powell-swensson-welden v obama, petition for writ of certiorari, us supreme court 6-28-2012
TRANSCRIPT
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QUESTIONS PRESENTED FOR REVIEW
Question #1:
Does the right to associate force states to
accept any candidate from political parties for
presentation on state primary ballots when such a
candidate does not meet the minimum legal
qualifications for the office sought, thereby negating
state election laws and state control of elections?
Question #2:
Are all individuals born on U.S. soil Article II
natural born citizens, regardless of the citizenship
of their parents?
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PARTIES TO THE PROCEEDING
Pursuant to Rule 14.2(b), the following list
identifies all of the parties appearing here and before
the Georgia Supreme Court, Georgia Superior Court,
and Georgia Office of State Administrative Hearings.
The Georgia Office of State Administrative
Hearings consolidated four cases filed with that
office by eight individuals. The Georgia Superior
Court and Georgia Supreme Court thereafter treated
the consolidated case as one action for purposes of
appeal.
The petitioners here and appellants below are
David Welden, Carl Swensson, and Kevin RichardPowell, all three of whom are individuals residing in
Georgia. The other appellants below, David Farrar,
Leah Lax, Cody Judy, Thomas Malaren, and Laurie
Roth are not parties to the instant petition.
The respondent here, and appellee below for
all cases, is Barack Obama. Mr. Obama was and is
named in his private capacity as a candidate for the
Office of President of the United States of America.1
1 Hereinafter this Petition will refer to the respondent,
President Obama, also known as Barack Hussein Obama Jr.,
Barack Obama II, and Barry Soetoro, as candidate Obama.
This reference is not intended to be disrespectful to the office of
the President or to the individual Barack Obama. It is used only
to identify the individual, separate from the office, to note that
candidate Obama has not yet been elected to the term of office
at issue in the instant litigation, and to simplify communication
for purposes of this Petition.
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TABLE OF CONTENTS
Page
Questions Presented i
Parties to the Proceedings ii
Table of Contents iii
Table of Authorities vii
Opinions Below 1
Jurisdiction 2
Statutory and Constitutional Provisions 2
Involved
Statement of the Case 2
Reasons for Granting the Petition 4
I. Question I: Does the Right to Associate 6Force States to Accept Any Candidatefrom Political Parties for Presentation
on State Primary Ballots When Such
a Candidate Does Not Meet Minimum
Legal Qualifications for the Office Sought,
Thereby Negating State Election Laws and
State Control of Elections?
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TABLE OF CONTENTS (cont.)
Page
II. Question II: Are All Individuals Born on 11U.S. Soil Article II-Natural Born
Citizens, Regardless of the Citizenship
of Their Parents?
A. The Minor Court Defined Natural 13Born Citizen in Order to Reach its
Holding
B. Precedential Status of the Minor 14Courts Definition of Natural Born
Citizen
C. The MinorCourts Discussion of Other 16Categories of Citizen Confirms that
The Courts Definition of Natural Born
Citizen is Part of its Holding
D. Georgias Ruling Violates the Minor 17Courts Holding that the 14th
Amendment Did Not Add to thePrivileges and Immunities of a Citizen
E. This Courts Wong Kim Ark Holding 18Does not Conflict with Minor and Does
Not Support the Georgia Ruling
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TABLE OF CONTENTS (cont.)
Page
F. Rules of Construction Support 20Petitioners Harmonized Readings of
Minor and Wong Kim Ark
G. Indiana State Court Lacked 21Jurisdiction to Reach the Article II
Issue
III.Mootness 23Conclusion 25
Appendix 1a
Part A 1a
Georgia Supreme Court Orders Denying
Review, April 4, 2012
Part B 4a
Superior Court of Fulton County, State of
Georgia, Order Granting Defendant Obamas
Motion to Dismiss Appeal, March 2, 2012
Part C 10a
Georgia Secretary of State, Final Decision
Adopting the Decision of the Georgia Office of
State Administrative Hearings, February 7, 2012
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TABLE OF CONTENTS (cont.)
Page
Part D 13a
Georgia Office of State Administrative Hearings,
Ruling All Persons on U.S. Soil to be Article II
Natural Born Citizens, February 3, 2012
Part E 25a
Constitutional Provisions Involved
Article II 1 Clause 5; Amendments I & XIV
Part F 26a
Statutory Provisions Involved
O.C.G.A. 21-2-15 and 21-2-5
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TABLE OF AUTHORITIES
Cases Page
Ankeny v. Governor, 22-24
916 N.E.2d 678 (Ind. Ct. App. 2009)
Belluso v. Poythress, 7, 8
485 F.Supp. 904 (N.D. Ga. 1980)
Democratic Party of the U.S. v. Wisconsin, 7, 8450 U.S. 107 (1981)
Duke v. Cleland, 7, 8
954 F.2d 1526 (11th Cir. 1992)
Gen. Motors Accpt. Corp. v. United States, 21286 U.S. 49 (1932)
Lyng v. N.W. Indian Cemetery 23
Protective Assn.,
485 U.S.439 (1988)
Marbury v. Madison, 20, 22
5 U.S. 137 (1805)
Morton v. Mancari, 21
417 U.S. 535 (1974)
Minor v. Happersett, 11-16
88 U.S. 162 (1875)
United States v. Borden Co., 21
308 U.S. 188 (1939)
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TABLE OF AUTHORITIES (cont.)
Cases Page
United States v. Tynen, 21
78 U.S. 88 (1870)
United States v. Wong Kim Ark, 12, 17-22
169 U.S. 649 (1898)
Wood v. United States, 21
41 U.S. 342 (1842)
Constitution
Article II 1 Passim
Amendment I 10
Amendment XIV 17, 20-22
Statutes
28 U.S.C. 1257 2
O.C.G.A. 21-2-5 2, 6, 9, 10
O.C.G.A. 21-2-15 2, 6, 9
Dictionary
Blacks Law Dictionary, 16, 19
Bryan A Garner ed., 7th Ed., West 1999
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PETITION FOR A WRIT OF CERTIORARI
The petitioners respectfully petition for a writ
of certiorari to review the opinion and judgment of
the Supreme Court for the State of Georgia.
OPINIONS BELOW
The orders of the Supreme Court for the State
of Georgia, dated April 4, 2012, affirming the opinion
of the Georgia Superior Court for the State of
Georgia in the County of Fulton are reproduced at
App. 1a.
The order of the Superior Court for the State
of Georgia in the County of Fulton, dated March 2,
2012, dismissing petitioners appeal from the
judgment of the Georgia Secretary of State, is
reproduced at App. 2a-7a.
The Order of the Secretary of State, dated
February 7, 2012, adopting the Decision of the
Georgia Office of State Administrative Hearings,
dated February 3, 2012, granting defendant-
respondents motion for summary judgment, is
reproduced at App. 8a-10a.
The Decision of the Georgia Office of State
Administrative Hearings, dated February 3, 2012,
granting defendant-respondents motion for
summary judgment, is reproduced at App. 11a-22a.
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JURISDICTION
The judgment of the Supreme Court of the
State of Georgia was entered on April 4, 2012. This
petition is timely filed under 28 U.S.C. 1257
because it is being filed within 90 days of the entry ofthe judgment of the Supreme Court of Georgia.
This Court has jurisdiction under 28 U.S.C.
1257 because the judgment of the Supreme Court of
Georgia interpreted the United States Constitution
to invalidate a statute of the state of Georgia, and by
implication similar statutes in other states, and
because the Georgia Supreme Courts judgment
negated rights of Georgia citizens specially set up
under the United States Constitution.
STATUTORY AND CONSTITUTIONAL
PROVISIONS INVOLVED
The relevant constitutional provisions
involved are Article II 1, and the First and
Fourteenth Amendments, which are reproduced at
App. 23a. The relevant statutory provisions involved
are O.C.G.A. 21-2-15 and 21-2-5, which are
reproduced at App. 24a-27a.
STATEMENT OF THE CASE
This is the first case to reach this Court that
substantively addresses the definition of natural
born citizen as that term is used in Article II of the
U.S. Constitution. The Georgia Administrative Court
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and Secretary of State properly denied all attempts
to dismiss the instant case on procedural grounds,
leaving a clean ruling on the legal question.
The petitioners challenge in Georgia State
Court was based upon an uncontested fact: that therespondents father was not a U.S. citizen; and upon
the legal conclusion that a person must have two
U.S. citizen parents to be a natural born citizen
under Article II of the U.S. Constitution.
The Georgia Office of State Administrative
Hearings and Secretary of State ruled that any
person born on U.S. soil is a natural born citizen as
that term is use in Article II of the U.S. Constitution,
regardless of the citizenship of the persons parents.
The Georgia Superior Court dismissed an
appeal by erroneously deciding that the Georgia
statute under which the petitioners challenged
candidate Obamas eligibility, violated the
Democratic Partys right to freedom of association.
The Superior Court ruled that the Georgia statute
was, therefore, inapplicable to Presidential primary
elections. This argument had been raised and
rejected by the Georgia Office of Administrative
Hearings and the Georgia Secretary of State.
The Georgia statute at issue explicitly states
that it is applicable to any general or special
primary to nominate candidates for state, local, and
federal office. This is why the Georgia
Administrative Court and Secretary of State applied
the statute to the states Presidential primary
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election. The Superior Courts ruling, therefore,
invalidated a significant portion of Georgias law on
grounds that it violates the U.S. Constitution.
The Georgia Supreme Court refused review,
adopting the ruling of the Georgia Superior Court.
Together these rulings leave this Court with
an opportunity to confirm state authority over
Presidential primary elections, and to confirm its
definition of natural born citizen under Article II of
the Constitution.
REASONS FOR GRANTING THE PETITION
Since 2007 hundreds of lawsuits have beenlitigated challenging candidate Obamas
constitutional eligibility to hold office. As of the filing
of this petition current Presidential candidate Mitt
Romney may name Marco Rubio as a Vice
Presidential running mate. Like candidate Obama,
at least one of Mr. Rubios parents was not a U.S.
citizen when Mr. Rubio was born. Regardless of
whether Mr. Rubio turns out to be the next VP
candidate, this issue is practically certain to arise
again. When it does it will certainly result inhundreds more lawsuits, filed in courts across the
country. Regardless of which end of the political
spectrum the next candidate with a non-U.S. citizen
parents may be on, his or her political opponents are
virtually certain to raise this issue again.
This Courts ruling in the instant case could
decisively confirm the definition of natural born
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citizen as that term is used in Article II. Such a
decision would clear hundreds of cases from court
dockets over the next few years.
In addition, the Georgia Courts ruling turns
freedom to associate precedent on its head,expanding a political partys legitimate right to
exclude certain individuals into a partys absolute
authority to dictate to states regarding who will
appear on state election ballots. This ruling negates
a significant portion of Georgias election code. If
applied to other states this precedent would
represent a revolutionary shift in power between
states and political parties, negating state authority
over elections as established in Article II, Section 1 of
the U.S. Constitution.
The Georgia rulings challenged here
dangerously expand power for political parties, deny
constitutional state authority over elections,
misapply this Courts freedom to associate precedent,
ignore this Courts precedent in favor of dicta, ignore
venerable rules of constitutional construction, ignore
any difference between the legally distinguishable
terms citizen and natural born citizen, and
erroneously established that all persons born on U.S.
soil are natural born citizens without regard to thecitizenship of their parents. Each one of these errors
will be compounded by courts across the country if
they are not corrected by this Court.
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I. Question 1: Does the Right to AssociateForce States to Accept Any Candidate
from Political Parties for Presentation on
State Primary Ballots When Such a
Candidate Does not Meet Minimum Legal
Qualifications for the Office Sought,Thereby Negating State Election Laws
and State Control of Elections?
Article II, section 1 of the United States
Constitution states: Each state shall appoint, in
such manner as the legislature thereof may direct, a
number of electors to the electoral college for
election of the President of the United States. U.S.
Const. Art. II 1.
Georgias legislature has determined that it is
in the best interest of the citizens of Georgia to
screen candidates for minimum legal qualifications
prior to placement on its primary ballots:
Every candidate for federal and
state officeshall meet the
constitutional and statutory
qualifications for holding the office
being sought. O.C.G.A. 21-2-5.
The fact that the Georgia Legislature intended
this section to apply to Presidential Primaries is
made explicit by O.C.G.A. 21-2-15:
This chapter shall apply to any
general or special election in this state
to fill any federal, state, county, or
municipal office, to any general or
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special primary to nominate candidates
for any such office, and to any federal,
state, county, or municipal election or
primary for any other purpose
whatsoever, unless otherwise provided.
In the instant case the Georgia Superior and
Supreme Courts disagreed with the Georgia
Administrative Court and Secretary of State, the
States high Court holding that application of 21-2-5
to Presidential primaries would violate a political
parties right to freely associate.
The Georgia Supreme Courts conclusion is not
supported by any precedent, invalidates Georgia
election code, and would imply that election codes
from several other states are similarly
unconstitutional. Leaving the Georgia Courts ruling
in place would threaten to negate all states control
over Presidential primary elections, leaving political
parties with absolute power over state Presidential
primary elections. Such a result runs contrary to
Article II, section 1. SeeU.S. Const. Art. II 1 (Each
state shall appoint, in such manner as the legislature
thereof may direct, a number of electors)(emphasis
added).
The Georgia Courts ruling is also unnecessary
because Article II and the First Amendment are in
harmony. State control over the election processes
simply does not violate the right of political parties to
determine who will and will not be accepted as
members of those organizations. As a result, no
precedent interpreting the right to associate supports
the Georgia Courts ruling.
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The right to associate has been interpreted to
allow private groups to determine who will and will
not be members of the group. Democratic Party of
U.S. v. Wisconsin, 450 U.S. 107 (1981); Duke v.
Cleland, 954 F.2d 1526 (11th Cir. 1992); Belluso v.Poythress, 485 F.Supp. 904 (N.D.Ga. 1980). However,
no court has extended this right beyond the confines
of the private organization. A party can determine
who it will include as members. That party can also
determine which of those members will be its
candidates. However, nothing in the Constitution or
precedent forces a State to accept a partys selection
of candidates for appearance on a ballot.2
Several right-to-associate cases did involve
candidates exclusion from ballots. See Democratic
Party of U.S. v. Wisconsin, 450 U.S. 107 (1981);Duke
v. Cleland, 954 F.2d 1526 (11th Cir. 1992);Belluso v.
Poythress, 485 F.Supp. 904 (N.D.Ga. 1980). However,
all of these cases are exactly opposite to the situation
presented in the Georgia litigation. All of the above
precedent involved political parties excluding a
candidate because the party did not want to be
associated with the candidate. In every case cited,
the candidate sued the party or state for inclusion on
the ballot after being excluded. The courts upheld theparties right to exclude individuals from
membership in their parties. This does not, however,
create a right for the party to dictate to states.
2 While right-to-associate precedent has negated some states
restrictive laws for recognizing political parties, none of these
precedent have forced states to accept all candidates for
appearance on ballots without any screening of such candidates.
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There are no cases prior to the instant
litigation where a political partys decision to support
a candidate created a Constitutional right to force a
State to accept that decision. Such precedent would
place the political parties authority above that of the
state. This is why no such precedent exists.
It is true that some states lack election codes
authorizing a state official to screen candidate
selections received from political parties. In these
states political parties have essentially unfettered
authority to determine which candidates appear on
ballots. However, these instances represent decisions
of the states legislatures to not screen candidates. It
is the states right to decide how to administer its
elections. See U.S. Const. Art. II 1. The fact that
some states have decided to not protect their citizens
from unqualified candidates does not mean that
other states do not have the right to screen
candidates. It simply means that some states have
left the screening to the political parties.
Right-to-associate precedent simply does not
prevent Georgias Legislature from protecting its
citizens in this manner because the right to associate
easily coexists with the States right to determine the
manner of choosing its Presidential electors. Georgiacode does not interfere with the autonomy of any
political partys internal decision making because it
does not prohibit the parties from submitting any
name to the Georgia Secretary of State for inclusion
in the Presidential primary. The political parties are
free to submit Saddam Hussein or Mickey Mouse as
their next Presidential candidate. However, Georgia
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is not required to accept such submissions and waste
taxpayer money on ballots for such candidates.
After the Georgia Courts ruling, the political
parties could choose to list former Presidents George
Bush and Bill Clinton as candidates for thePresidential primary, despite the fact that both
President Bush and President Clinton are
disqualified to run for that office again by the 22nd
Amendment to the U.S. Constitution. Upon such
listing the State of Georgia would have no choice but
to place these candidates names on its ballots. This
result demonstrates the error of the Georgia Courts
holding. Contrary to the Georgia Courts holding, the
political parties simply do not have unfettered
dictatorial authority over the state of Georgia.
Georgia code does not prevent the political
parties from submitting any name. Instead the code
simply determines what the State does with a partys
list of candidates after the party has forwarded its
list to the State. See O.C.G.A. 21-2 et seq. This code
does nothing to prevent any political party from
excluding, or including, any person they choose to
exclude or include. Nor does it prevent a party from
choosing candidates to submit, in the partys sole
discretion. Georgias code simply exercises theStates right to administer elections in a manner that
best serves the citizens of the State.
In the instant case Georgias Election code
does nothing to infringe on the Democratic Party of
Georgias right of association because the Party can
and did accept the respondent into its organization.
The Party can and did include the respondent in the
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Partys list of candidates. The Partys rights,
however, end there. Its rights cannot force the State
to place the respondents name on a ballot after the
State determines that the respondent is obviously
not qualified to hold the office sought. 21-2-5. The
rights of the Party and of the State simply do notconflict.
The Georgia Courts holding logically requires
a conclusion that no state can preclude any candidate
from any primary ballot for any reason without
violating a political partys right to freely associate.
Since many candidates have been disqualified from
primary ballots for lack of qualification to hold the
office sought, we can safely conclude that the Georgia
Courts holding is a gross misapplication of the right
to associate.
In order to protect the harmony between
Article II and the First Amendment, and to protect
the right of all states to control their elections, the
petitioners respectfully request that this Court grant
the instant petition.
II. Question 2: Are All Individuals Born onU.S. Soil Article II natural born
citizens, Regardless of the Citizenship oftheir Parents?
The instant litigation challenged candidate
Obamas Constitutional eligibility to hold the office of
President upon grounds that his father was not a
U.S. citizen at the time candidate Obama was born.
App.16a-17a. Petitioners cited this Courts definition
of natural born citizen, as that term is used in
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Article II of the Constitution, from the holding of
Minor v. Happersett. 88 U.S. 162, 167-8 (1875).
In response to this challenge the Georgia
Secretary of State and Office of State Administrative
Hearings reached the legal conclusion that personsborn within the borders of the United States are
natural born citizens for Article II, Section 1
purposes, regardless of the citizenship of their
parents. App. 21a.
The Georgia Secretary of States legal
conclusion runs contrary to venerable rules of
Constitutional construction. It relies heavily upon an
Indiana State court that had already admitted it
lacked jurisdiction to reach the Article II issue. Most
importantly, it rests upon dicta that would negate
this Courts holding from Minor v. Happersett.
The Minor Courts definition of natural-born citizen
is binding precedent because the Courts definition
was necessary to reach its holding. 88 U.S. 162. The
Minor Courts definition of natural-born citizen,
therefore, has not been abrogated by the dicta from
Wong Kim Ark (WKA) or any other subsequent
Supreme Court precedent. See 169 U.S. 649 (1898).
Any rulings from other courts are simply incorrect.Unless and until this Court revisits this issue, the
Minor Courts definition is binding.
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A. The Minor Court Confirmed theDefinition of Article II-Natural Born
Citizen in Order to Reach its Holding
In Minor v. Happersett the United States
Supreme Court was presented the question: Does the14th Amendment grant all citizens the right to vote?
88 U.S. 162. Minor, a woman living in Missouri,
challenged that states constitutional prohibition
against women voting. The Court held that women
could be citizens before ratification of the 14th
Amendment, but that the 14th Amendment created
no new privileges or immunities.
To reach its holding the Minor Court defined
the term natural born citizen. 88 U.S. at 167. It
established that,
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. Id.
It is clear that the Minor Court was referringto the term natural born citizen, as it appears in
Article II of the Constitution because, in the
paragraph preceding the definition quoted here, that
Court quoted the Article II requirement that the
President must be a natural born citizen.
The Minor Courts definition of natural born
citizen is immediately followed by a statement that
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there have been doubts about the broader class of
people identified as citizens. Id. However, this
statement is immediately followed by the
clarification that there have never been doubts as
to the narrower class of natural born citizens. Id.
This understanding of the Minor Courts statementis supported by its extensive discussion of the
broader term citizen at the beginning of the Courts
opinion. Id. at 166. The Court concludes its
discussion of the term citizen by stating, When
used in this sense it is understood as conveying the
idea of membership of a nation, and nothing more.
Id. The Court, therefore, clearly established that the
term citizen was to be understood to be very broad.
With this in mind, the Minor Courts statement is
unambiguous: it established two distinct classes of
people, citizens and natural born citizens; citizen is
a broad term that is inclusive of all natural born
citizens, and others. Id. All natural born citizens are
citizens, but not all citizens are natural born citizens;
as to the outer limits of the term citizen there are
doubts; and as to the definition of natural born
citizen there have never been doubts. Id.
B. Precedential Status of the MinorCourts Definition of Natural Born
Citizen
In order to reach its holding, the Minor Court
first had to establish that Mrs. Minor was a citizen.
It explicitly did so by determining that she was a
natural born citizen: 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
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jurisdiction are themselves citizens. Id. at 167. The
definition the Court is using here is the Courts own
definition of natural-born citizen from earlier in the
same paragraph. Because both of Mrs. Minors
parents were U.S. citizens at the time she was born,
and she was born in the U.S., she was a natural borncitizen. Because all natural born citizens are also
within the broader category citizen, Mrs. Minor
was a citizen. This is why the Court did not need to
resolve doubts about the outer limits of the term
citizen. Mrs. Minor was a citizen because she was
clearly within the narrower category of natural-born
citizen.
The Minor Courts decision to establish that
Mrs. Minor was a citizen because she was a natural
born citizen followed the well-established doctrine of
judicial restraint. Judicial restraint required the
Minor Court to avoid interpreting the citizenship
clause of the 14th Amendment if the circumstances
presented in the case at hand did not require the
Court to construe the 14th amendments citizenship
clause in order to reach its holding. The facts
presented did not require such an interpretation
because the definition of natural born citizen was
well-established and Mrs. Minor was a natural born
citizen. So, the Court did not reach the 14th
amendments citizenship clause. But this restraint
did require the Court to conclude that Mrs. Minor
was a citizen via its definition of natural-born citizen
and its conclusion that all natural-born citizens are
within the broader category of citizens. This is why
it made the statement For the purposes of this case
it is not necessary to solve these doubts. It is
sufficient for everything we have now to consider
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that all children born of citizen parents within the
jurisdiction are themselves citizens. Id. at 168. In
other words, the Minor Courts definition of
natural born citizen was pivotal to reaching
its holding.3
Because the Minor Courts definition of
natural born citizen was pivotal to reaching its
holding, the Courts definition is part of its holding
and is, therefore, also precedent. SeeBlacks Law
Dictionary 737 (Bryan A. Garner ed., 7th ed., West
1999) (holding, n. 1. A courts determination of a
matter pivotal to its decision); (see also Id. at 1195
defining precedent and quotingJames Parker Hall,
American Law and Procedure xlviii (1952); see also
Blacks Law Dictionary at 465, distinguishing
dictum gratis: A courts discussion of points or
questions not raised by the record or its suggestion of
rules not applicable in the case at bar.).
C. TheMinorCourts Discussion of OtherCategories of Citizens Confirms that
The Courts Definition of Natural Born
Citizen is Part of its Holding
After establishing that Mrs. Minor was a
citizen because she was a natural born citizen, theCourt then discussed several other types of
citizenship as general examples of its conclusion that
3 Courts using judicial restraint are deciding to rely upon well-established
law rather than delve into new and more debatable areas of law. The fact
that theMinorCourt deferred to the previously well-established definition
of natural born citizen proves that this term was beyond debate at the
time of theMinorCourts opinion. That is why the Court states that there
have never been doubts as to the definition of Article II natural born
citizen.
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women could be citizens. However, it then returned
to the specific case of Mrs. Minor, concluding: The
fourteenth amendment did not affect the citizenship
of women any more than it did of men. In this
particular, therefore, the rights of Mrs. Minor do not
depend upon the amendment. She has always been acitizen from her birth, and entitled to all the
privileges and immunities of citizenship. Id. at 170.
This discussion not only shows that the Minor
Court explicitly distinguished the terms citizen and
natural born citizen, it also shows that the Court
determined that Minor was a citizen because she was
a natural born citizen. Because citizen is a much
broader term, but includes the narrower term
natural born citizen, Minor was a citizen because she
was a natural born citizen.
D.Georgias Ruling Violates The MinorCourts Holding that the 14th
Amendment Did Not Add to the
Privileges and Immunities of a
Citizen
The Georgia Secretary of States decision also
runs contrary to the MinorCourts holding that The
amendment did not add to the privileges andimmunities of a citizen. Id. at 171. The Minor Court
established that if an individual did not have the
right to vote before the 14th Amendment, then that
citizen did not have the right to vote after the
Amendment. Id. It is clear from this holding that if a
person was not qualified to hold the office of
President under Article II before the 14th
Amendment, then he or she was not qualified to hold
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the office of President after the Amendment. Id. In
other words, the holding of the Minor Court explicitly
established that the 14th Amendment did not change
the definition of natural born citizen under Article II.
E. This Courts Wong Kim Ark HoldingDoes not Conflict withMinorand Does
Not Support the Georgia Ruling
The Supreme Courts holding in Wong Kim
Ark(WKA) did not alter or negate the definition of
natural born citizen as established by the Minor
Court. Compare United States v. Wong Kim Ark, 169
U.S. 649 (1898) with Minor, 88 U.S. 162. The holding
of WKA answered the narrow question that was
avoided by the Minor Court: namely construction of
the citizenship clause of the 14th Amendment.
A review of the holding from WKA confirms
this conclusion:
[T]he single question stated at
the beginning of this opinion, namely,
whether a child born in the United
States, of parents of Chinese descent,
who at the time of his birth are subjectsof the emperor of China, but have a
permanent domicile and residence in
the United States, and are there
carrying on business, and are not
employed in any diplomatic or official
capacity under the emperor of China,
becomes at the time of his birth a citizen
of the United States by virtue of the
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first clause of the fourteenth
amendment of the Constitution: All
persons born or naturalized in the
United States, and subject to the
jurisdiction thereof, are citizens of the
United States and of the state whereinthey reside. For the reasons above
stated, this court is of the opinion that
the question must be answered in the
affirmative. 169 U.S. at 705 (emphasis
added).
The WKA holding does not contain the term
natural born nor does it mention Article II.
This makes sense because the WKA Court did
not need to define the term natural born citizen in
order to reach its holding. Had Mr. Ark been a
natural born citizen as defined by the Minor Court,
then the WKA case would never have been filed
because Mr. Arks status as a citizen would never
have been in question. Had Mr. Ark been a natural
born citizen the WKA Court would not have had to
resort to the 14th Amendment in order to find that he
was a citizen. Because Mr. Ark was not a natural
born citizen, the WKA court had no reason to
construe the term natural born citizen in order toanswer the question: Was Mr. Ark a citizen under
the 14th Amendment? Therefore, any discussion
within the WKA opinion that could possibly be
construed to alter the Article II term natural born
citizen, was unnecessary to reach the WKA holding
and was, by definition, dicta. See Blacks Law
Dictionary 465 (Bryan A. Garner e., 7th ed., West
1999)(definingDictum Gratis).
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Rather than construing the definition of the
term natural born citizen under Article II, the
WKA Court was construing the term citizen under
the 14th Amendment. Regardless of the answer to the
question answered by the WKA Court, it doesnothing to change the requirements for the office of
President.
To conclude that the WKA court altered the
definition of natural born citizen under Article II
would require a conclusion that dicta alters
established precedent. This is simply not the rule.
Dicta can be persuasive. Where the reasoning in
dicta is logical and well supported, and where it does
not conflict with precedent, it can be followed at the
discretion of other courts. However, where dicta
directly conflicts with precedent it cannot be followed
by lower courts.
Also, to conclude that the WKA Court altered
the definition of natural born citizen under Article II
would also require a conclusion that the WKA court
intended to overturn the Minor holding that the 14th
amendment did not create any new privileges or
immunities. Yet the WKA Court never made any
such assertion, nor has any decision of this Courtsince WKA.
Nothing in the holding of Wong Kim Ark
contradicts anything in Minor v. Happersett. Reading
these two opinions with the distinction between
citizen and natural born citizen in mind, and with
the definitions of holding, precedent, and dicta
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in mind, confirms that the Minor and Wong Kim Ark
opinions do not conflict.
Common sense and rules of construction tell
us that if two laws, constitutional provisions, or court
opinions can be read to not conflict, such aninterpretation is more likely correct than an
interpretation that requires conflict. A proper
reading of these two opinions reveals that they
conform to each other and complement each other.
This reading of Minor and WKA respects the
foundational principals of constitutional construction
and legal interpretation because these cases were
answering different questions regarding different
aspects of the Constitution. This reading of Minor
and WKA leave these two opinions in harmony.
F.Marbury v. Madisons Rule ofConstitutional Construction Supports
Petitioners Harmonized Readings of
Minorand Won Kim Ark
The Georgia Secretary of States decision
concludes that any person born within the United
States, regardless of the citizenship or legal status of
their parents, is a natural born citizen underArticle II of the United States Constitution. This
conclusion violates venerable rules of Constitutional
Construction established by this Court. In Marbury
v. Madison this Court explained, It cannot be
presumed that any clause in the Constitution is
intended to be without effect; and therefore such a
construction is inadmissible. 5 U.S. 137, 174 (1805).
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This rule is still in effect and a similar rule is
used for statutory construction: When there are two
acts upon the same subject, the rule is to give effect
to both if possibleThe intention of the legislature to
repeal must be clear and manifest. United States v.
Borden Co., 308 U.S. 188, 198 (1939). See also,Morton v. Mancari, 417 U.S. 535, 551 (1974); United
States v. Tynen, 78 U.S. 88 (1870); Hendersons
Tobacco, 78 U.S. 652 657 (1870); General Motors
Acceptance Corp. v. United States, 286 U.S. 49, 61
(1932); Wood v. United States, 41 U.S. 342, 362-63
(1842).
These rules of construction were well-
established and well-known at the time the 14th
Amendment was drafted. Had the drafters of the 14th
Amendment intended that Amendment to alter the
Article II definition of natural born citizen, they
would have clearly stated so. Yet the term natural
born citizen is not found anywhere within the 14th
Amendment. The Amendment also makes no
reference to Article II.
Yet the Georgia Secretary of States ruling in
the instant case, and reading of the WKA opinion,
leaves Article IIs natural born citizen clause with
no independent meaning separate from the meaningof citizen under the 14th Amendment. Citizen
simply does not have the same legal meaning as the
term natural born citizen. Article II uses the term
natural born citizen in order to distinguish this type
of citizen from other citizens. Yet the Secretarys
holding completely negates this distinction.
Therefore, the Secretarys holding violates venerable
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rules of Constitutional construction. Marbury, 5 U.S.
at 174.
The Secretary also reads the words natural
born into the very explicit holding of the Supreme
Courts Wong Kim Ark decision. 169 U.S. 649 (1898).Yet neither the 14th Amendment nor the holding of
Wong Kim Ark include the term natural born. The
Wong Kim Ark court was determining the meaning of
the broader term citizen under the 14th
Amendment. Id. at 705. Its holding was highly fact-
specific. Id. Its holding neither mentioned Article II
nor the term natural born. Id.
The Georgia Secretary of States conclusion
that all persons born on U.S. soil are Article II-
natural born citizens, regardless of their parents
citizenship, violates every rule of legal
interpretation.
G.Indiana State Court LackedJurisdiction to Reach the Article II
Issue
The Georgia Secretary of States decision relies
heavily upon an Indiana State Appellate Court
opinion. SeeApp.17a-22a. citingAnkeny v. Governor,916 N.E.2d 678 (Ind. Ct. App. 2009). However, a
cursory reading of the Ankeny opinion should lead
any court to immediately recognize the limited value
of that opinion.
Ankeny was a challenge brought by pro-se
litigants in Indiana against that states Governor. Id.
at 679. While litigation by pro-se parties certainly
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does not, by itself, negate the value of an opinion, it
certainly should raise some concerns. Most pro-se
litigants cannot be expected to present courts with
fully researched and briefed arguments in support of
their constitutional assertions. Addtionally, the
Defendant inAnkeny was a sitting Governor with allthe resources of the state at his disposal. Id. This
picture explains the very one-sided presentation of
the issues and the ultimate result inAnkeny.
Much more striking, however, is the fact that
the Ankeny Court admitted that the plaintiff lacked
standing. Id. at 684. Since the plaintiff lacked
standing, the Ankeny Court lacked jurisdiction to
reach any substantive issue presented. Yet after
reaching this conclusive finding, the Ankeny court
took it upon itself to construe Article II of the U.S.Constitution. While a court may use alternative
means to reach a holding, it should not construe the
U.S. Constitution to do so. Lyng v. Northwest Indian
Cemetery Protective Association, 485 U.S. 439, 445-46
(1988) (A fundamental and longstanding principle of
judicial restraint requires that courts avoid reaching
constitutional questions in advance of the necessity
of deciding them.). Judicial restraint requires all
courts to avoid construing any clause of the
Constitution if avoiding such construction is at allpossible. Id. By pushing forward to give its opinion
on the meaning of Article II, after ruling that it
lacked jurisdiction in the case, the Ankeny Court
ignored judicial restraint, ignored rules of
constitutional construction, ignored direct precedent
from this Court, and ignored the Article III
constitutional limits on its own authority.
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In other words, theAnkenyCourts decision to
reach the constitutional question demonstrates that
Courts failure to understand the most basic
doctrines applied by this Court when construing the
Constitution. With this fact in mind, the Ankeny
Courts opinion regarding the meaning of Article IIand the 14th Amendment should be avoided at all
costs by any other court.
Yet the Georgia Administrative Court, Georgia
Secretary of State, and other courts across the
country are citing Ankeny as decisive on the natural
born citizen issue.
CONCLUSION
For the reasons discussed above the
petitioners respectfully request a writ of certiorari be
granted.
Respectfully submitted,
Van R. Irion
Liberty Legal Foundation
9040 Executive Park Drive, Ste.200
Knoxville, TN 37923
(423) 208-9953
J. Mark Hatfield, Esq.
Hatfield & Hatfield, P.C.
201 Albany Avenue
P.O. Box 1361
Waycross, Georgia 31502
(912) 283-3820
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1a
APPENDIX
Part A
Supreme Court of Georgia Orders Denying
Review, April 4, 2012
SUPREME COURT OF GEORGIA
Case No. S12D1059
Atlanta, April 04, 2012
The Honorable Supreme Court met pursuant
to adjournment.
The following order was passed.
DAVID P. WELDON v. BARACK OBAMA
From the Superior Court of Fulton County.
Upon consideration of the Application for
Discretionary Appeal, it is ordered that it be hereby
denied. All the Justices concur.
Trial Court Case No. 2012CV211537
SUPREME COURT OF THE STATE OF GEORGIA
Clerk's Office, Atlanta
I certify that the above is a true extract from
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said
court hereto affixed the day and year last above
written.
Lia C. Fulton, Chief Deputy Clerk
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SUPREME COURT OF GEORGIA
Case No. S12D1077
Atlanta, April 04, 2012
The Honorable Supreme Court met pursuant
to adjournment.
The following order was passed.
KEVIN RICHARD POWELL v. BARACK OBAMA
From the Superior Court of Fulton County.
Upon consideration of the Application for
Discretionary Appeal, it is ordered that it be hereby
denied. All the Justices concur.
Trial Court Case No. 2012CV211528
SUPREME COURT OF THE STATE OF GEORGIA
Clerk's Office, Atlanta
I certify that the above is a true extract from
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of saidcourt hereto affixed the day and year last above
written.
Lia C. Fulton, Chief Deputy Clerk
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SUPREME COURT OF GEORGIA
Case No. S12D1076
Atlanta, April 04, 2012
The Honorable Supreme Court met pursuant
to adjournment.
The following order was passed.
CARL SWENSSON v. BARACK OBAMA
From the Superior Court of Fulton County.
Upon consideration of the Application for
Discretionary Appeal, it is ordered that it be hereby
denied. All the Justices concur.
Trial Court Case No. 2012CV211527
SUPREME COURT OF THE STATE OF GEORGIA
Clerk's Office, Atlanta
I certify that the above is a true extract from
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of saidcourt hereto affixed the day and year last above
written.
Lia C. Fulton, Chief Deputy Clerk
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4a
APPENDIX
Part B
Superior Court of Fulton County, State of
Georgia, Order Granting Defendant Obamas
Motion to Dismiss Appeal, March 2, 2012
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
DAVID FARRAR, LEAH LAX,
CODY ROBERT JUDY,
LAURIE ROTH,
Petitioners,
v. CIVIL ACTION
FILE NO.2012CV211398
BARACK OBAMA and
SECRETARY OF STATE
Respondents.
CARL SWENSSON,
Petitioner,
v. CIVIL ACTION
FILE NO.2012CV211527
BARACK OBAMA,
Respondent.
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KEVIN RICHARD POWELL,
Petitioner,
v. CIVIL ACTION
FILE NO.2012CV211528
BARACK OBAMA,
Respondent.
DAVID P. WELDEN,
Petitioner,
v. CIVIL ACTION
FILE NO.2012CV211537
BARACK OBAMA,
Respondent.
ORDER GRANTING RESPONDENT BARACKOBAMAS MOTION(S) TO DISMISS
The above-captioned actions are before the
Court on the Petitioner(s) for Judicial Review of
Petitioners David Farrar, et al., Carl Swensson,
Kevin Richard Powell, and David P. Welden, which
were filed in this Court on February 13, 2012, and
February 15, 2012, respectively. Although initially
assigned to four (4) different Superior Court Judges,
the matters were transferred to the Honorable ChiefJudge Cynthia D. Wright, to whom the first-filed
case was assigned (Farrar, et al. v. Obama, et al.,
Civil Action File No. 2012CV11398), because each is
an appeal of the same decision issued on February 3,
2012 by Administrative Law Judge Michael M.
Malihi in the Office of State Administrative Hearings
and thereafter adopted by the Secretary of State.
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6a
Presently before the Court is the Motion to
Dismiss of Respondent Barack Obama, filed in each
of the above-referenced actions of February 27, 2012.
The Motion(s) to Dismiss are identical in form and
substance and will, therefore, be addressed by the
Court in one consolidated Order to be applied in eachcase. Now, having considered the Motion(s) to
Dismiss, the other pleadings of record, and
applicable Georgia law, the Court finds as follows:
Petitioners filed their Appeal/Petition for
Judicial Review of the Secretary of States decision in
this Court pursuant to O.C.G.A. 21-2-5(e), which
provides as follows:
The elector filing the challenge or thecandidate challenged shall have the
right to appeal the decision of the
Secretary of State by filing a petition in
the Superior Court of Fulton County
within ten days after the entry of the
final decision by the Secretary of State.
The filing of the petition shall not itself
stay the decision of the Secretary of
State; however, the reviewing court may
order a stay upon appropriate terms for
good cause shown. As soon as possibleafter service of the petition, the
Secretary of State shall transmit the
original or a certified copy of the entire
record of the proceedings under review
to the reviewing court. The review shall
be conducted by the court without a jury
and shall be confined to the record.
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7a
Petitioners allege that Respondent Barack
Obama is not a natural born citizen4 and, thus, is
not qualified for candidacy in Georgias 2012
Presidential Primary. Despite its application in the
court below, this Court does not believe that
O.C.G.A. 21-2-5 applies in this case because thechallenge at issue involves the Presidential
Preference Primary, which by its terms, is an
opportunity for electors to express their preference
for one person to be a candidate for nomination.
O.C.G.A. 21-2-191. The Presidential Preference
Primary apportions delegates, but neither elects nor
nominates candidates for the Presidency. Therefore,
because Respondent Barack Obama is not yet a
candidate for the Presidential election in question
and because the Presidential Preference Primary is
not an election within the meaning of O.C.G.A. 21-
2-1, et seq., 21-2-5 does not apply. See 21-2-2(5) and
21-2-5.
Moreover, it is well established in Georgia as
elsewhere in the United States that voters vote on
presidential electors, rather than voting directly for
a candidate, when voting for the Office of President
of the United States. O.C.G.A 21-2-172. The
political parties candidates for President are
determined by convention of the political party. SeeO.C.G.A. 21-2-191 to 21-2-200. In the case of a
democratic candidate for President, the Democratic
Party of Georgia has the sole discretion to determine
the qualifications of potential candidates and the
name(s) to be included on its Presidential Preference
4Petitioners claim is based, in part, on a contention that at the time of his
birth, Respondents father was not a citizen of the United States.
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Primary ballot. O.C.G.A. 21-2-193; see Duke v.
Cleland, 954 F.2d 1523 (11th Cir. 1992); Duke v.
Cleland, 884 F.Supp. 511, 515-16 (N.D.Ga. 1995).
The Secretary of State is prohibited by the
Fourteenth Amendment of the United StatesConstitution and Georgia statutory law from
infringing on the associational rights of the electors.
O.C.G.A. 21-2-172 to 21-2-200; Duke v. Cleland,
884 F.Supp. at 515-16 (N.D.Ga. 1995). Even if the
Secretary of State believes that a challengers claims
are valid, the Secretary of State may not interfere
with a political partys internal decision-making. Id.
Based upon Georgia law and governing
precedent, the Court finds it has no authority toexercise jurisdiction over the Democratic Party of
Georgias selection of the name(s) to be included in
the Presidential Preference Primary or to examine
the qualifications of those individuals. Therefore,
these actions should be DISMISSED in accordance
with O.C.G.A. 9-11-12(b).
Additionally, even if the Court had determined
that O.C.G.A. 21-2-5 applied to these matters and
provided the Court with appellate jurisdiction oversame, the Court finds that Petitioners have failed
entirely to perfect personal service upon
Respondent(s) as required by O.C.G.A. 21-2-5(e) and
O.C.G.A. 9-11-4. See Bible v. Bible, 259 Ga. 418, 418
(1989).
Therefore, IT IS HEREBY ORDERED AND
ADJUGED that Respondent Barack Obamas
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Motion(s) to Dismiss in the above matters are
GRANTED, and the above actions are hereby
DISMISSED.
SO ORDERED this the 2nd day of March 2012.
CYNTHIA D. WRIGHT, Chief Judge
Fulton County Superior Court
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10a
APPENDIX
Part C
Final Decision of the Georgia Secretary of
State, February 7, 2012, Adopting the Decision
of the Georgia Office of Administrative
Hearings
IN THE OFFICE OF THE SECRETARY OF STATE
STATE OF GEORGIA
DAVID FARRAR, LEAH LAX,
CODY ROBERT JUDY,
LAURIE ROTH,
Petitioners,
v. Docket Number: OSAH-SECSTATE-CE-1215136-
60-MALIHI
BARACK OBAMA
Respondent.
DAVID P. WELDEN,
Petitioner,
v. Docket Number: OSAH-
SECSTATE-CE-1215137-
60-MALIHIBARACK OBAMA,
Respondent.
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CARL SWENSSON,
Petitioner,
v. Docket Number: OSAH-
SECSTATE-CE-1216218-
60-MALIHI
BARACK OBAMA,
Respondent.
KEVIN RICHARD POWELL,
Petitioner,
v. Docket Number: OSAH-
SECSTATE-CE-1216823-
60-MALIHI
BARACK OBAMA,
Respondent.
FINAL DECISION5
Petitioners filed candidate challenges
pursuant to O.C.G.A. 21-2-5(b) contending that
Respondent does not meet the State of Georgias
eligibility requirements for his name to be listed on
the 2012 Presidential Preference Primary ballot.
Judge Michael Malihi, Administrative Law Judge
(ALJ) for the Office of State Administrative
Hearings, held a hearing on each candidate challenge
on January 26, 2012 and entered an initial decision
for the above-captioned cases on February 3, 2012.
5Judge Michael Malihi previously consolidated the above-captioned
candidate challenges for the purpose of issuing his initial decision. Those
candidate challenges remain consolidated for the purpose of issuing this
Final Decision.
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12a
The Secretary of State formally adopts the initial
decision of the ALJ into this final decision.
Therefore, IT IS HEREBY DECIDED THAT
the above-captioned challenges are DENIED.
SO DECIDED this 7th day of February, 2012.
BRIAN P. KEMP
Georgia Secretary of State
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13a
APPENDIX
Part D
Decision of Georgia Office of State
Administrative Hearings, February 3, 2012,
Ruling All Persons Born on U.S. Soil to be
Article II Natural Born Citizens
OFFICE OF STATE ADMINISTRATIVE
HEARINGS
STATE OF GEORGIA
DAVID FARRAR, LEAH LAX,
CODY ROBERT JUDY,
LAURIE ROTH,
Petitioners,
v. Docket Number: OSAH-SECSTATE-CE-1215136-
60-MALIHI
BARACK OBAMA
Respondent.
DAVID P. WELDEN,
Petitioner,
v. Docket Number: OSAH-
SECSTATE-CE-1215137-60-MALIHI
BARACK OBAMA,
Respondent.
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14a
CARL SWENSSON,
Petitioner,
v. Docket Number: OSAH-
SECSTATE-CE-1216218-
60-MALIHI
BARACK OBAMA,
Respondent.
KEVIN RICHARD POWELL,
Petitioner,
v. Docket Number: OSAH-
SECSTATE-CE-1216823-
60-MALIHI
BARACK OBAMA,
Respondent.
DECISION6
Plaintiffs allege that Defendant President
Barack Obama does not meet Georgia's eligibility
requirements for candidacy in Georgia's 2012
presidential primary election. Georgia law mandates
that candidates meet constitutional and statutory
requirements for the office that they seek. O.C.G.A.
6 This Decision has been consolidated to include the four
challenges to President Obama's candidacy filed by Plaintiffs
David Farrar, et al., David P. Welden, Carl Swensson, and
Kevin Richard Powell. Section I of this Decision applies only to
the case presented by Ms. Taitz on behalf of Mr. Farrar and his
co-plaintiffs, Leah Lax, Cody Judy, Thomas Malaren, and
Laurie Roth, and does not pertain, in any way, to the cases of
Mr. Welden, Mr. Swensson, and Mr. Powell. Section II applies
to all Plaintiffs.
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21-2-5(a). Mr. Obama is a candidate for federal office
who has been certified by the state executive
committee of a political party, and therefore must,
under Georgia Code Section 21-2-5, meet the
constitutional and statutory qualifications for
holding the Office of the President of the UnitedStates. Id. The United States Constitution requires
that a President be a "natural born [c]itizen." U.S.
Const. art. II, 1, cl. 5.
As required by Georgia Law, Secretary of
State Brian Kemp referred Plaintiffs' challenges to
this Court for a hearing. O.C.G.A. 21-2-5(b). A
hearing was held on January 26, 2012. The record
closed on February 1, 2012. Plaintiffs Farrar, Lax,
Judy, Malaren, and Roth and their counsel Orly
Taitz, Plaintiffs Carl Swensson and Kevin Richard
Powell and their counsel J. Mark Hatfield, and
Plaintiff David P. Welden and his counsel Van R.
Irion, all appeared and answered the call of the case.
However, neither Defendant nor his counsel, Michael
Jablonski, appeared or answered. Ordinarily, the
Court would enter a default order against a party
that fails to participate in any stage of a proceeding.
Ga. Comp. R. & Regs. 616-1-2-.30(1) and (5).
Nonetheless, despite the Defendant's failure to
appear, Plaintiffs asked this Court to decide the caseon the merits of their arguments and evidence. The
Court granted Plaintiffs' request.
By deciding this matter on the merits, the
Court in no way condones the conduct or legal
scholarship of Defendant's attorney, Mr. Jablonski.
This Decision is entirely based on the law, as well as
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the evidence and legal arguments presented at the
hearing.
I. Evidentiary Arguments of Plaintiffs Farrar,
et al.
Plaintiffs Farrar, Lax, Judy, Malaren, and
Roth contend that President Barack Obama is not a
natural born citizen. To support this contention,
Plaintiffs assert that Mr. Obama maintains a
fraudulently obtained social security number, a
Hawaiian birth certificate that is a computer-
generated forgery, and that he does not otherwise
possess valid U.S. identification papers. Further,
Plaintiffs submit that Mr. Obama has previously
held Indonesian citizenship, and he did not use his
legal name on his notice of candidacy, which is either
Barry Soetoro or Barack Obama Soebarkah. (Pl.s'
Am. Compl. 3.)
At the hearing, Plaintiffs presented the
testimony of eight witnesses7 and seven exhibits in
support of their position. (Exs. P-1 through P-7.)
When considering the testimony and exhibits, this
Court applies the same rules of evidence that apply
to civil nonjury cases in superior court. Ga. Comp. R.
& Regs. 616-1-2-.18(1)(9). The weight to be given toany evidence shall be determined by the Court based
7 Originally, Ms. Taitz indicated to the Court that she wouldoffer the testimony of seven witnesses. However, during her
closing argument, Ms. Taitz requested to testify. Ms. Taitz was
sworn and began her testimony, but shortly thereafter, the
Court requested that Ms. Taitz step-down and submit any
further testimony in writing.
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upon its reliability and probative value. Ga. Comp. R.
& Regs. 616-1-2.18(10).
The Court finds the testimony of the
witnesses, as well as the exhibits tendered, to be of
little, if any, probative value, and thus whollyinsufficient to support Plaintiffs' allegations.8 Ms.
Taitz attempted to solicit expert testimony from
several of the witnesses without qualifying or
tendering the witnesses as experts. See Stephens v.
State, 219 Ga. App. 881 (1996) (the unqualified
testimony of the witness was not competent
evidence). For example, two of Plaintiffs' witnesses
testified that Mr. Obama's birth certificate was
forged, but neither witness was properly qualified or
tendered as an expert in birth records, forged
documents or document manipulation. Another
witness testified that she has concluded that the
social security number Mr. Obama uses is
fraudulent; however, her investigatory methods and
her sources of information were not properly
presented, and she was never qualified or tendered
as an expert in social security fraud, or fraud
investigations in general. Accordingly, the Court
cannot make an objective threshold determination of
these witnesses' testimony without adequate
knowledge of their qualifications. See Knudsen v.Duffee-Freeman, Inc., 95 Ga. App. 872 (1957) (for the
testimony of an expert witness to be received, his or
her qualifications as such must be first proved).
8The credibility of witnesses is within the sole discretion of the
trier of fact. In non-jury cases that discretion lies with the
judge. See Mustang Transp., Inc. v. W. W. Lowe & Sons, Inc.,
123 Ga. App. 350, 352 (1971).
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None of the testifying witnesses provided
persuasive testimony. Moreover, the Court finds that
none of the written submissions tendered by
Plaintiffs have probative value. Given the
unsatisfactory evidence presented by the Plaintiffs,
the Court concludes that Plaintiffs' claims are notpersuasive.
II. Application of the "Natural Born Citizen"
Requirement
Plaintiffs allege that President Barack Obama
is not a natural born citizen of the United States and,
therefore, is not eligible to run in Georgia's
presidential primary election. As indicated supra, the
United States Constitution states that "[n]o person
except a natural born Citizen . . . shall be eligible for
the Office of the President . . .9 U.S. Const. art. I, 1,
cl. 5.
For the purpose of this section's analysis, the
following facts are considered: 1) Mr. Obama was
born in the United States; 2) Mr. Obama's mother
was a citizen of the United States at the time of his
birth; and 3) Mr. Obama's father was never a United
9 The definition of this clause has been the source of muchdebate. See, e.g., Gordon, Who Can Be President of the United
States: The Unresolved Enigma, 28 Md. L. Rev. 1 (1968); Jill A.
Pryor, Note, The Natural-Born Citizen Clause and Presidential
Eligibility: An Approach for Resolving Two Hundred Years of
Uncertainty, 97 Yale L.J. 881 (1988); Christina S. Lohman,
Presidential Eligibility: The Meaning of the Natural-Born
Citizen Clause, 36 Gonz. L. Rev. 349 (2000); William T. Han,
Beyond Presidential Eligibility: The Natural Born Citizen
Clause as a Source of Birthright Citizenship, 58 Drake L. Rev.
457 (2010).
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States citizen. Plaintiffs contend that, because his
father was not a U.S. citizen at the time of his birth,
Mr. Obama is constitutionally ineligible for the Office
of the President of the United States. The Court does
not agree.
In 2009, the Indiana Court of Appeals
("Indiana Court") addressed facts and issues similar
to those before this Court. Ankeny v. Governor, 916
N.E.2d 678 (Ind. Ct. App. 2009). In Ankeny, the
plaintiffs sought to prevent certification of Mr.
Obama as an eligible candidate for president because
he is not a natural born citizen. Id. at 681. The
plaintiffs argued, as the Plaintiffs argue before this
Court, that "there's a very clear distinction between
a 'citizen of the United States' and a 'natural born
Citizen,' and the difference involves having [two]
parents of U.S. citizenship, owing no foreign
allegiance." Id. at 685. The Indiana Court rejected
the argument that Mr. Obama was ineligible, stating
that children born within the United States are
natural born citizens, regardless of the citizenship of
their parents. Id. at 688. This Court finds the
decision and analysis ofAnkeny persuasive.
The Indiana Court began its analysis by
attempting to ascertain the definition of "naturalborn citizen" because the Constitution does not
define the term. Id. at 685-86; See Minor v.
Happersett, 88 U.S. 162, 167 (1875) ("The
Constitution does not, in words, say who shall be
natural born citizens. Resort must be had elsewhere
to ascertain that"); see also United States v. Wong
Kim Ark, 169 U.S. 649 (1898) (noting that the only
mention of the term "natural born citizen" in the
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Constitution is in Article II, and the term is not
defined in the Constitution).
The Indiana Court first explained that the
U.S. Supreme Court has read the Fourteenth
Amendment and Article II (natural born citizenprovision) in tandem and held that "new citizens may
be born or they may be created by naturalization."
Id. at 685 (citing Minor, 88 U.S. at 167); See U.S.
Const. amend. XIV, 1. ("All persons born or
naturalized in the United States and subject to the
jurisdiction thereof, are citizens of the United States
. . . ."). In Minor, the Court observed 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 thisclass there have been doubts, but never
as to the first. For the purposes of this
case it is not necessary to solve these
doubts. Id. at 167-68.
Plaintiffs ask this Court to read the Supreme
Court's decision in Minor as defining natural born
citizens as only "children born in a country of parents
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who were its citizens." 88 U.S. at 167. However, the
Indiana Court explains that Minor did not define the
term natural born citizen. In deciding whether a
woman was eligible to vote, the Minor Court merely
concluded that children born in a country of parents
who were its citizens would qualify as natural born,and this Court agrees. The Minor Court left open the
issue of whether a child born within the United
States of alien parent(s) is a natural born citizen.
Next, the Indiana Court looked to United
States v. Wong Kim Ark, in which the Supreme Court
analyzed the meaning of the words "citizen of the
United States" in the Fourteenth Amendment and
"natural born citizen of the United States" in Article
II to determine whether a child born in the United
States to parents who, at the time of the child's birth,
were subjects of China "becomes at the time of his
birth a citizen of the United States, by virtue of the
first clause of the fourteenth amendment . . ." Id. at
686 (citing Wong Kim Ark, 169 U.S. at 653). The
Indiana Court determined that the two provisions
"must be interpreted in the light of the common law,
the principles and history of which were familiarly
known to the framers of the constitution." Id. (citing
Wong Kim Ark, 169 U.S. at 654). The Indiana Court
agreed that "[t]he interpretation of the constitutionof the United States is necessarily influenced by the
fact that its provisions are framed in the language of
the English common law, and are to be read in the
light of its history." Id. (citing Wong Kim Ark, 169
U.S. at 655) (internal citation omitted). The Wong
Kim Ark Court extensively examined the common
law of England in its decision and concluded that
Wong Kim Ark, who was born in the United States to
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alien parents, became a citizen of the United States
at the time of his birth. Wong Kim Ark, 169 U.S. at
705.10
10The Wong Kim Ark Court explained:
The fundamental principle of the common law with
regard to English nationality was birth within the allegiance,
also called "ligealty," "obedience," "faith" or "power," of the
King. The principle embraced all persons born within the King's
allegiance and subject to his protection. Such allegiance and
protection were mutual . . . and were not restricted to natural-
born subjects and naturalized subjects, or to those who had
taken an oath of allegiance; but were predicable of aliens in
amity, so long as they were within the kingdom. Children, born
in England, of such aliens, were therefore natural-born
subjects. But the children, born within the realm, of foreignambassadors, or the children of alien enemies, born during and
within their hostile occupation of part of the King's dominions,
were not natural-born subjects, because not born within the
allegiance, the obedience, or the power, or, as would be said at
this day, within the jurisdiction of the King. 169 U.S. at 655.
It thus clearly appears that by the law of England for
the last three centuries, beginning before the settlement of this
country, and continuing to the present day, aliens, while
residing in the dominions possessed by the Crown of England,
were within the allegiance, the obedience, the faith or loyalty,
the protection, the power, the jurisdiction, of the English
Sovereign; and therefore every child born in England of alienparents was a natural-born subject, unless the child of an
ambassador or other diplomatic agent of a foreign State, or of
an alien enemy in hostile occupation of the place where the
child was born. Id. at 658. Further:
Nothing is better settled at the common law than the
doctrine that the children, even of aliens, born in a country,
while the parents are resident there under the protection of the
government, and owing a temporary allegiance thereto, are
subjects by birth. Id. at 660 (quoting Inglis v. Trustees of
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Relying on the language of the Constitution
and the historical reviews and analyses ofMinor and
Wong Kim Ark, the Indiana Court concluded that:
persons born within the borders
of the United States are "natural born
citizens" for Article II, Section 1
purposes, regardless of the citizenship
of their parents. Just as a person born
within the British dominions [was] a
natural-born British subject at the time
of the framing of the U.S. Constitution,
so too were those "born in the allegiance
Sailors' Snug Harbor, 28 U.S. (3 Pet.) 99, 164 (1830) (Story, J.,
concurring)). And:
The first section of the second article of the constitution
uses the language, 'a natural-born citizen.' It thus assumes that
citizenship may be acquired by birth. Undoubtedly, this
language of the constitution was used in reference to that
principle of public law, well understood in this country at the
time of the adoption of the constitution, which referred
citizenship to the place of birth. Id. at 662 (quoting Dred Scott
v. Sanford, 60 U.S. (19 How.) 393, 576 (1856) (Curtis, J.,dissenting)).
Finally:
All persons born in the allegiance of the king are natural-born
subjects, and all persons born in the allegiance of the United
States are natural-born citizens. Birth and allegiance go
together. Such is the rule of the common law, and it is the
common law of this country, as well as of England. Id. at 662-63
(quoting United States v. Rhodes, (1866) (Mr. Justice Swayne)).
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of the United States natural-born
citizens. 916 N.E.2d at 688.
The Indiana Court determined that a person
qualifies as a natural born citizen if he was born in
the United States because he became a United Statescitizen at birth.11
For the purposes of this analysis, this Court
considered that President Barack Obama was born
in the United States. Therefore, as discussed in
Ankeny, he became a citizen at birth and is a natural
born citizen.
Accordingly,
CONCLUSION
President Barack Obama is eligible as a
candidate for the presidential primary election under
O.C.G.A. 21-2-5(b).
SO ORDERED, February 3, 2012.
MICHAEL M. MALIHI, Judge
11 This Court recognizes that the Wong Kim Ark case was not
deciding the meaning of "natural born citizen" for the purposes
of determining presidential qualifications; however, this Court
finds the Indiana Court's analysis and reliance on these cases to
be persuasive.
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Part D
Constitutional Provisions Involved Article II
1 Clause 5; Amendment I; Amendment XIV
Article II 1 Clause 5:No person except a natural born citizen, or a
citizen at the time of the adoption of this
Constitution, shall be eligible to the Office of
President.
Amendment I:
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably toassemble; and to petition the government for a
redress of grievances.
Amendment XIV 1:
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State
wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or
immunities of citizens of the United States; nor shallany State deprive any person of life, liberty, or
property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of
the laws.
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Part E
Statutory Provisions Involved O.C.G.A. 21-2-
15 and 21-2-5
O.C.G.A. 21-2-15:
This chapter shall apply to any general or
special election in this state to fill any federal, state,
county, or municipal office, to any general or special
primary to nominate candidates for any such office,
and to any federal, state, county, or municipal
election or primary for any other purpose
whatsoever, unless otherwise provided.
O.C.G.A. 21-2-5:
Qualifications of candidates for federal and
state office; determination of qualifications
(a) Every candidate for federal and state office who is
certified by the state executive committee of a
political party or who files a notice of candidacy shall
meet the constitutional and statutory qualifications
for holding the office being sought.
(b) The Secretary of State upon his or her own
motion may challenge the qualifications of any
candidate at any time prior to the election of suchcandidate. Within two weeks after the deadline for
qualifying, any elector who is eligible to vote for a
candidate may challenge the qualifications of the
candidate by filing a written complaint with the
Secretary of State giving the reasons why the elector
believes the candidate is not qualified to seek and
hold the public office for which he or she is offering.
Upon his or her own motion or upon a challenge
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being filed, the Secretary of State shall notify the
candidate in writing that his or her qualifications are
being challenged and the reasons therefore and shall
advise the candidate that he or she is requesting a
hearing on the matter before an administrative law
judge of the Office of State Administrative Hearingspursuant to Article 2 of Chapter 13 of Title 50 and
shall inform the candidate of the date, time, and
place of the hearing when such information becomes
available. The administrative law judge shall report
his or her findings to the Secretary of State.
(c) The Secretary of State shall determine if the
candidate is qualified to seek and hold the public
office for which such candidate is offering. If the
Secretary of State determines that the candidate is
not qualified, the Secretary of State shall withhold
the name of the candidate from the ballot or strike
such candidate's name from the ballot if the ballots
have been printed. If there is insufficient time to
strike the candidate's name or reprint the ballots, a
prominent notice shall be placed at each affected
polling place advising voters of the disqualification of
the candidate and all votes cast for such candidate
shall be void and shall not be counted.
(d) In the event that a candidate pays his or herqualifying fee with a check that is subsequently
returned for insufficient funds, the Secretary of State
shall automatically find that such candidate has not
met the qualifications for holding the office being
sought, unless the bank, credit union, or other
financial institution returning the check certifies in
writing by an officer's or director's oath that the
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bank, credit union, or financial institution erred in
returning the check.
(e) The elector filing the challenge or the candidate
challenged shall have the right to appeal the decision
of the Secretary of State by filing a petition in theSuperior Court of Fulton County within ten days
after the entry of the final decision by the Secretary
of State. The filing of the petition shall not itself stay
the decision of the Secretary of State; however, the
reviewing court may order a stay upon appropriate
terms for good cause shown. As soon as possible after
service of the petition, the Secretary of State shall
transmit the original or a certified copy of the entire
record of the proceedings under review to the
reviewing court. The review shall be conducted by
the court without a jury and shall be confined to the
record. The court shall not substitute its judgment
for that of the Secretary of State as to the weight of
the evidence on questions of fact. The court may
affirm the decision or remand the case for further
proceedings. The court may reverse or modify the
decision if substantial rights of the