By Bob Unruh
© 2010 WorldNetDaily
U.S. President Barack Obama leaves Bunch of Grapes bookstore in Vineyard Haven on Martha's Vineyard, Massachusetts, August 20, 2010. The first family is on a 10-day summer vacation. REUTERS/Jim Young (UNITED STATES - Tags: POLITICS)
The California Supreme Court is being asked to make sure state officials check the eligibility of candidates for president in a case that argues there's no other procedure to do that and if there is to be a Constitution, its provisions cannot be voided by a vote of the people.
The arguments come in a request for the state's highest court to hear arguments in a case in which a lower appellate court suggested that a judicial review of a president's eligibility is a possibility.
That suggestion came in a ruling that affirmed 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.
In his petition for review, Kreep explains that unless the courts make a determination, it will be tantamount to abandoning the clear requirements of the U.S. Constitution because a political party could nominate a candidate in violation of the Constitution, and voters might not either know or care about the result.
WND has reported on the multiple legal cases challenging Obama's eligibility, and several state legislatures are working on proposals that would require presidential candidates to submit proof of their eligibility. A similar proposal has been introduced in Congress by Rep. Bill Posey, R-Fla.
The claims are that Obama does not meet the U.S. Constitution's requirement that a president be a "natural born citizen." The lawsuits have asserted he either was not born in Hawaii as he claims or was a dual citizen because of his father's British citizenship at the time of his birth.
The Constitution, Article 2, Section 1, states, "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President."
However, none of the cases filed to date has been successful in reaching the plateau of legal discovery, so that information about Obama's birth could be obtained.
Besides Obama's actual birth documentation, the still-concealed documentation for him includes kindergarten records, Punahou school records, Occidental College records, Columbia University records, Columbia thesis, Harvard Law School records, Harvard Law Review articles, scholarly articles from the University of Chicago, passport, medical records, his files from his years as an Illinois state senator, his Illinois State Bar Association records, any baptism records, and his adoption records.
In the pending request to California's court, the plaintiffs reveal the defendants claim "there exists no textually demonstrable constitutional commitment of the issue of verifying eligibility for serving in the office of president."
"The issue of whether OBAMA is eligible to serve as president of the United States is one that has 'significant political overtones,' given that it has a direct relation to the election of the most powerful political office in the United States, but it is, nonetheless, an issue which the court can make a determination on, because the requirements for said office are clearly stated in Article II, Section 1, Clause 5, of the U.S. Constitution, and courts routinely decide questions such as at issue in this case," said the request.
"A provision of the Constitution may not be disregarded by means of a popular vote of the people, as there are specific guidelines for amending the Constitution of the United States," it continued.
While the process for determining whether a candidate is eligible is addressed nowhere in the Constitution or federal legislation, the appeal said, it would be a violation of the doctrine of separation of powers for an executive branch decision to be controlling. And while the legislative branch determines election law, it should rest with the courts to determine whether California "was in line both with its own state constitution and the United States Constitution."
In California, the secretary of state already ensures that election requirements are met, including the eligibility, for all candidates except those put forward for the office of president by a "national" party.
"Since the secretary of state does have a ministerial duty to verify the eligibility for nearly all of the candidates for office, it is not improper to infer that she also has a ministerial duty to verify the eligibility of those who are running for the office of president of the United States. However, California Elections Code (hereinafter referred to as 'EC') Section 6901 is at odds with remainder of the secretary of state's duties specified in the California Code, because this statute directs that the secretary of state must place on the ballot the names of the several political parties' candidates. (EC Section 6901). The effect of this statute is that the secretary of state's duty to ensure compliance with election law is suspended in favor of some other entity," said the request.
Political parties certainly cannot be trusted to make sure candidates meet constitutional requirements, since they "exist for the purpose of obtaining power by encouraging the election of candidates who associate with the party. This means that the parties have an interest in winning elections, whether or not their candidate is eligible, and if said party can win only by putting forward a popular yet ineligible candidate, what would prevent the parties' support of the ineligible candidate if there was a chance the lack of eligibility would not be found out?"
Nor can voters, by a majority vote, amend the Constitution, the argument states.
"Elections for the office of president of the United States are a serious matter. The office is not only the most powerful elected position in the United States, but it is also the most powerful political position in the entire world. Because of vast power available to anyone who wins this office, there is a significant public interest in ensuring that the position is held only by someone who meets the constitutional qualifications for holding the office," the request explains.
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 Court found him ineligible
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 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 Obama 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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