Judges: Court could review eligibility after Congress

October 27, 2010 @

State ruling suggests intervention, if any, after ‘processes have run their course’

By Bob Unruh
© 2010 WorldNetDaily

Three judges on the Court of Appeal in California’s 3rd District appear to be saying that a judicial review of a president’s eligibility is a possibility – after the Electoral College and congressional procedures run their courses.

They also suggest that state officials can remove someone from a presidential ballot for being ineligible when they want to, but they don’t really have to do that.

The results are found in an opinion that upholds a state district court’s dismissal of a challenge to the procedures under which California’s electors helped install Barack Obama in the Oval Office.

The case was pursued on behalf of Ambassador Alan Keyes, Wiley S. Drake Sr. and Markham Robinson. It alleged that both the California Secretary of State Debra Bowen and the state’s electors for the Electoral College in the 2008 election failed to verify that Obama is eligible.

Keyes, Drake and Robinson also remain plaintiffs in a similar complaint in the federal court system. The case is now is pending before the 9th U.S. Circuit Court of Appeals.

In the federal case, the plaintiffs are represented by Gary Kreep of the United States Justice Foundation and California attorney Orly Taitz.

In the state case, only Kreep is involved.

The state court says the plaintiffs relied on a 1968 case in which the California secretary of state refused to have activist Eldridge Cleaver’s name on the ballot “because he was only 34 years old, a year short of the requisite 35 years of age needed to be a presidential candidate.”

“In appellants’ view, this shows the secretary of state has the duty to investigate a candidate’s qualifications and remove the person from the ballot if their qualifications are found lacking. No so,” the judges said.

“The fact that former Secretary of State Jordan excluded a candidate, who indisputably did not meet the eligibility requirements, does not demonstrate that the secretary of state has a clear and present ministerial duty to investigate and determine if candidates are qualified before following the statutory mandate to place their names on the general election ballot,” the judges said.

The judges did not reference evidence in the case for their conclusion that the 1968 candidate “indisputably did not meet the eligibility requirements.”

The case, and dozens of others, including some now working their way into the U.S. Supreme Court, contend Obama has not proven his eligibility and the available evidence shows he might not meet the Constitution’s requirement that the president be a “natural born citizen.”

The judges advised that the “investigation of eligibility is best left to each party, which presumably will conduct the appropriate background check.”

The court took note of the Constitution’s provisions for handling a case in which a “president-elect shall have failed to qualify” but said the responsibility is left to Congress.

But the opinion also suggested a line of responsibility that would include the courts. It warned that should Congress fail to act “in the first instance” – and during the 2008 election there was no action on the part of Congress regarding the issue – “Judicial review – if any – should occur only after the electoral and congressional processes have run their course.”

The attorney who argued the case also has cited the court precedent that chief executives of government can be removed by the courts over eligibility issues.

North Dakota Gov. Thomas Moodie, removed from office when the state Supreme Cour fond him inible

The court precedent comes out of North Dakota, where the governor was removed from office after the state Supreme Court determined he did not meet the state constitution’s eligibility requirements.

The court opinion did not address the issue.

The president’s lawyers in many of the cases have said, and judges have agreed so far, that the courts simply don’t have jurisdiction over a question of eligibility because of the Constitution’s provision that presidential eligibility issues must be handled by Congress during the approval of the Electoral College vote, or a president must be removed by impeachment, which also rests with Congress.

In one case, the president’s lawyers prominently argued, “The Constitution’s commitment to the Electoral College of the responsibility to select the president includes the authority to decide whether a presidential candidate is qualified for office.

“The examination of a candidate’s qualifications is an integral component of the electors’ decision-making process. The Constitution also provides that, after the Electoral College has voted, further review of a presidential candidate’s eligibility for office, to the extent such review is required, rests with Congress,” the president’s lawyers argued.

But it was in “State ex rel. Sathre v. Moodie,” after Thomas H. Moodie was elected to the office of governor of the state of North Dakota, according to court filings, “it was discovered that Thomas H. Moodie was not eligible for the position of governor, as he had not resided in the state for a requisite five years before running for office, and, because of that ineligibility, he was removed from office and replaced by the lieutenant governor.”

North Dakota’s historical archives document the case.

The Democrat was nominated by his party for governor in 1934 and beat his Republican opponent, Lydia Langer.

“As soon as the election was over, there was talk of impeachment, but no charges were filed,” the state’s archives report. “After Moodie’s inauguration on January 7, 1935, it was revealed that he had voted in a 1932 municipal election in Minnesota. In order to be eligible for governor, an individual has to have lived in the state for five consecutive years before the election. The State Supreme Court determined that Governor Moodie was ineligible to serve, and he was removed from office on February 16, 1935,” the state reports.

The original case sought to prevent Bowen from certifying California’s electors for the Electoral College vote; it later was amended to correct the deficiencies it identified in future elections.

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