Monthly Archives: December 2008

The founding fathers set up guidelines for presidential elections and laid out the rules in the US
Constitution and subsequently Federal Election laws. There are two aspects that stand out about the
rules. First, the eligibility requirement for president is defined. But even more clear than
presidential eligibility, the powers given to the states are clearly defined. The states are given
control of the election process through the vote by the Electoral College Electors. The state
election laws vary widely and regardless of how explicit and detailed they are written, they all
fall under the guidelines and rules of the US Constitution. The ultimate objective is to elect a
qualified president. All laws and procedures must work to that end. The Electoral College Electors
are bound to uphold the US Constitution and therefore must only vote for a constitutionally
qualified candidate.

State laws have evolved out of tradition and indeed tradition drives many procedures and opinions
about allowing candidates on ballots and proceeding through the election process to being chosen
by Electoral College Electors. Allowing candidates to appear on ballots from instructions by major
political parties has evolved into many variations by state. The political parties are given no
special powers in the US Constitution. It is clear that each state has the full power and obligation
to ensure that a candidate running for president is qualified to hold office. To do otherwise
threatens to disenfranchise a myriad of voters. The citizens of each state expect state officers and
election officials to protect them and their votes.

It is clear that the states have been given the power to control the election process through the
Electors vote. Some states have recognized their power to challenge eligibility in state laws. It is also
clear in the Tenth Amendment to the US Constitution, part of the Bill of
Rights, that any powers not reserved for the federal government or the states, are reserved for the
people. Any state taking the position, incorrectly, that they have no power to challenge the
credentials of a presidential candidate have relinquished that power to their citizens.

One thing is clear from the research I have done. There is much confusion and misunderstanding about
the election process and responsibilities. As stated above, tradition is a huge driving force. I have
reviewed the US Constitution, Federal Election law and many state election statutes. I have also read
legal opinions and writings from constitutional experts. Below are federal and state laws and the major
players who have responsibilities in governing elections, state officers and election officials, judges
and congressmen.

Read about the US Constitution, Federal Law and Electors

Laws applicable in NC

Examples of state laws that address the issue of challenging eligibility

North Carolina

NC Statute § 163-114.  Filling vacancies among party nominees occurring after nomination and before election.

“If any person nominated as a candidate of a political party for one of the offices listed below (either in a primary or convention or by virtue of having no opposition in a primary) dies, resigns, or for any reason becomes ineligible or disqualified before the date of the ensuing general election, the vacancy shall be filled by appointment according to the following instructions:
Position

President 

Vacancy is to be filled by appointment of national executive
committee of political party in which vacancy occurs”

Georgia

§ 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 such candidate. 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 being filed, the Secretary of State shall notify the candidate in writing that his or her qualifications are being challenged and the reasons therefor 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 Hearings pursuant 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.”

Florida

102.168  Contest of election.–

“(1)  Except as provided in s. 102.171, the certification of election or nomination of any person to office, or of the result on any question submitted by referendum, may be contested in the circuit court by any unsuccessful candidate for such office or nomination thereto or by any elector qualified to vote in the election related to such candidacy, or by any taxpayer, respectively.”

Examples of ignorance, bias and tradition in positions of responsibility:

Connecticut Secretary of State
Susan Bysiewicz

“The court was satisfied that officials in Hawaii have stated that there is no doubt that the Democratic
presidential candidate was born there and that the state’s health department posseses Senator Obama’s
original birth certificate. This is now a matter of public record.”

What the Hawaii Health Officials said

Judge Surrick ruling on Philip J Berg case
Constitutional expert Ellis Washington responds:

“Constitutionally speaking, Judge Surrick’s reasoning is completely illogical and a total dereliction of his duty as a judge to substantively address this most vital constitutional controversy. Instead, in a gutless manner, Surrick dismissed Berg’s complaint 10 days before the elections on a technicality of standing, which to any rational person begs the question: If Philip J. Berg as an American citizen, a respected Democratic operative and former attorney general of Pennsylvania doesn’t have the “standing” to bring this type of lawsuit against Obama, then who in America does have standing? The good judge in all 34 pages of legal mumbo jumbo didn’t bother to answer this pivotal question.”

Read more

Senator Mel Martinez of Florida

The following is from a response from Senator Mel Martinez of Florida. Mr. Martinez clearly has no
understanding of the US Constitution  or election laws. The scary part is that Congress is part of the
last checks and balances during the election. Congress has the power to sertify the Electoral College
votes and challenge them.

“Thank you for contacting me regarding President-Elect Obama’s citizenship. I appreciate hearing from you and would like to respond to your concerns.

Like you, I believe that our federal government has the responsibility to make certain that the Constitution of the United States is not compromised. We must fight to uphold our Constitution through our courts and political processes.

Article II of the Constitution provides that “no Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.” The Constitution, however, does not specify how that qualification for office is to be enforced. As you may know, a voter recently raised this issue before a federal court in Pennsylvania. On October 24, 2008, the United States District Court for the Eastern District of Pennsylvania released an order in the case of Berg v.Obama.In that case, the plaintiff, Phillip Berg, raised the same issue that your letter raises regarding proof of the President-Elect’s birthplace. Through his lawsuit, Mr. Berg sought to compel President-Elect Obama to produce a certified copy of his birth certificate.

The District Court dismissed Mr. Berg’s suit and held that the question of Obama’s citizenship is not a matter for a court to decide. The court further noted that voters, not courts, should decide whether a particular presidential candidate is qualified to hold office.

Presidential candidates are vetted by voters at least twice – first in the primary elections and again in the general election. President-Elect Obama won the Democratic Party’s nomination after one of the most fiercely contested presidential primaries in American history. And, he has now been duly elected by the majority of voters in the United States. Throughout both the primary and general election, concerns about Mr. Obama’s birthplace were raised. The voters have made clear their view that Mr. Obama meets the qualifications to hold the office of President.”

I contacted Senator Martinez’ office this morning and no one has responded. If Senator Martinez would like
to respond, we welcome that. If you are a citizen of the state of Florida you may want to contact Senator
Martinez and voice your concerns over his lack of knowledge. I am certain he is not the only member of
Congress to be informed.
What we have here is a failure to communicate and a real mess.

What can we do?

Continue to inform all of those involved in the election process of their legal duties and demand that
Barack Obama prove legally that he is eligible.

For those state officers, election officials, Electors, judges and congressmen that fail to do their
job and uphold the US Constitution, hold them accountable. State laws vary but their are usually remedies
available such as recall, impeachment and dismissal. Don’t forget, you have more power than is normally
recognized. The Tenth Amendment gives us plenty of power. Also, make sure you share information with
others and ask them to do the same.

God help us if the US Supreme Court fails us