JUDGE ABBOTT WOULD ORDER TDP CHAIR BOYD RICHIE TO DECLARE PRESIDENTIAL CANDIDATE BARACK OBAMA IS INELIGIBLE FOR THE JOB

April 7, 2010

UPDATE 06.21.12: Okay, this is getting complicated. As it turns out, SoS Andrade has determined, the legal standard of entitlement for Presidential candidates to appear on the ballot is this: they must be federally qualified for the job. When it comes to Independent and Write-In candidates; the SoS determines they are federally qualified through the ballot application she devised, self-affirming Constitutional eligibility. She only assumes the RPT and TDP have confirmed the federal qualifications of candidates whose names they electronically transfer to her office, to appear on the ballot. The RPT verifies, using the same type of self-affirming ballot applications used  by the Secretary. On the other hand; the TDP says nothing on its application about being federally qualified for the job. WILL TX AG ABBOTT PROSECUTE the TDP for VIOLATING the TX PUBLIC INFORMATION ACT?

UPDATE 05.04.12: Events in 2012 have mooted out much of this piece. Specifically, Boyd Richie has now produced the 2012 candidate application submitted by Barack Obama, which contained neither evidence of Constitutional eligibility nor a self-affirmation from the candidate. But as it turns out; SoS Andrade wasn’t putting either the D or the R Presidential nominees on the ballot because, having established federal eligibility, they were entitled, under the law. Indeed, TX law does not require Presidential eligibility to appear on the ballot. Rather, having determined on her own that federal eligibility was a prerequisite for both Independent and Write-in Presidential candidates getting on the ballot; she was either exercising her discretion to assume federal eligibility of party candidates; or, merely applying a different eligibility standard for these affiliated candidates. TEXAS, WE HAVE A PROBLEM.

UPDATE 04.08.10: I have revised the Texas citizen complaints of election fraud against Boyd Richie to AG Abbott and request for investigation; to reflect the information contained in this article.  These complaints can be downloaded from the sidebar but, please, before filling in your (real) name  and (Texas) address and forwarding a complaint to Mr. Abbott, make sure you have read it completely and understand thoroughly what you are signing.  As always, if you have any questions, come back here.  (And, by all means, feel free to contribute to the work that goes on here by clicking on a PayPal button and donating accordingly.)

View this document on Scribd

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Freedom costs.


CLOWNS to the LEFT of ME; JOKERS to the RIGHT (2 of 2)

March 31, 2010

 

In Clowns to the Left of Me; Jokers to the Right (1 of 2), we examined TDP v. RPT, learning that under Texas law, if the ineligibility of a candidate for public office is “conclusively established” then, the state Chair of that party is authorized to declare the candidate is ineligible.  Further, if the candidate’s name was previously submitted to the SoS to be placed on the ballot, the state Chair can now compel the SoS to remove that ineligible name.  (And if the Chair of another state party has a problem with this, s/he can sue to enjoin both the opposing Chair and the SoS from effecting this ‘disqualification.’)

The section of the law referenced in TDP v. RPT – Texas Election Code §145.003(f) – allows a party chair to declare a candidate ineligible.  But it does something else.  Here is the text of that provision and provision (g):

(f)  A candidate may be declared ineligible only if:

(1)  the information on the candidate’s application for a place on the ballot indicates that the candidate is ineligible for the office;  or

(2)  facts indicating that the candidate is ineligible are conclusively established by another public record.

(g)  When presented with an application for a place on the ballot or another public record containing information pertinent to a candidate’s eligibility, the appropriate authority shall promptly review the record.  If the authority determines that the record establishes ineligibility as provided by Subsection (f), the authority shall declare the candidate ineligible. (Emphasis added.)

Did you catch that?  If the authority – that would be, the party Chair – determines the candidate’s ineligibility is conclusively established by another public record, s/he shall declare the candidate ineligible.  Not may declare; or has discretion to declare; but has no other choice but to declare, the candidate is ineligible for the job.

Presumably, Chairwoman Benkiser determined the public record conclusively established Mr. DeLay was ineligible, based on those documents he submitted to her evidencing his current legal residency in Virginia.  So, as required by this law, she declared him, ineligible.

Does this provision mean, if Chairman Richie never “determines that the record establishes ineligibility,” he will never be obliged to declare, Barack Obama is ineligible? Absolutely not.

Recall from the first installment of “Clowns…,” who was responsible for petitioning the court to order the RPT (and the Texas SoS) to leave the name of Tom DeLay on the 2006 Congressional (mid-term) ballot in the first place.  That’s right; Attorney Boyd Richie, Chair of the TDP.*  I have no idea what prompted his involvement in this fight.  Surely, Mr. Richie knew Mr. DeLay had won the R primary; he could assume the RPT had submitted Mr. DeLay’s name to the SoS for placement on the ballot.  Presumably, he had heard Mr. DeLay announce soon after winning the primary, he had decided not to run for re-election.  Mr. Richie could anticipate the RPT would try to remove his name from the ballot and replace it with a more suitable candidate.  But RPT Chair Benkiser did not declare Mr. DeLay ineligible and seek to have the SoS remove his name from the ballot until receiving his VA documents, in May.  And that’s when Mr. Richie made his move.  How do you suppose he knew what Ms. Benkiser was up to?  Did she notify the TDP of her intentions?  Did the SoS receive the RPT de-certification and contact the TDP?  (If you Texans are curious, you can use the open records law to ask the SoS to produce any and all correspondence in whatever form, to and from both the RPT and the TDP between March 1, 2006 and June 30, 2006 inclusive, related to the eligibility of Tom DeLay to appear on the ballot.  (For template, see the link to the records request previously submitted to Mr. Richie for any and all documents that were the basis of his Certification of Barack Obama’s eligibility. https://jbjd.wordpress.com/2010/02/25/roadmap-tx-election-fraud-2008/ , under 6.))

Regardless how the TDP found out the RPT wanted to change the ballot; the point is this.  The TDP anticipated or knew the RPT intended to find Mr. DeLay ‘prospectively ineligible,’ and affirmatively set out to prevent both the RPT and the state from taking his name off the ballot.  And why wouldn’t they?  Obviously, running an ineligible candidate for the R team, means an almost certain win for the D’s! Which leads to this question.

If someone wanted to prevent the TDP from putting the name Barack Obama on the ballot in the 2012 Texas primary or general election, why not take a lesson from them?  (Note, in Texas, the party is responsible for submitting the names of candidates qualified to enter the primary.  (http://www.sos.state.tx.us/elections/candidates/guide/demorrep.shtml))

I have spelled out in the citizen complaints of election fraud to AG Abbott the overwhelming circumstantial evidence that supports the charge, Boyd Richie swore to state election officials Presidential wannabe Barack Obama was eligible for the job without ascertaining beforehand he is a Natural Born Citizen.  Using much of that same evidence, I can argue persuasively to the court that official public documents conclusively establish Barack Obama is ineligible to hold the office of President.  (In a later post, I will present the formalized legal argument in support of the claim, under Texas law, the record conclusively establishes Mr. Obama’s ineligibility.)

Assuming the court can be persuaded the record conclusively establishes Mr. Obama’s ineligibility, Texas election law leaves Chairman Richie with no other choice but to declare him ineligible. But what if after all this, Mr. Richie still refuses to declare him ineligible?

Well, remember, there’s always §161.009, which subjects the party chair to the legal cause of action called mandamus.  http://law.onecle.com/texas/election/161.009.00.htmls (I mentioned this on drkate’s Revolution Radio, Part III.)  Mandamus allows the court – the judicial branch of government – to order members of the executive branch of government – and, in Texas, political party Chairs – to perform their ministerial functions, as spelled out in law – legislative  branch – which law, in this case, says Mr. Richie must declare Mr. Obama ineligible.

I cannot be the only person who has figured this out.

Indeed, given the facts that copies of the citizen complaints of election fraud to AG Abbott have been mailed to the RPT (and the RNC); that the laws in TX require a party Chair to declare a candidate ineligible when such ineligibility is conclusively established in the record, and subject party Chairs to Mandamus; and that the TDP has already successfully petitioned the court to keep the RPT and the SoS from taking the name of Congressional candidate Tom DeLay off the ballot; why hasn’t the RPT expended similar efforts to prevent the TDP and SoS from putting the name of Presidential candidate Barack Obama, on?

I don’t know; do you?

And, to use a colloquialism, why hasn’t the RNC or any aspiring R Presidential candidates put their dog in the hunt?  After all, if Barack Obama is ineligible to get his name printed on the ballot in one applicable state, then…

Perhaps because both the RPT and the RNC are embroiled in more pressing matters than fighting to preserve and protect the integrity of election ballots in Texas.

Ms. Benkiser stepped down as Chair of the RPT in September 2009 to work as a Senior Adviser on Governor Perry’s re-election campaign, and was replaced by Cathie Adams. http://www.dallasobserver.com/2009-10-29/news/texas-gop-shifts-even-further-right-with-new-chair-cathie-adams/ Before this, Ms. Adams successfully campaigned to become an RNC Committeewoman.  She was endorsed by conservative stalwart, Phyllis Schlafly, Eagle Forum National President.  “Cathie Adams is a leader in the battle for God, Family and Country. She is extremely capable and I am confident that she would excel as Republican National Committeewoman.” http://www.cathieadams4rnc.com/

One of Ms. Adams’ first priorities was to spearhead a campaign on behalf of conservative members of the party, to get the RNC to pass a resolution renaming the DNC, the Democratic Socialist Party.  In the spring of 2009, nearly 3 (three) years since TDP v. RPT was decided; several months after President Obama took the oath of office; Ms. Adams and RNC Chairman Michael Steele were interviewed by Neil Cavuto from FOX.  Obviously straining to keep a straight face, Mr. Cavuto asked whether the Committeewoman’s crusade to rename the DNC detracted from real efforts at problem solving.

Ya think?

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* Here are the attorneys representing the parties, and the interested parties (other candidates, for example, not directly involved in the case but whose interests the court wanted to hear by granting their requests to introduce briefs in amici curiae, or friends of the court.) Chad Wilson Dunn (argued), Brazil & Dunn, Martin Jonathan Siegel (argued), Watts Law Firm, Houston, TX, Mikal C. Watts, Watts Law Firm, Corpus Christi, TX, Richard A. Grigg, Law Offices of Dicky Grigg, Cristen D. Feldman, Crews & Elliott, Austin, TX, for Plaintiffs-Appellees.  (That’s Boyd Richie as Chair of the TDP.)

James Bopp, Jr. (argued), Raeanna Sue Moore, Bopp, Coleson & Bostrom, Terre Haute, IN, for Benkiser.  (Defendants-Appellants.)

R. Ted Cruz, Office of Sol. Gen., TX, Austin, TX, Amici Curiae for Williams.

Andrius R. Kontrimas, Jenkins & Gilchrist, Houston, TX, Amicus Curiae for Wallace for Congress.

Susan L. Hays, Curran Tomko Tarski, Dallas, TX, Amicus Curiae for 68th Texas Legislature.

http://openjurist.org/459/f3d/582/texas-democratic-party-v-j-benkiser

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Freedom costs.


CLOWNS to the LEFT of ME; JOKERS to the RIGHT (1 of 2)

March 29, 2010

And I am still here, stuck in the middle with you.

A 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 learned that a 2006 legal case out of Texas set the precedent for a successful court challenge which could have  blocked that state from printing the name of Barack Obama on their 2008 primary or general election ballot.  And, adding insult to injury, I discovered that Attorneys Orly Taitz and Gary Kreep knew about this case at the time of Mr. Obama’s inauguration.

Still, re-visiting my convoluted explanation proved, I should not post when I am angry.

Today’s post  provides a calmer and more comprehensive lay explanation of the seminal role that case, Texas Democratic Party (“TDP”) v. Republican Party of Texas (“RPT”) 459 F.3d 582 (2006) could have played before now to correct some of the infirmities we have identified with the process that got the name Barack Obama printed next to the D on the ballot in the 2008 Presidential (Electors) election in Texas; and the role it can still play to forestall these same problems in 2012.  First, a brief history of the case.

TDP v. RPT

When Tom DeLay (R-TX) won the primary in March 2006 to get his name written next to the R on the Texas ballot, again, the chances that in the November election he would lose the seat he had held representing the 22nd District since 1984 seemed little to none.  “But that was before Tony C. Rudy, his former deputy chief of staff, pleaded guilty to conspiracy and corruption charges, telling federal prosecutors of a criminal enterprise being run out of DeLay’s leadership offices.”  In March 2006, Mr. DeLay announced, he would soon resign from Congress. DeLay to Resign from Congress Now, according to that Washington Post article, “under Texas law he must either die, be convicted of a felony, or move out of his district to be removed from the November ballot.”

Close, but no cigar.

In May, Mr. DeLay sent a letter to Ms. Tina J. Benkiser, Chair of the RPT, advising he had established legal residency in Virginia.  As proof, he provided copies of his VA driver’s license; VA voter registration; and employment withholding form reflecting VA as his residence.  Texas Election Code §145.003(f) allows a party Chair to declare a candidate ineligible.  So, based on Mr. DeLay’s public announcement he would not seek re-election; and the receipt of these VA documents, Ms. Bensiker declared candidate DeLay ineligible to run for Congress.  Under TX law, only the names of eligible candidates may be printed on the ballot. However, before the SoS could remove Mr. DeLay’s name from the TX ballot, Attorney Boyd Richie, elected one month earlier as Chair of the TDP filed suit in state court to halt such action, arguing the RPT had no authority under either Texas state election law or the Qualifications Clause of the U.S. Constitution to determine the winner of the R primary was now ineligible to participate in the November election.  Defendant RPT removed the case to federal district court in Texas, taking advantage of procedural rules that allow cases relying on both state and federal law, to be heard in federal court.

(When a federal court hears a case that is based on both a federal and a state cause of action, the court deliberates on the state issues according to the law in that state.  Thus, in effect, for the purpose of ruling on whether the RPT had violated the TX statute allowing political party Chairs to determine candidate eligibility, the court looked at both the state (TX) law and any state (TX) cases decided under that law, honoring the jurisprudential principle of stare decisis, that is, ruling on subsequent cases consistent with rulings in former cases.  This meant, the ruling issued by the federal district court in Texas based on state (TX) law, could only be used as precedent in subsequent cases heard in Texas, in either state or federal court, involving state (TX) law.  On the other hand, the ruling in federal district court on the issue of the federal Qualifications Clause; could be ported into both federal and state courts in other jurisdictions.)

The federal district court found that the RPT had violated both state (TX) and federal law; ruled it could not determine Mr. DeLay was ineligible; and permanently enjoined the SoS from removing Mr. DeLay’s name from the November ballot.  The RPT appealed; the federal appeals court upheld the lower court’s ruling.  Here is a summary of that decision.

Standing

First, the court found the TDP had standing to bring the case.  It reasoned, if the RPT was allowed to replace Mr. DeLay’s name with the name of another candidate on the ballot; then mounting a new campaign against this new opponent would impose an economic “injury in fact” on the TDP.  This injury was “redressible” and, indeed was redressed by the court through an injunction prohibiting the SoS from removing Mr. DeLay’s name from the ballot.  Also, if the RPT replaced Mr. DeLay with a stronger candidate against the D candidate, the D’s could suffer a real loss of power, another particularized factor in standing.  Plus, the court found the TDP had “associational” standing, meaning, pursuing the case did not require the participation of affected individuals, that is, a specific D candidate disadvantaged by the RPT’s conduct.  The court explained, after the primary, the candidate and the party have identical interests, that is, getting the candidate elected. (The court pointed out, of course, if Nick Lampson, the D candidate for Mr. DeLay’s seat, wanted to bring this case, he had standing to do so, too, based on these same reasons.)

Qualifications Clause

The Constitution requires the candidate for Representative must live in the state at the time of the election.  The court agreed the RPT could not know prospectively whether Mr. DeLay would satisfy this residency requirement.   By determining in May he was not eligible, the court said Ms. Benkiser had unlawfully created a “pre-election inhabitancy requirement” not found in the U.S. Constitution.

Texas Election Law

This is the money holding.  The language here will inform how to bring the case that will prevent the state of Texas from printing the name of Barack Obama on the 2012 Presidential (Electors) ballot.  (Remember, we only elect Electors in the general election; but even the D’s would not steal the election for Barack Obama at the level of the vote of the Electors, in December, when people believe they elected the President in November’s general election.  See NEVER LESS THAN a TREASON (2 of 2).)

Here is the complete section of the court’s decision dealing with the TDP’s charges, the RPT violated TX election law.  (I have omitted all annotations, which can be accessed in the link provided to the appellate case, above.)

Apart from the federal constitutional questions, this case presents a state-law statutory question. For the purposes of this section, we assume arguendo that it would be constitutional for a state actor to make pre-election, prospective judgments about residency and that Benkiser in fact made such a judgment. Even granting those assumptions, the RPT’s declaration of ineligibility would violate Texas law because DeLay’s future residency was not conclusively established by public record.

DeLay’s Future Inhabitancy Was Not “Conclusively Established”

Although the public records relied on by Benkiser may have conclusively established DeLay’s present residency in Virginia, they did not conclusively establish whether he will inhabit Texas on election day. Proof of DeLay’s present residency may suggest where he will be in the future; however, it does not put the matter beyond dispute or question.

Benkiser relied on three public records to declare DeLay ineligible:

1) DeLay’s Virginia driver’s license;

2) DeLay’s Virginia voter registration; and

3) An employment withholding form reflecting DeLay’s Virginia residence.

These documents do not conclusively establish whether DeLay will be an inhabitant of Texas on November 7, 2006. DeLay could be a current resident of Virginia, as the documents above provide, and nonetheless move back to Texas before November 7. Indeed, Benkiser admitted in her testimony that the public records could not prove DeLay’s residency on election day and that DeLay could move back to Texas before election day.

Information that was before Benkiser showing DeLay’s eligibility supports this conclusion. Benkiser had before her DeLay’s original candidacy application, in which he swore that he was eligible for office. In terms of the Qualifications Clause, such a declaration necessarily contained an implicit promise that DeLay would be an inhabitant of Texas on election day. It is also likely that Benkiser knew—because the RPT confirmed his eligibility in prior elections—that DeLay had been an inhabitant of Texas for decades. Under these circumstances, the public records provided by DeLay could not have conclusively established his future residency. Predicting DeLay’s future inhabitancy would have required a finding of fact, which the RPT had no authority to make. See, e.g., In re Jackson, 14 S.W.3d at 848-49.

The RPT argues against this analysis on several grounds, none of which is persuasive. First, relying on the language of the statute (“another public record”), the RPT contends that “one … public record is sufficient for a declaration of ineligibility.” If this is true, the RPT contends, surely three public records are sufficient. This argument ignores § 145.003’s second requirement: that ineligibility must be conclusively established. Put another way, any number of public records may be sufficient only if they meet the “conclusively established” burden. Such is not the case here.

Second, the RPT relies on Nixon v. Slagle, 885 S.W.2d 658, 659 (Tex App.-Tyler 1994, orig. pet.), for the proposition that a prospective candidate’s voter registration form showing residence outside the jurisdiction in question is sufficient to conclusively establish ineligibility. The RPT’s argument ignores a key difference between Nixon and the case at bar. Nixon involved Texas’s state residency qualification for a state senate seat, which required a candidate to be a resident of the relevant district for a year preceding the election. See Tex. Const. art. III, § 6. Therefore, the question in Nixon was the location of the candidate’s current residence for state constitutional purposes, 885 S.W.2d. at 662, not (as here) DeLay’s future inhabitancy for federal constitutional purposes. The latter issue is speculative and cannot be proven conclusively by a voter-registration form showing current residence.

Third, the RPT cites Jones v. Bush, 122 F.Supp.2d 713 (N.D.Tex.2000). Its reliance on that case ignores that Jones did not involve Texas’s state-law “conclusively established” standard. In addition, the RPT’s use of Jones obscures that Jones‘s discussion of inhabitancy was in reference to present, not future, inhabitancy. Jones‘s definition of the term “inhabitant” cannot make the RPT’s effort to predict DeLay’s future any more definitive. Contrary to the RPT’s suggestion, this Court cannot “presume that DeLay will remain an inhabitant of Virginia;” rather, the fact must be conclusively established by public record under Texas law. It is not.

In conclusion, DeLay’s future inhabitancy could not be determined conclusively without a finding of fact. His election-day inhabitancy outside Texas was not beyond dispute or question. Thus, Benkiser violated §145.003 by declaring DeLay ineligible.

In other words, under Texas elections law, if a party Chair can conclusively establish in advance of the day of the election that, based on the record, a Congressional candidate will not satisfy the residency requirement under Article I section 2 of the U.S. Constitution, s/he may determine the candidate is ineligible for office and cause the SoS to remove the name of that candidate from the ballot.  But this advance determination of ineligibility could not be “conclusively established” under the set of facts of this case.  However, establishing Presidential eligibility under the Qualifications Clause in Article II section 1 need not await the day of the election.  After all, a candidate for President cannot acquire the status of “natural born citizen” prospectively or retroactively.

And, while the Chair of the political party is not a fact finder under the law for the purpose of determining whether a candidate is eligible for the office sought; s/he may find ineligibility where this status is conclusively established in the record.

In CLOWNS to the LEFT of ME; JOKERS to the RIGHT (2 of 2), I construct the legal case that will enable those Plaintiffs with standing in Texas to establish, they have found the fact of the ineligibility of candidate Barack Obama conclusively established in the record.

(to be continued)

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Freedom costs.


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