Presidential Eligibility Suit: Harris not a “natural born Citizen”

by Sharon Rondeau

(Sep. 2, 2024) — On August 26, Schuyler County, NY resident and registered voter Montgomery Blair Sibley uploaded his “Complaint for Declaratory Relief” filed August 12 in New York Supreme Court naming as defendant Kristen Zebrowski Stavisky “solely in her official capacity as Co-Executive Director of the New York Board of Elections and New York’s Chief Election Official.”

Zebrowski Stavisky was appointed in 2021 to the Co-Executive Chairman post by Gov. Kathy Hochul and later to “Chief Election Official,” according to her official biography.

In his complaint, Sibley, a former practicing attorney, alleged “that Kamala Harris is ineligible to appear on the November 5, 2024, New York Election Ballot” on the grounds she is not a “natural born Citizen” as required by Article II, Section 1, clause 5 of the U.S. Constitution for the president and commander-in-chief.

“The phrase ‘natural born Citizen’ appears just once in the Constitution while the
phrase ‘citizen’ appears twenty-one (21) times,” Sibley wrote on page 4 of the complaint. “Plainly, the Founders intended something more than just ‘citizenship’ in order to be President of the United States.”

Sibley acknowledged in his summary of the case that different views exist on the meaning of “natural born Citizen,” specifically referencing the 2015 essay by former Solicitors General Neal Katyal and Paul Clement published in the Harvard Law Review Forum and discussed at length at The Post & Email.

“That is why I have filed this suit; to try and get a determination from SCOTUS, the court-of-last-resort, on what ‘natural born Citizen’ means,” Sibley went on to explain.

In supporting his interpretation of the term, Sibley invoked the U.S. Supreme Court’s 2022 Dobbs opinion as to “the proper path to follow to determine the meaning of a legal term-of-art”; Emmerich de Vattel’s 1758 treatise, The Law of Nations; a July 25, 1787 letter from future New York Governor and future U.S. Supreme Court Chief Justice John Jay to George Washington, then presiding over the Constitutional Convention; and the Convention’s Committee on Postponed Matters‘ finalization of Article II, Section 1, clause 5 (as expounded upon at The Post & Email by legal scholar Joseph DeMaio) to support his contention that a “natural born Citizen” “requires both parents to be U.S. Citizens at the time of birth.”

“Kamala Iyer Harris was born on Oct. 20, 1964, in Oakland, California and as such
is a citizen of the United States,” Sibley wrote on page 3. “A copy of her Birth Certificate is attached hereto. However, neither Kamala Iyer Harris’ mother, Gopalan Shyamala, nor her father, Donald Jasper Harris were Citizens of the United States at the time of Kamala Iyer Harris’ birth. Upon information and belief, at the time of Kamala Iyer Harris’ birth both her parents were in the United States on temporary student visas, with the express condition that both were ‘non-immigrant students.'”

After filing the complaint and paying the requisite fee, Sibley wrote, Judge Christopher P. Baker simply dismissed it, then hastily corrected his error when challenged. “Supreme Court Judge Baker on August 20, 2024, without giving me notice or an opportunity to be heard, entered his Order sua sponte dismissing the Complaint,” Sibley wrote on his Substack. “The next day, August 21, 2024, I responded with my Motion to Vacate the Order of Dismissal. Two hours later, Supreme Court Judge Baker ‒ realizing his grotesque violation of due process ‒ through his law clerk contacted me and directed me to file a Notice of Hearing for Thursday, August 29, 2024 at 1:30 p.m. in Watkins Glen, New York” (emphasis original).

The hearing took place as scheduled. On Friday Sibley told this writer, “As I expected, the Judge refused to vacate his dismissal order.  Now I will file my notice of appeal on Tuesday and prepare an emergency petition for certiorari to the U.S. Supreme Court.  I hope to have that filed by September 7.  Then the question of Kamala Harris’ eligibility will be in front of them.”

In a footnote on his Substack, Sibley recounted challenging, though not through the courts, presidential candidates from the Republican Party in response to Katyal and Clement’s article:

For those who think I am only filing suit because Kamala Iyer Harris is a Democrat, please note that I raised the same challenge in 2015 in my submitted-to-Harvard-but-not-published note: “Response to the Note of Paul Clement and Neal Katyal: “On the Meaning of Natural Born Citizen”. In that “Response” I raised the same “natural born Citizen” concern in regards to then-declared Republican Presidential candidates Senators Marco Rubio and Ted Cruz, and the then soon-to-be declared Presidential candidate Governor Bobby Jindal.

In his response, Sibley faulted the authors on a number of points, including their failure to cite Minor v. Happersett, a voting-rights case wherein the high court wrote, relative to the “natural born” question:

The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.

“…the attempt of Messrs. Clement and Katyal⁹ to conflate non-naturalized ‘citizen’ with ‘natural born Citizen’ simply cannot withstand the most basic legal analysis…,” Sibley concluded his searing critique of their essay.

Sibley’s footnote connected Katyal’s solicitor-general role directly to the “natural born Citizen” issue:

Mr. Katyal served as Acting Solicitor General of the United States from May 2010 until June 2011. During that time, he had the opportunity – but expressly declined – to urge the United States Supreme Court to finally decide the issue of the definition of “natural born Citizen” in Charles Kerchner, Jr., et al., v. Barack H. Obama, President of the United States, et al., Case No.: 09-4209, Decision Date: July 2, 2010. Thus I find it curious that My Katyal [sic] is now so certain in his opinion when now it is of no legal effect. Legal indeterminacy is very convenient to tyrants as it allows the law to mean whatever is politically expedient to the tyrant at the moment.

After working its way through the New Jersey, U.S. District and federal appellate courts, Kerchner, brought by the late Attorney Mario Apuzzo and plaintiff CDR Charles F. Kerchner, Jr. (Ret) to the U.S. Supreme Court, was denied a hearing.

Editor’s Note: As noted on her birth certificate, which is publicly available by state law, Harris was initially given the middle name “Iyer.” According to Politico in November 2021:

Two weeks after Harris was born in 1964, her parents legally changed her middle name.

The alteration caught the eye of CHIDANAND RAJGHATTA, the longtime D.C.-correspondent for Times of India who has a new biography of Harris just released in India called “Phenomenal Woman” (it’s being released in the U.S. in January).

The book is sympathetic—”Luckily for Kamala, self-assurance and self-belief came easily and early,” goes one passage—and treads some familiar ground. But it also offers some rich insight into Harris’ Indian heritage and her parents. The middle name change is notable, Rajhatta told West Wing Playbook, because Iyer and Devi have very different connotations in Indian culture.

“It’s very obvious the moment somebody says ‘Iyer,’ you know he or she is Brahmin and Brahmin is one of the highest castes in the caste hierarchy in India,” he said. Devi, by contrast, is a much more commonly used name that is also a powerful female deity. “My sense is her parents dropped Iyer to avoid any caste connotation,” he said.

On September 25, 2020, The Post & Email reported, based on documentation obtained by the “X” account-holder @kancelkamala (also @kamalakancel):

In the State of California, an “informational copy” of a birth certificate may be obtained by members of the public unrelated to the registrant.

The certificate states Harris’s birth as having occurred on October 20, 1964 at “9:28 P.” at the Kaiser Foundation Hospital located at 280 West MacArthur Blvd., Oakland, Alameda County, a facility now referred to “Kaiser Foundation Hospital Oakland/richmond.”

The “maiden name” of the child’s mother is noted as “Gopalan Shyamala,” and her race “Caucasian.”

Harris’s middle name is given as “Iyer” and not “Devi,” as she is now known.  Overlapping the box with “Iver” is a stamp which reads, “AMENDED” with “1 of 2” in a box below it.

Below the birth certificate section is a document titled “AFFIDAVIT TO CORRECT A RECORD” stamped “2 of 2” with the purpose noted, “To correct middle name of child” from “Iyer” to “Devi.”

According to a document obtained by @kancelkamala and posted at the website KamalaHarrisIneligible.com, the “correction” of Kamala Harris’s middle name was requested February 2, 1965 and “accepted and filed” on February 18, 1965.

Further documentation released by the account demonstrates that Harris’s mother, Shyamala Gopalan Harris, was not considered an “immigrant” based on her “nonimmigrant student” visa. In April 1965, Gopalan Harris applied for a “nonimmigrant visitor” visa.