2012/02/04

Obama to appear on Georgia ballot

The opinion of Judge Michael Malihi of Georgia's Office of State Administrative Hearings (OSAH), issued on February 3, is essentially correct, because the claim was not properly framed. The basic problem is that voters do not vote for the candidate for president. They vote for electors for a candidate for president. The problem can be more easily understood if we had a group of elector candidates pledged to vote for "Mickey Mouse". Now Mickey Mouse is not qualified to be president, but that doesn't mean elector candidates pledged to vote for him could properly be excluded from the ballot. It is not a proper remedy to intervene at that point.

The 2009 Indiana case of Ankeny v Governor was also decided correctly, and that case opinion provides a good assembly of the historical evidence for the meaning of "natural born citizen", that it is only about birth on U.S. soil and not about the nationality of parents unless they are foreign diplomats or occupying enemies.

There are only three points at which the eligibility of the candidate for president can be challenged:
  1. At the point the electors' votes are counted. The proper remedy to be sought in litigation would be an injunction against counting any votes for an ineligible candidate for president, or reporting them to Congress.
  2. At the point electors' votes are counted and certified by Congress. But courts do not have jurisdiction to tell Congress what to do. We must rely on them to voluntarily comply with the Constitution, and if they do not, the only remedy is to not re-elect them.
  3. At the point of inauguration. But there is no official empowered to withhold inauguration from an ineligible candidate for president, and therefore no one that could be commanded by a court not to do so, even if the court had jurisdiction over such a person.
Once again a cause is lost because its champions didn't plead it correctly.

But it also points to the need for a constitutional amendment to provide a process for determining the eligibility of a candidate for president or other offices.


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