2011-12-19 WELDEN - Welden Opp to Motion to Dismiss

8/3/2019 2011-12-19 WELDEN - Welden Opp to Motion to Dismiss

1/11

OFFICE OF STATE ADMINISTRATIVE HEARINGS

STATE OF GEORGIADAVID P. WELDEN

Plaintiffv.BARACK OBAMA

Defendant

Kevin lvesua ' , LcantDocket Number: OSAH-SECSTATE-a-1215137-60-MALIHI

OPPOSITION TO DEFENDANT'S MOTION TO DISMISS

The Plaintiff, David Welden, respectfully submits this opposition to Defendant's motionto dismiss.

Statement of FactsFor the reasons set forth below, none of the facts asserted by the Defendant are relevant.

The only fact relevant to this case is the fact that the Defendant's father was not a U.S. citizen.This fact has been repeatedly documented and stated by the party opponent, Defendant Obama.This fact is also evidenced by Plaintiff's exhibit 6, previously submitted with Plaintiff's pre-trialorder and apparently authenticated by Defendant's citation to this exhibit in Defendant's"Statement of Material Facts Not in Dispute," number 7.

Argument and AuthorityThe lengths to which the Defendant goes in order to avoid the one relevant fact is telling.

The Defendant asks this Court to interpret Georgia election code in a way that leaves the code inconflict with itself, goes against the plain language of the law, leaves the law without meaning,and conflicts with common sense. He then cites freedom-to-associate precedent to support an

1


2/11

assertion that has never been supported by such precedent, and which would nullify electioncodes in several states. All of these arguments are futile attempts to distract from the undeniableconclusion: Barack Obama is not Constitutionally-qualified to hold the office of President of theUnited States.

A. Statutory A uthorityGeorgia Election Code states: "Every candidate for federal and state office...shall meet

the constitutional and statutory qualifications for holding the office being sought." O.C.G.A.21-2-5(a).

The Defendant claims that this clear code doesn't apply to Presidential primaries, arguingthat such primaries are not elections. See Def.'s Mtn. at 3. This argument is absurd. If the Stateof Georgia intended Presidential primaries to not be considered elections it would not codify theadministration of such primaries within Title 21 of Georgia's codes, entitled "Election Code."

The Defendant's argument is an attempt to claim that an early part of Title 21 should beconstrued against its plain language in order to prevent that section from having an effect on alater section of Title 21. This argument requires an interpretation of law that leaves Title 21internally conflicting. The Defendant requests this Court to read 21-2-5(a) to mean "Everycandidate for federal and state office shall meet the constitutional and statutory qualifications forholding the office being sought, except candidates for President." The code doesn't make anexception for Presidential candidates. The Georgia legislature certainly could have included suchan exception if they had intended such an exception. They didn't include such an exceptionbecause they didn't intend one.

The Defendant's argument also rests upon an assertion that 21-2-5(a) addresses"elections" and not "candidates." However, 21-2-5(a) doesn't contain the word "election." It

2


3/11

does contain the word "candidate." More specifically, it applies to "Every candidate..." 21-2-5(a)(emphasis added). Since the explicit prevails over the implicit, the "Every candidate"language in 21-2-5(a) negates the Defendant's argument that that section implicitly exempts aspecial category of candidates.

For the Defendant's argument to make sense the Presidential primary would need to beadministered without candidates. However, Georgia Election code specifically requires thepolitical parties to "submit to the Secretary of State a list of the names of the candidates of suchparty to appear on the presidential preference primary ballot." 21-2-193(emphasis added). The

list of names submitted by the parties to the Secretary of State are "candidates," in thePresidential primary. Id. 21-2-5(a) applies to "Every candidate for federal office," and requiresthem to be constitutionally qualified to hold such office. Id. Therefore, 21-2-5(a) applies to thelist of "candidates" submitted by political parties under 21-2-193. 1

Unlike the Defendant's argument, Plaintiff's clear-meaning reading of Georgia Electioncode leaves the code in harmony. Under the Defendant's interpretation the word "candidate"would mean one thing in one section and would not mean the same thing in another section.According to the Defendant, in one section he is a candidate and in the other section he is not acandidate.

Contrary to the Defendant's assertion, nothing in O.C.G.A. 21-2-193 grants the DemocraticParty of Georgia the "sole discretion" to determine which candidates will appear on theDemocratic Presidential primary ballot. While the Party does have sole discretion to determinewhich candidates will appear on the list it submits to the Secretary of State, pursuant to 21-2-193, the State of Georgia determines which candidates will appear on the ballot. The Defendant'sassertion presumes to place the Democratic Party in the shoes of the State. This bold statementreflects an arrogance regarding the Party's authority in the election process. The Party doesn'tpay for Georgia's ballots, or administer its elections. 21-2-193 grants the Party authority tochoose candidates for its list. Nothing more. What the State does with that list is up to the State.The Defendant's presumptuous view of the authority of the Party begins to explain his clearlyerroneous interpretation of Georgia code.

3


4/11

The Defendant also argues that the "certification" mentioned in 21-2-5(a) refers to

O.C.G.A. 21-2-154(a), and therefore the applicability of 21-2-5(a) has not "triggered" prior tothe Presidential primary. Se e Def.'s Mtn. at 3. However, 21-2-5(b) clearly negates thisargument. It states in relevant part, "The Secretary of State...may challenge the qualification ofany candidate at any time prior to the election of such candidate." 21-2-5(b)(emphasis added).Since no one has been elected to the office of President of the United States for the term of officebeginning in January 2013, today is still "any time prior to the election of such candidate." 21-2-5(b) clearly authorizes the Secretary of State to "challenge the qualification of any candidate"

for the 2013 Presidential term at any time before the November 2012 general election, regardlessof whether any certification has occurred, and regardless of what certification is being referred toin subsection (a).

Again, the Plaintiff's plain-language interpretation leaves Georgia Election code inharmony while the Defendant's argument requires internal conflict within the same Title ofGeorgia code.

Finally, the Defendant's interpretation of Georgia code runs against common sense. Itcannot be logically argued that the Georgia legislature passed a statute requiring "Everycandidate for federal and state office" to meet the constitutional qualifications for office, yet itintended the State to ignore the clear disqualification of a candidate for the highest constitutionaloffice in our country.

4


5/11

B. Right-to-Associate Precedent Doesn't Support Defendant's MotionIn his attempt to avoid the only substantive issue presented, the Defendant morphs right-

to-associate precedent into a political party's right to dictate how States' administer elections. 2Se e Def.'s Mtn. at 4-5. The Defendant argues that a political party's right to determine who willbe a member of the party somehow grants the party a Constitutional right to force a State intoaccepting the party's decisions. No precedent supports this argument.

The right to associate has been interpreted to allow private groups to determine who willand 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 (11 t h 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 privateorganization. A party can determine who it will include as members. That party can alsodetermine which of those members will be its candidates. However, nothing in the Constitutionor precedent forces a State to accept a party's selection of candidates for appearance on a ballot. 3

Several right-to-associate cases did involve candidates' exclusion from ballots. Se eDemo cratic Party of U.S. v. Wisconsin, 450 U.S. 107 (1981); Duke v. Cleland, 954 F.2d 1526(1 1 t h Cir. 1992); Belluso v. Poythress, 485 F.Supp. 904 (N.D.Ga. 1980). However, all of thesecases are exactly opposite to the present situation. All involved political parties excluding acandidate because the party didn't want to be associated with the candidate. In every case citedthe candidate sued the party and/or state for inclusion on the ballot after being excluded.

2 The Plaintiff also questions the Defendant's standing to personally assert the Constitutionalrights of the Democratic Party of Georgia.3 Wh ile rWhiight-to-associate precedent has negated some state's restrictive laws for recognizingpolitical parties, these precedent have not forced states to accept all candidates for appearance onballots without any screening of such candidates.

5


6/11

There are no cases where a political party's decision to support a candidate created aConstitutional right to force a State to accept that decision. Such precedent would place thepolitical party's authority above that of the state. This is why no such precedent exists.

It is true that some states lack election codes authorizing any state officials to screencandidate selections from political parties. In these states political parties have essentiallyunfettered authority to determine which candidates appear on ballots. However, these instancesrepresent decisions of the states to not screen candidates. It is the states' right to decide how toadminister its elections. The fact that some states have decided to not protect their citizens from

unqualified candidates does not mean that other states don't have the right to screen candidates.It simply means that some states have left the screening to the political parties.

Georgia has determined that it is in the best interest of its citizens to screen candidatesprior to placement on the ballot. See 21-2-5. Right-to-associate precedent does not preventGeorgia from protecting its citizens in this manner.

C. Right to Associate Doesn't Negate Georgia Election LawThe Democratic Party of Georgia's Constitutional right to determine its membership

coexists with Georgia's right to govern Georgia. Georgia code does not interfere with theautonomy of the political party's internal decision making because it does nothing to prohibit theparties from submitting any name to the Secretary of State for inclusion in the Presidentialprimary. The Party is free to submit Saddam Hussein or Mickey Mouse as their next Presidential

candidate. However, Georgia is not required to accept such submissions and waste taxpayermoney on ballots for such candidates.

Georgia code does not prevent the political parties from submitting any name. Instead thecode simply determines what the State does with the Party's list of candidates after the Party has

6


7/11

forwarded its list to the State. Se e O.C.G.A. 21-2 et seq. This code does nothing to prevent anypolitical party from excluding, or including, any person they choose to exclude or include. Nordoes it prevent the Party from choosing candidates to submit, in its "sole discretion." Georgia'scode simply exercises the State's right to administer elections in a manner that best serves thecitizens of the State.

In the instant case Georgia's Election code does nothing to infringe on the DemocraticParty of Georgia's right of association because the Party can and did include the Defendant in itsorganization. The Party can and did include the Defendant in the Party's list of candidates. The

Party's rights, however, end there. Its rights cannot force the State to place the Defendant's nameon a ballot after the State determines that the Defendant is obviously not qualified "to hold theoffice sought." 21-2-5. The rights of the Party and of the State simply do not conflict. 4

The Defendant's argument would logically require a conclusion that no state can precludeany candidate from any primary ballot for any reason without violating a political party's right tofreely associate. Since many candidates have been disqualified from primary ballots for lack ofqualification to hold the office sought, we can safely conclude that the Defendant's argumentfails. If his argument succeeds, many election codes across the country will need to be re-drafted.

D. Defendant's Conclusion is Offensive to the ConstitutionThe Defendant states that the issue raised by the Plaintiff was "soundly rejected by

69,456,897 Americans in the 2008 elections." Se e Def.'s Mtn. at 5. This statement reflects acomplete lack of understanding regarding Constitutional protections.

4 The Defendant's belief that the Party somehow owns and has autonomy over the State'sprimary election explains why he fails to understand the simple concept set forth here.

7


8/11


9/11

The matter before this Court has nothing to do with the birth place of the Defendant, nor

does it assert that he is not a citizen of the United States. In fact, limited to this challengedprimary election, the Plaintiff will stipulate that the Defendant was born in Hawaii, that theDefendant is a U.S. Citizen, and that the Defendant was Constitutionally-qualified to serve as aU.S. Senator. The Plaintiff makes no assertion regarding the Defendant's passports, or socialsecurity number, or any other fact related to the Defendant, other than the one fact asserted at thebeginning of this opposition: that the Defendant's father was not a U.S. citizen.

Contrary to the Defendant's assertions, the issue presented by the Plaintiff is grounded on

one uncontestable fact, and one clear definition from the U.S. Supreme Court. See Minor v.Happersett, 88 U.S. 162, 167 (1875).

F. Substantive Question for this CourtDespite all of his attempts to misdirect this Court from the one substantive issue

presented, the Defendant has failed to present grounds for dismissal. The Plaintiff respectfullyrequests that this Court consider his simple yet critically important grounds to prohibit theDefendant from appearing on the Georgia ballot:

It is undisputed that President Obama's father was never a U.S. citizen. To Plaintiffs'knowledge Mr. Obama has never denied the fact that his father was not a U.S. Citizen, nor has heever made any statements contrary to this fact.

The U.S. Supreme Court has defined "natural-born citizens" as "all children born in acountry of parents who were its citizens." See Minor v. Happersett, 88 U.S. 162, 167 (1875). TheCourt in Happersett did go on to state that other sub-categories of people may or may not bewithin the broader term "citizen." However, it did so only after specifically identifying thenarrower category "natural-born citizens." Id . The Happersett Court clearly understood and

9


10/11

established that "citizen" is a much broader term than "natural-born citizens." Its discussion of"citizen" does not negate or alter its earlier definition of the term "natural-born citizens." See Id.at 167-168. This precedent has never been questioned by any subsequent Supreme Court. Thisprecedent is binding.

Because it is undisputed that Mr. Obama's father was not a U.S. citizen, the Defendantcan never be a natural-born citizen, as that term was defined by the U.S. Supreme Court.Therefore, the Defendant cannot meet the Constitutional requirements to hold the office ofPresident. See U.S. Const. Art. II Section 1. 5 Georgia election code requires such a candidate to

be stricken from any Georgia ballot. 21-2-5.

ConclusionFor the reasons set forth herein, the Plaintiff respectfully requests that this Court deny the

Defendant's motion to dismiss.

Van R. IrionLiberty Legal Foundation9040 Executive Park Dr., Ste. 200Knoxville, TN 37923(423) 208-9953vanglibertylegalfoundation.cornAttorney for Plaintiff

5 Mr. Obama's place of birth is completely irrelevant to this conclusion. The Plaintiff makes noassertion regarding Mr. Obama's place of birth.

10


11/11

CER TIFICATE OF SERV ICEPursuant to the O rder entered in this matter regarding electronic service, I certify that Ihave served the oppo sing party in this matter w ith a copy of P laintiffs Opp osition Defendant'sM otion to Dism iss by sending a copy via e-mail addressed to: M ichael Jablonski

[email protected] the 19 t h day of D ecember, 2011.

Van R . IrionLiberty Legal Foundation9040 E xecutive Park Dr., Ste. 200Knoxville, TN 37923(423) [email protected] for Plaintiff

11

Documents

2011-12-19 WELDEN - Welden Opp to Motion to Dismiss