for such ballot issues; and that individuals running against candidates whose eligibility is in question maintain similar standing! (Why are so many people donating so much money to all of these lawyers to bring frivolous lawsuits ostensibly aimed at getting at the issue of BO’s Constitutional eligibility for POTUS when at least in this circuit the law as to challenging ballot eligibility appears to be well settled? Based on the roadmap provided in this case, why haven’t these lawyers fashioned a similar case that would not be thrown out?)

    As far as defining what is a NBC; I have been saying for months, the state can define this any way they want, FOR THE PURPOSE OF GETTING A NAME PRINTED ON THE BALLOT ONLY. Anyone wanting to contest such definition can take the state to court. (Perhaps then, we could end up with a legal definition of NBC.) ADMINISTRATOR

    P.S. Here is the link to that previous comment about this case. https://jbjd.wordpress.com/2010/02/14/texas-two-step/#comment-1831

  3. jbjd says:


    I am so angry I could…

    Way back in February 2009, in their Opposition to Respondents’ Motion for Judgment on the Pleadings in Keyes v. Bowen, Attorneys Orly Taitz and Gary Kreep cited this case – TDP v. RPT, 459 F3d 582 (2006) – which azgo found and sent to me for review a full year later, in February 2010. (See comments, here.) (http://www.freerepublic.com/focus/news/2186569/posts)

    Understand what this means. These attorneys were bringing a case in state court in CA (Superior Court) and using a federal case as an authority, so as to bolster their case. This federal case – TDP v. RPT – stands for the proposition that while TX law grants standing to both political party Chairs (associational standing) AND candidates (individual standing) to challenge eligibility of candidates for federal offices to have their names printed on the ballot; this does not give them the right to alter the Qualifications Clause of the Constitution.

    I cannot imagine the emotional response of those of you who have contributed financially to the escapades of Attorneys Taitz and Kreep on learning these heavily subsidized lawyers have failed to take advantage of the legal holdings they cite in their patently infirm ‘eligibility’ state case, in CA; to bring an arguably sound ‘eligibility’ case, in the Fifth Circuit (federal court) in Texas. Please, let me know what they say, when you ask them.

    (Yet I cannot get people to click on my PayPal button!)

  4. Michelle says:

    jbjd-duh I think I just got this. Apples to apples, oranges to oranges. You can’t bring into state court CA- citing a Federal case (apple/orange). You would have to go state to state (apple/apple)-Fed case/Fed case (orange/orange)for citing cases only. The two can’t mix. Hope I got this correct?

    Michelle: My bad. I should have made this clearer. (I have been exchanging comments on another site, which have clarified the issue. I will port some of those remarks, here.) What I am saying is that, bringing the eligibility case in CA state court failed. So, why didn’t attorneys bring the case in TX when the record establishes, they knew about this TX case? See, in an attempt to support the state case, attorneys for Plaintiff cited to a federal case, which contained a holding they found favorable to their CA state case. However, this particular holding was based on TX state law; the federal court had only agreed to hear that case when Defendant RPT removed the case from state court to federal court; because one of the issues raised by Plaintiff TDP was, the Qualifications Clause in the U.S. Constitution. (“The TDP filed this suit in Texas state court on June 8, 2006, seeking declaratory and injunctive relief. The RPT removed the case to federal court, where on June 26, 2006, the court held a hearing on the merits.”) The federal court ruled on both the state (TX) and federal (Constitution) questions presented. (“We AFFIRM on the constitutional grounds enumerated by the district court and also AFFIRM on the alternative state law ground that the declaration violated the Texas Election Code.”)

    Again, the federal court in TDP v. RPT ruled on issues of both TX state law AND federal Constitutional law. Under the state law of TX, under the specific conditions mentioned, both the RPT AND candidates for POTUS from the RPT have standing to challenge a candidate who is ineligible to appear on the ballot. The federal court in this case merely ruled, the RPT had misapplied the state statute. (“For the reasons stated above, the district court did not err when it held that the Texas ineligibility statute was unconstitutional as applied. In addition, Benkiser failed to meet the standards of the statute because the public records did not conclusively establish DeLay’s ineligibility.”)

    azgo brought this case to my attention. Immediately, I thought, for those people who want to continue funding any lawyer promising to bring an eligibility case to court (and thereby avoid personal responsibility for learning how the law works in their state and ‘outing’ BO by themselves); now we know, there is a way, at least in TX, to fashion a viable court case. But it never occurred to me that, any of these lawyers already knew about this TX case. Because if they did, surely they would have filed an eligibility case in TX! So, when I stumbled onto the fact, they did know about this case, more than a year ago now – I did a search using the legal citation for the case – I was furious! ADMINISTRATOR

  5. S. Gompers says:

    Do not forget that the Senate made a unanimous vote for both Obama and McCain to run for POTUS…

    The Senate does not have the authority to do so, and both had issues that needed to be addressed.

    It has happened more than now, yet the issue still has not been resolved, does anyone see a problem with that?

    Chester Arthur, George W. Romney, Barry Goldwater, John McCain, and Obama all had potential legal eligibility issues that should have been clarified years ago, but have never been addressed satisfactorily in regard to the natural born citizen clause of the Constitution.

    S. Gompers: You wrote, “Do not forget that the Senate made a unanimous vote for both Obama and McCain to run for POTUS…” I am not certain to what vote you are referring. Perhaps you reference a non-binding resolution declaring citizenship. For example, the Senate issued S511, a non-binding resolution declaring JMc is a NBC. Know how much precedential weight that holds? None. Nada. Zilch. Here’s how the Washington Post describes the event. “The bad news is that the nonbinding Senate resolution passed Wednesday night is simply an opinion that has little bearing on an arcane constitutional debate that has preoccupied legal scholars for many weeks.” http://www.washingtonpost.com/wp-dyn/content/article/2008/05/01/AR2008050103224.html

    Here are a couple of other non-binding resolutions issued by the Senate.

    U.S. Senate Urges Preventing Yemen from Becoming a Failed State
    U.S. Senate Apologizes for Slavery

  6. S. Gompers says:

    That is what I was referring to. The legislative branch overstepping the bounds of the judicial branch, and the judicial branch curiously not clarifying the issue of natural born that goes back many years thru all names mentioned above.

    I wonder sometimes, what do we pay these learned men for?

    S. Gompers: Yes, but you see now from my previous response to your earlier comment, these non-binding Senate resolutions don’t mean a thing. Constituents just sometimes think they do. Also, please, use gender neutral language. Neither the SCOTUS nor Congress are comprised only of men. ADMINISTRATOR

  7. azgo says:

    This TDP v. RPT case is so interesting and exciting.

    The more I read and learn about the TDP v. RPT case, Texas law and other related sources, the more I believe you have ‘pinned the tail on the Texas democratic donkey’.

    One thing I didn’t realize and now for the readers who don’t know, is that the Qualifications Clause includes what some people are calling the ‘Natural Born Citizen Clause’.

    The Qualifications Clause
    Article 1, Section 2, Clause 2
    Article 1, Section 3, Clause 3
    Article 2, Section 1, Clause 5

    Given that in this case the RPT candidate, by court ruling, was eligible until the day of election, would this also apply to a presidential candidate whose NBC status is in question as to being conclusive, as no official public record was established?

    In other words, based on this case, would an ineligible presidential candidate be eligible until the day of election?

    I know a lot of money comes to the RPT through donations and is subsequently spent on activities and support of their federal, state and local candidates.

    If the RPT became a plaintiff against the TDP in regard to the declared ineligible candidate section, could the RPT claim any sort of economic loss as part of the standing issue requirement?

    By the way, you are welcome, but what remarkable work you have uncovered in this case!!!

    azgo: I need to dedicate a whole post to this case. But let me try to answer some of your questions here, briefly.

    Given that in this case the RPT candidate, by court ruling, was eligible until the day of election, would this also apply to a presidential candidate whose NBC status is in question as to being conclusive, as no official public record was established?

    No. The courts in TDP v. RPT essentially ruled, the RPT was wrong to determine in the spring Tom DeLay was ineligible for the fall ballot. They explained, the Constitution requires the candidate to live in the state on the day of the election. They suggested, the RPT could not say for certain Mr. DeLay would not be living in the state in the fall. However, a candidate for POTUS cannot be a non-NBC in the spring and yet a NBC in the fall. Nothing cures not being a NBC, a status conferred at birth.

    If the RPT became a plaintiff against the TDP in regard to the declared ineligible candidate section, could the RPT claim any sort of economic loss as part of the standing issue requirement?

    The economic argument contributed to the court’s finding the TDP had standing to bring the suit against the RPT. ADMINISTRATOR

  8. […] couple of weeks ago, I posted a heated comment on S o S.  I was completely responsible for the tirade; but it wasn’t all my fault.  I had just […]

  9. azgo says:

    Hello jbjd,

    – The U.S. Code recognizes that some states have presidential qualifying laws as this U.S. Code text reads, the candidate “takes the action necessary under the law of a State to qualify himself for nomination for election”.

    – If no ‘law of a State’ exists for presidential qualification to be placed on the state election ballot, then it is easy for an unqualified candidate to receive presidential campaign matching funds and presidential campaign election funds.

    – (Note, I’m using the terms under the word ‘qualify’ as to be constitutionally qualified for the job instead of the term eligible as these U.S. Codes use the term ‘eligible’ as to be eligible to receive campaign funding, etc.)

    § 9032. Definitions

    “(2) The term “candidate” means an individual who seeks nomination for election to be President of the United States. For purposes of this paragraph, an individual shall be considered to seek nomination for election if he

    (A) takes the action necessary under the law of a State to qualify himself for nomination for election,

    (B) receives contributions or incurs qualified campaign expenses, or

    (C) gives his consent for any other person to receive contributions or to incur qualified campaign expenses on his behalf. The term “candidate” shall not include any individual who is not actively conducting campaigns in more than one State in connection with seeking nomination for election to be President of the United States.”

    – The ‘Secretary’ is the Secretary of the Treasury.

    Ҥ 9006. Payments to eligible candidates

    (a) Establishment of campaign fund

    There is hereby established on the books of the Treasury of the United States a special fund to be known as the “Presidential Election Campaign Fund”. The Secretary of the Treasury shall, from time to time, transfer to the fund an amount not in excess of the sum of the amounts designated (subsequent to the previous Presidential election) to the fund by individuals under section 6096. There is appropriated to the fund for each fiscal year, out of amounts in the general fund of the Treasury not otherwise appropriated, an amount equal to the amounts so designated during each fiscal year, which shall remain available to the fund without fiscal year limitation.”

    – The Secretary distributes campaign fund payments.

    Ҥ 9037. Payments to eligible candidates

    (a) Establishment of account

    The Secretary shall maintain in the Presidential Election Campaign Fund established by section 9006 (a), in addition to any account which he maintains under such section, a separate account to be known as the Presidential Primary Matching Payment Account. The Secretary shall deposit into the matching payment account, for use by the candidate of any political party who is eligible to receive payments under section 9033, the amount available after the Secretary determines that amounts for payments under section 9006 (c) and for payments under section 9008 (b)(3) are available for such payments.

    (b) Payments from the matching payment account

    Upon receipt of a certification from the Commission under section 9036, but not before the beginning of the matching payment period, the Secretary shall promptly transfer the amount certified by the Commission from the matching payment account to the candidate. In making such transfers to candidates of the same political party, the Secretary shall seek to achieve an equitable distribution of funds available under subsection (a), and the Secretary shall take into account, in seeking to achieve an equitable distribution, the sequence in which such certifications are received.”

    – The moral of this story is that it would be in the best interest of state government officials to enact presidential qualifying laws for placement on the state election ballot so that federal campaign monies and private political contributions, for that matter, are not wasted on unqualified presidential candidates.

    Are these federal presidential campaign matching funds and presidential campaign election funds, taxpayer money?

    – I hope I have gotten this right as these U.S. Codes can be very confusing flipping back and forth, up and down and all around.

    azgo: You write, “Note, I’m using the terms under the word ‘qualify’ as to be constitutionally qualified for the job instead of the term eligible as these U.S. Codes use the term ‘eligible’ as to be eligible to receive campaign funding, etc.” But therein lies the rub. As we have seen from so many of these baseless ‘eligibility’ lawsuits, being “qualified” to get onto the ballot has consistently been interpreted to mean, satisfying the steps spelled out in law to get onto the ballot, including but not limited to gathering requisite signatures, paying entrance fees, and declaring one’s candidacy. Recall, no law required any candidate to prove Constitutional eligibility.

    Federal matching funds are our money. BO, breaking yet another campaign promise, funded his run for office without public money, anyway. As for creating a justification for requiring eligibility screening so as to ensure public money does not go to candidates ineligible for office, well, this rationale is not the strongest nexus for enacting such laws. Because electing the President is not the job of the voters, anyway, but of the
    Electors. Rather, the strongest rationale for limiting access to state ballots is that the state cannot afford to print the name of EVERYONE onto state ballots and so, some weeding out process has to be devised. Surely a process that would survive a rational basis challenge in the courts, is to limit ballot access to only those candidates qualified for the job sought is a good beginning. And, as we have seen played out in the 2008 election, such a law cannot fulfill its intent with no means of eligibility verification. ADMINISTRATOR

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