Saturday, November 29, 2008
To My Fellow Conservatives: The Legal Issue of BHO’s Citizenship is Moot (for now)
by W. T. Howes
The time to challenge President-elect Obama’s citizenship has long since passed. Based on long-standing principles of election law, opponents must raise defects in nominating petitions, including the eligibility of the candidate, at the time of the filing of the nominating petition. Petitions were filed in late 2007 and early 2008. There were no legal challenges And not for nothing: Don’t you think that Senator Clinton would have raised this issue in order to keep BHO off the ballot? Citizenship will remain as a political issue, and may return as a legal issue in 2012.
In the weeks that have passed since the general election, there has been much legitimate debate in the conservative blogosphere about President-elect Obama’s citizenship. The debate follows litigation filed by Phil Berg (Pennsylvania), Leo Donofrio (New Jersey) and Alan Keyes (California). All three of those suits raise interesting points of law and fact. The bottom line is that no court will - or should - now bar BHO from taking office in 2009.
Some well-established principles of election law have been at work in the Obama case: Voter choice, ballot clarity and efficient administration of elections, to name three. Unfortunately, none of the interested bloggers have discussed these principles.
President-elect Obama was nominated in each of the fifty states (except Michigan), Puerto Rico and the District of Columbia in the manner mandated by the election law established in each of those jurisdictions. There are general principles of election law that underlie the process in each state and territory. A nomination is established, with a few exceptions, by a nominating petition filed by the legal deadline with the chief election law in the state or territory. There are a minimum number of signatures required, and qualifications for people who sign the nominating petition.
There are a number of ways that a petition can be deficient. If a petition is deficient, the appropriate election officer can refuse to permit the candidate on the ballot. If that does not happen, the petition is subject to legal challenge by opposing candidates. There is a very short window of opportunity for such a challenge. Bases for petition challenges fall into three basic categories: (1) Insufficient number of qualified nominating signatures; (2) technical deficiencies; and (3) the nominee lacks legal or constitutional qualifications or suffers from a constitutional or legal bar to serve in the particular office.
The reasons for the short time period for petition challenges are clear: The ballots must be prepared in a timely and orderly manner. Once they are prepared, the voters and the candidates then can rely on the ballot as prepared by the election official. In that time-honored manner, the voters know what their choices are and can be confident that their choice will be honored.
In the Obama case, not one of his opponents challenged any one of his petitions in any state or territory. Election litigation is one of the hallmarks of the Democratic Party. Indeed, President-elect Obama has benefitted from outstanding lawyering both in his initial State Senate election (in which his lawyers had the incumbent disqualified) and in his U.S. Senate election (in which his lawyers were able to push the incumbent out of the race). Sentator Clinton had dozens of outstanding election lawyers on her team. Some of her political allies served as chief election officers in the states and territories. She had the knowledge. She had the opportunity. She had the ambition. And Team Clinton is certainly capable of hardball politics.
Despite all that, Senator Clinton did not challenge any of the Obama petitions based on his legal or constitutional qualifications to hold office. Why? Lack of gumption? No. Lack of knowledge? No. Lack of resources? No. Perhaps Senator Clinton did not make such a challenge because her research indicated that BHO was legally and constitutionally qualified to hold the office.
Interested observers have asked: Well, why didn’t Obama produce his vault birth certificate to be examined in a court of law? The answer is easy: Because the legal issue was never properly framed in a petition challenge.
Now that the general election has taken place, it is too late to disqualify a candidate. The electorate in the states and territories had a very long period in which to consider their choices both in the primary and in the general. No court should now reverse those elections and the choices of one hundred and twenty million people. To do so would be to invite legal and civil chaos. To do so would create a power vacuum which could be a national security threat.
Citizenship will remain as a political issue for many, and it may return as a legal issue once the future President Obama begins to file nominating petitions for his re-election. But for now, the citizenship is moot as a legal issue where the 2008 election and 2009 inauguration is concerned.
W. T. Howes resides in New Jersey with his wife and two children. He practices law with a specialty in election law. He is a founder of Men for Palin. He formerly published under the pen name Charles W. Fairbanks.
