Kreep outlines weaknesses in Motion to Dismiss

COUNSEL FOR DRAKE AND ROBINSON HAD REBUTTED MOTION FOR LIMITED DISCOVERY

by John Charlton

(Sept. 21, 2009) — Last week Attorney Gary Kreep, of the United States Justice Foundation, filed his opposition application for a Limited Stay of Discovery in Barnett et al. vs. Obama et al, on behalf of his plaintiffs, Dr. Wiley Drake and Mr. Markham Robinson.

Though the Motion for Limited Discovery was granted by Judge David O. Carter, on the grounds that the Defense’s Motion to Dismiss, to be considered on Oct. 5th, was dispositive, Attorney Kreep’s application outlines the weaknesses which surely will also be attacked by Dr. Orly Taitz, the lead counsel in the case, later this month, in her filing on behalf of Captain Barnett and the many other plaintiffs.

Attorney Kreep argued first, that his clients had standing:

Standing is proper when there is an injury in fact, caused by the Defendant, and redressable by the court. The Court in Hollander v. McCain held “a candidate or his political party has standing to challenge the inclusion of an allegedly ineligible rival on the ballot, on the theory that doing so hurts the candidate’s or party’s own chances of prevailing in the election.” (Hollander v. McCain (2008) 566 F.Supp.2d 63). Here, Dr. Wiley Drake was a candidate for Vice President of the United States running against Defendant Barack Obama in the 2008 election. As a Vice Presidential candidate, Dr. Drake has an interest in having a fair competition for that position.

And explains how he believes Obama injured each:

Defendant Obama entered this race without having met the eligibility requirements for the office of President of the United States and, as a result, Dr. Wiley Drake has been injured because he did not have fair competition for the office of Vice President of the United States, and, thus, was not given a fair
opportunity to obtain votes for Vice President of the United States.

Here also, Mr. Robinson was a Presidential Elector in the 2008 election. As an Elector, he had an interest in there being a fair competition between the candidate he pledged to vote for and the other candidates for the office of President of the United States. Mr. Obama entered this race without having met the eligibility requirements for the office of President of the United States and, as a result, Mr. Robinson has been injured because the candidate he pledged to vote for did not have a fair competition for the office of Vice President of the United States, thus preventing Mr. Robinson from casting a vote for the candidates he pledged to vote for as Elector.

Kreep then rebuts the 2 pronged attack by the Defense against standing, on the grounds that the complaint by the plaintiffs was not redressable by the Courts:

First, 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. The United States Constitution (hereinafter referred to as “U.S. Const.”), Article (hereinafter referred to as “Art.”) 5, requires a two-thirds vote of both houses of Congress and ratification by three-fourths of all State legislatures in the United States (U.S. Const., Art. 2). Even if the people of the United States voted to elect as President a candidate who did not qualify for the position, that vote would not be sufficient to overcome the Constitutional requirements for office and make that candidate eligible. Because voters can and do vote for candidates that are liked by the voters, even if those candidates may not be eligible for the position, the voters do not have the power or the right to determine the eligibility of a candidate.

And then regarding the Electoral College:

In addition, the Electoral College is not empowered with the authority to determine the eligibility of any candidate. In twenty-six States and the District of Columbia, Presidential Electors are prohibited by statute from voting in variance with their pledges, or, if they do, they face civil or criminal penalties and fines. The act of determining eligibility is one that requires discretionary authority so that a candidate found to be ineligible may be removed. However, any discretionary authority of the majority of the State’s Presidential Electors has been removed by statute, and the Presidential Electors, instead, perform a ministerial function of casting their votes in accordance with the popular vote of the State that each Elector represents. The assertion of Defendants that the Electoral College has the authority to make any determination of a Presidential candidate’s qualifications is unpersuasive because, while the historical intent of the of the Electoral College was to make such determinations, the modern majority trend of the States is to limit the duties of the Electors to the ministerial role of casting a vote for the candidate chosen by the popular vote of their respective States.

And notes that the Court has the authority to order a Secretary of State to remove an ineligible candidate from the ballot:

Further, in State ex rel. Robinson v. Craighead County Bd. of Election Com’rs, the Appellate Court reversed the lower court’s determination that “the Board of Election Commissioners had the power to make factual determinations concerning a candidate’s eligibility and that, once that determination was made, mandamus could not compel an opposite result” (State ex rel. Robinson v. Craighead County Bd. of Election Com’rs (Ark. 1989) 300 Ark. 405, 409), holding that, “the board does not have the authority to declare a candidate ineligible and remove his name from the ballot when there is a dispute concerning the facts or the law” (State ex rel. Robinson v. Craighead County Bd. of Election Com’rs (Ark. 1989) 300 Ark. 405, 409).

He also cites cases which determine that hearings by Congress would not be proper to determine the eligibility of candidates, on the grounds that political corruption can too easily sway the findings:

May this question be considered or decided by the Chairman and Secretary of the Committee? It may be that such power can be conferred upon them by laws of this State or the rules of the party; but it is certain that this has not yet been done. If this can be done, and should be done, the door would be opened wide for corrupt and partisan action. It might be certified that a prospective candidate has sufficiently complied with the laws of the State and the rules of a political party to become a candidate, and, upon further consideration, that holding might be recalled; and this might be done before that action could be reviewed in a court of competent jurisdiction and reversed in time for the candidate to have his name placed on the ticket. It would afford small satisfaction if, after the ticket had been printed with the name of the candidate omitted, to have a holding by the court that the name should not have been omitted.” (Irby v. Barrett (1942) 163 S.W.2d 512, 514).

And therefore concludes reasonably, that the Court is the proper venue to determine questions of eligibility:

Because of the risk of “corrupt and partisan action” the proper remedy for eligibility disputes is to bring such disputes to the Court for a determination, rather than to Congress or the Electoral College, and because this Court has the power to make determinations of fact and law regarding controversies over the eligibility of a political candidate, this Court has the power to redress the injury suffered by
PLAINTIFFS.

Then Attorney Kreep argues against the Defense’s appeal to the political doctrine; namely that the Federal Courts cannot interfere where the Constitution grants authority to the other branches to act; to wit, in this case, that the Joint Session of Congress determined the eligibility on Jan. 8, 2009, when the Electoral votes were counted, under Vice President Dick Cheney’s supervision.  Kreep argues that his plaintiffs do not object over the actions of the Electoral College or Congress, but to the eligibility of Barack Hussein Obama, and thus their objection based on the ministerial duty of Congress or the Electoral College is praeter rem:

Because the language of 3 U.S.C.A. § 15 only allows for objections regarding “any vote or paper from the State,” Defendants’ assertion that this Federal law is the “remedy for disputes over a candidate’s eligibility for office” is incorrect. Since this action is a dispute over the eligibility for Barack Obama for the office of President of the United States, and not a dispute over whether the Electors properly cast their vote, this Court has jurisdiction over this dispute and may properly make a determination on this matter.

In conclusion, as discussed above, the Electoral College lacks the authority to make a determination regarding a candidate’s eligibility because it performs a purely ministerial function. Since the remedy that Defendants allege does not cover the issues presented in this case, and because political bodies are not empowered to make determinations of law and fact, this case does not present a political question.

Attorney Kreep concludes by arguing that the Court has subject matter jurisdiction, thus:

A “case” arises within meaning of this clause pertaining to the judicial power of the United States, when any question respecting the Constitution, treaties or laws of the United States has assumed such a form that the judicial power is capable of acting on it, and there must be an actual controversy over an issue, and the mere form of proceeding is not significant. (In re Summers (1945) 65 S.Ct. 1307, rehearing denied 66 S.Ct. 94). Here, the issue is one arising under the Constitution, whether Barack Obama meets the eligibility requirements for the Office of President of the United States, as required under Art. 2, § 1 of the U.S. Constitution. As established above, PLAINTIFFS have standing to bring this action as they have suffered a concrete injury in fact, caused by Barack Obama, for which the Court has a remedy. Because PLAINTIFFS have established the requirements for standing, and because this case presents an issue regarding a Federal Question arising out of the Constitution, this Court has Subject Matter Jurisdiction over the issues raised in this case.

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