Eligibility Bills Draft

http://butterdezillion.files.wordpress.com/2011/01/eligibility-bill-draft-4-pair-of-bills.pdf ^ | 01-07-2011 | butterdezillion

[TNTNT]

I have the same critique that I had when I first saw your proposed bill a week or so ago and gave you my thoughts then, so I will not repeat which was previously discussed in detail. I honestly think you trying to bite off more than can be chewed and that if you have a chance of any of this proposal to become law, you need to steam line it, make less convoluted and more understandable to the average legislator.

One change I notice right off the bat that you divided the proposal into 2 bills which is probably not necessary if you include a severability clause. I know you are wed to the 2 citizen-parent theory, but the language you use to address that issue in all likelihood causes Constitutional infirmities to both bills because both have extra-constitutional eligibility requirements to be POTUS that are not contained in the US Constitution. Hopefully, a severability clause can save at least a portion of either bill, if anything is left to be salvaged.

I have still have a problem with the statutory scheme you set up whereby it appears the AG is an advocate for both the state and the aggrieved candidate. I anticipate in real life, that is not what will occur. I expect that, most likely, both political parties will sue and probably the DOJ will join in the suit. With the 2 citizen-parent language, I further expect immediate injunctive relief enjoining enforcement of the statute until the case and all appeals are adjudicated. Kind of like the Arizona anti-illegal immigration case. Whether that can be accomplished prior to the 2012 election cycle is highly doubtful.

I feel that if you really want to have something in effect for the 2012 election, you need to keep the kiss principle in mind. I would propose that bill require to gain access to the ballot, the candidates submit a certified copy of their BC to the chief election officer of the state. The birth certificate must conform to the standard required to obtain a passport. This utilizes a standard that is already in place and removes the argument of long form v.short form, etc. It is easy to understand not only to general public, but also the legislators whom you need to convince. In addition, it is so reasonable that the dumbo-rats will have a difficult time objecting to it which increases the odds of it's passage and meaningfully addressing the issue.

I applaud your efforts in attempting fashion a remedy to the problems that you perceive. I just think the odds of the proposed bill to emerge from committee hearings,and the legislature without radical changes are infinitesimal, and the odds of it surviving a constitutional challenge are nil. Now if your primary purpose is get a court decision on the 2 citizen-parent theory, then you will probably be successful to get a Court of Appeals decision and maybe a SCOTUS decision. As I previously noted, knowing your viewpoint, I seriously doubt you will be pleased with the decision.

[butterdezillion]

There is no extra-Constitutional requirement if the 2-citizen interpretations holds, and with a severability clause that not holding would not jeopardize anything else.

The AG is not given the job of defending or prosecuting. The AG is given the job of just collecting arguments from amicus briefs and presenting them together with the evidence. The point is to keep the lawyering out of it, to basically leave the court to look at the evidence and decide it, with an automatic appeal to SCOTUS. The “bent” of the AG is left out of the picture just like the “bent” of the SOS is left out of the picture.

Is there a legal problem with the AG having those duties? If so, what is the legal problem with that?

The candidate could file his/her own suit if he/she wants to do the legal wrangling that costs so many millions to do, but that would not stop a simple, straight-forward case that a court decides simply on the basis of the evidence and arguments.

If the DOJ wants to file for injunctive relief they could put every law in every state in the Union to be on hold. What are we gonna do - file frivolous lawsuit charges against the DOJ? Trying to appease the DOJ is about like trying to appease the Islamists. They’re gonna fight you tooth and claw no matter what you do so you may as well forget about going halfway.

If some law had required a selective service registration you know what they would have gotten? A forgery by the fine folks at the Selective Service Administration - having ‘08 for the date stamp while they try to pass it off as ‘80.

That’s just a fact. When we’re dealing with this level of corruption, we have to confront it. If law enforcement won’t confront it then the only way “we the people” have is through laws requiring the documentation/crimes to be exposed where the public can push for real legal accountability.

The other thing is the shenanigans we’ve seen from the SOS’s already. I gave the example of Ohio, where the SOS was required to compare voter lists to the DMV and Social Security database to find ineligible voters. Because the law didn’t specifically say that she had to show the list of ineligible voters to anybody she didn’t, and that was considered good enough.

So a candidate has to show the SOS a birth certificate. So what? That doesn’t mean that the SOS has to even look at it or make any decision based upon it, or that anybody would be able to sue him/her for not looking at it, or...... any number of other wormy evasions the SOS might take. There is a reason that George Soros wants communists in the SOS positions.

It would be nice to think that something like what I’ve got is excessive, but from the experiences we’ve had, it’s not. That’s the sad part. The sad part is that everything that’s in that bill comes from some wormy bureaucratic or judicial behavior that the nation has already been burned by. Stuff I would NEVER have thought a thinking person would have to be told I now realize has to be spelled out in exact detail, or else the bureaucrats will worm their way out of it.

If Congress can pass thousand-page bills that nobody has even read or - like the Cap and Trade Bill, wasn’t even WRITTEN yet, but just had spacer to be filled in later (talk about a signed blank check!!) - then a state legislature can read 2 pages in order to give the people real accountability, hold the scummy bureaucrats accountable to the law, and prevent the very fiasco we’ve had that has put us in a Constitutional crisis.

Just for the sake of the prison time and $800,000 of personal money Lakin has had to spend, it SHOULD be worth our noble public servants taking the time to read 2 pages’ worth of small words in normal English. Wouldn’t you say? What arrogant a$$es state legislators must be, if the time to read 2 pages is considered too high a price to pay to keep somebody like Terry Lakin from having to spend $800,000, 6 months of prison, and his livelihood just because our lawmakers couldn’t be bothered with holding their own bureaucrats accountable. What state legislator is so arrogant to think that 10 minutes of their time is worth more than $800,000 and a man’s livelihood measuring into the millions?

I’m tired and I’m getting angry again just thinking about this so I better step away and come back to it later. But my question is what legal arguments would be used to say that the things you have qualms about are unconstitutional?

[TNTNT]

Your proposal with only the AG presenting evidence and argument to the court for both sides is a definite conflict of interest. In addition it could be argued that the provision violates Article 3 of the US Constitution, although that could go either way. You must remember that the US legal system is an adversarial system and your proposal does violence to that concept. This statutory scheme will not be readily approved by any court, but rather is likely to be tossed out. But it will matter little because I can guarantee you that the DNC, RNC and DOJ will most likely be mixing it up with whatever state decides to tackle this issue, if one decides to take on the expense.

In addition, my guess is that all of those parties will rather litigate the issue in Federal Court, rather than in a state court in the state which passed the law. I believe a Federal Judge will oblige that request. But that is a forum shopping argument, rather than a constitutional argument.

There is no question in my mind that the 2 citizen-parent theory will be grounds for injunctive relief as outlined in my previous post. This will delay enforcement of the law 2-3 years minimum, if by some miracle it survives Constitutional muster, which is probably 1000 to 1.

I understand your frustrations in dealing with different governmental agencies, but the law cannot rectify and address every perceived wrong. More laws are the liberal solution to their perceived wrongs and don't believe we want to go down the same path. It is obvious from your comments that you have not had the pleasure dealing many legislators. With your proposal, 45% of the legislators will not take the time to read it in it's entirety, and another 45% wouldn't understand it. You may have a chance with the other 10%.

[butterdezillion]

OK. Here’s a shorter form. What is gained by this version? What is lost? Feedback is requested:

Short-Form Eligibility Bill

Before being placed on a ballot, a candidate for President or Vice-President must state his/her name and place of birth and parents’ names, provide proof of being a US resident for 14 years, and sign a consent form for the Secretary of State to receive certified copies of all his/her birth records and all his/her and his/her parents’ citizenship records – including all transaction logs for all records.

The Secretary of State must secure all said statements, proofs, and records, redact information to comply with state and FOIA privacy provisions, and post scans of all the documentation to the Secretary of State’s website. Redacted originals must be made available for public viewing.

The Secretary of State must also complete and post to the SOS website a list saying whether the records confirm that the candidate was born in the United States to 2 US citizen parents, will be at least 45 by the start of the Presidential term, has been a US resident for 14 years, and shows no discrepancies in transaction logs that call into question the veracity or legal validity of the records.

If any of these conditions is not met or if any person contests the eligibility of the candidate within 30 days after both the documents and the list are posted to the website, the Secretary of State shall deny placement on the ballot unless and until the judiciary, with all appeals exhausted, rules the candidate eligible.

If a provision of this bill is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect:

1. the validity or enforceability in that jurisdiction of any other provision of this bill; or

2. the validity or enforceability in other jurisdictions of that or any other provision of this bill.

[butterdezillion]

I’m sorry, but all I can hear coming from your posts is “It’s hopeless. The big guns will never let justice prevail. Give up and die.”

Maybe I cannot win. But I will meet them in battle nonetheless. The big guns of King George were supposed to be unbeatable too.

[butterdezillion]

Also, TNTNT, it seems like you didn’t absorb what I wrote. The AG simply transmits the arguments and evidence to the court. The candidate’s lawyer can present whatever arguments he wants, with it being transmitted in writing through the AG. Same thing with the AG himself and anybody who cares to write an amicus briefs. If anything this allows MORE abversarial views to be presented because it leaves out all the procedural jackassery.

But you’re probably right. Without the potential for jackassery and obfuscation, none of the dems, reps, or Department of Injustice will like it. It serves the interests of the little people and justice too much, and that would never do.

They will snuff it out just like they snuff out every breath of fresh air that finds the tombs they intend to bury us all in.

[TNTNT]

I am just being realistic and of the opinion that you have needlessly cluttered up your proposal with language that will make it:
1)Very difficult to pass;
2)Very expensive to defend;
3)Delay its it's implementation and enforcement 2-3 years;
4)Cause a large part, if not all, of the proposal to be found unconstitutional;

Now if your goal is to get a court ruling on the 2 citizen-parent theory, you have probably succeeded. But I think you want to get a lot more accomplished with the proposal than what will most likely be a Pyrrhic victory.

[TNTNT]

Having the candidate who has been denied access to the ballot to have his arguments presented to the court by and through the attorney for the state that denied him access will not be allowed by any court in this country. That is without a doubt unconstitutional and a violation of due process.

FreeRepublic is very slow tonight, so I will get back with you tomorrow on your most recent proposal.

[CORedneck]

It goes something like this - “if any part of this law is ruled unconstitutional, all other parts remain in full force”, to that effect.

> That’s the term I couldn’t remember. Can you give me an example of a severability clause?

[TNTNT]

BDZ, you have done a good job on cleaning up the language and making it easier to read and understand. That will help in convincing legislators as to the merits of your bill. Since you are absolutely wed to the 2 citizen-parent theory, this is probably as good as you are going to get, keeping in mind the previously discussed infirmities. Good luck finding a sponsor for the the bill.

[butterdezillion]

Is there a requirement that every case have oral arguments?

When did Berg present oral arguments? Donofrio? Wrotnowski? Kerchner?

When were those people allowed to present oral arguments? If they were not allowed to present oral arguments, then were their Constitutional rights violated?

Is it unconstitutional for their written arguments to have to be submitted to the court by the clerk of the court, since it is the clerk who actually physically “presented arguments to the court”?

The AG’s job in this context would basically be that of a clerk. Are clerks unconstitutional?

[butterdezillion]

The only way to get a ruling on the 2-citizen-parent definition, which was the one Congress used in the Leahy Resolution so Congress has already signed off on it, is by having a state actually use it so the court will be forced to rule on whether it is Constitutional.

I didn’t put any whereas or therefore in the short version, but maybe it could include a whereas that cites the Leahy Resolution.

Leaving out the AG part makes it simpler but what it also does is leave it up to the AG to defend the state’s position without necessarily having to accept input from the public. It also leaves it to the judge and/or AG as to whether the provenance and validity of the documents would be subjected to an audit/investigation. Maybe having the evidence available to the public would be enough accountability that an AG would be forced to treat the issue with integrity.

Leaving the issue to just the “judiciary” to determine the candidate’s eligibility means that it would have to go through all the state courts and then through all the district courts on appeal, which would be a long, expensive process. Because the bill says the name can’t be on the ballot until those steps have been completed (maybe I need to be clear that all the steps have to be completed) there would be a natural deadline of when the ballots were to be printed. It’s up to the candidate to see that the appeals are all completed on time. Having a streamlined process would have helped the candidate meet that deadline.

Another lawyer who gave me advice on this suggested that the state judiciary especially be designated as the place for the adjudication because state law can require the case to be expedited and the appeal can go directly to SCOTUS - which would be critical to keep political opponents from contesting on frivolous grounds just to keep the case locked up in federal appeals beyond the printing of the ballots. You said that the suits over Constitutionality could take 2 years to resolve. Unless something is expedited to leave out all the lawyerly jackassery, nobody who is contested would ever make it on the ballot.

The short form could designate the state Supreme Court as the venue for the case, with the appeal directly to SCOTUS. Seems like you’re saying that the person who files the suit gets to decide where it is filed, but is there anything the state can do to expedite and streamline the process?

This also means that if somebody monkeyed with the documents at a DOH somewhere they could cost a candidate a lot of money in arguing the lawsuits. I could see somebody doing that to Sarah Palin, for instance. Hopefully the deterrent would be that the DOH’s shenanigans would be investigated and somebody would get put in jail for it.

[TNTNT]

I assume you are asking about appellate cases. There is no requirement that every case have oral arguments. In fact, the majority of cases do NOT have oral arguments. There is nothing in the Constitution regarding oral arguments. Whether oral arguments are allowed in a case is governed by the rules of each court and the discretion of the justices.

The parties submit their Petitions and briefs to the court. The clerks are employees of the court performing ministerial duties for the court. The clerk does not ‘present argument’ to the court, since they are employees and under the direction of the court. The ‘argument’ is presented to the court when the specific document is filed with the court. It is the clerk's office which accepts the document on behalf of the court.

The AG’s office and it's duties are never basically that of a clerk. It's legal duties are to be the ADVOCATE for the state and officials and ensure ENFORCEMENT of the state's law's. If you testify in committee regarding your bill that the AG is basically just a clerk, I promise you that your bill will never make it out of committee. You must be very careful as to how you phrase your arguments.

[butterdezillion]

The only way that the AG’s responsibilities that were stated in the longer version differed from a clerk is that the AG was also to file the case in the first place, which is something a clerk cannot do.

My point in comparing the AG to a clerk is to say that the AG would have no more conflict of interest than a clerk would have, and in his/her role as defined in the bill would no more impact the legitimacy of the case or the rights of the plaintiff than having a clerk submit documents would impact that.

Without comparing the AG to a clerk, the bill defines the AG’s funciton in the case as being one who collects written arguments and gives them to the court - simply submitting everything offered to support either side of the case. Allowing all voices to be heard. On what grounds would either the dem party, the rep party, or the DOJ claim that this role violated due process?

Ultimately, the AG is SUPPOSED to represent the interests of both the government AND the people. If there is a conflict of interest there, then the position of AG is useless. The trouble we’ve had is that the AG’s for the most part side with their cronies in the government because those are the people who butter their bread. And that is a large part of what has put this country in the lawless state it is in. The US attorneys do the same thing. We the people have NOBODY defending us. Nobody. And the courts deny “we the people” standing because none of us has particularized harm, since we’re all being screwed equally.

The system is very convenient and “pat” for the lawyers and judges. They can work things however they want, so they like it and will fight anybody who interrupts the status quo. It’s just us little people who get shafted by it.

The judicial and executive branches are NOT accountable to us in any way, shape, or form. That leaves the legislative branch. Will they stand up for us? That remains to be seen. Sounds like you’re saying that the other two branches can totally wipe out the legislative branch if they try to stand up for us anyway.

“The man” always finds a way to hold down the little guy. That’s what government does. I had hoped that this form of government was different, but maybe that’s my idealism coming through. Maybe this form of government is no different than every other tyranny; maybe America has never been exceptional. The more I listen to the lawyers, the more I fear that to be the case.

That’s why lawyers are mostly poison to me. My daughter wants to be a lawyer. She’s 11. She thinks if she can become a lawyer quick enough she can fix this mess. I don’t even know what to tell her.

[TNTNT]

The ‘Leahy Resolution is not authority in support of requiring 2 citizen-parents if the individual is born in the USA. The reason the resolution was passed was because McCain was not born within the sovereign territorial limits of the USA. Only because he was not born in the USA was the citizenship of his parents necessary to addressed. Under the U.S. Code, if a person is born outside the USA to citizens, that person is still a NBC even though not born in the USA. You must look to reason why, historical perspective and context of the resolution. The process and passage of the resolution was not done in a vacuum.

You can put whatever you wish in the proposal as to where a suit should be brought, but that will prevent the DOJ, RNC nor DNC from bringing a case in Federal Court since this issue necessarily involves a Federal, US Constitutional question. This will not prevent someone from being denied access to the ballot since I am sure the the enforcement of the law will be enjoined while the case is being litigated. Similar to the Arizona case.

[TNTNT]

Correction: 2nd paragraph:...that will NOT prevent the DOJ,RNC nor...

[butterdezillion]

IOW, the big guns can stop the little guys for as long as they can keep the lawylerly jackassery tapdance routine going. That is the case regardless of what is in the bill. There’s no way to appease the Department of Injustice monster so there’s nothing left to lose; may as well do the whole thing and at least have something of value when you’re done.

Where in the US Code does it say specifically that a person is a “natural born citizen” if born to 2 US citizens outside the US?

[TNTNT]

Wow, FreeRepublic is even slower today than yesterday, if possible. The citation you requested is U.S.C. Title 8, Section 1401.

The US justice system is the best in the world and is used as a model throughout the entire world. No one is trying to stop anything. There are rules and procedures that must be followed to maintain an orderly system. I am sure you can understand that.

The DOJ rarely gets involved and challenges a state law. I will be surprised if it has done so more than 5 times in the last 20 years. The language you have proposed is so blantantly unconstitutional and effecting federal elections,specifically the presidential election, that DOJ will have to get involved, either bringing the suit or joining one brought by the RNC or DNC.

[butterdezillion]

USC Title 8, Sec 1401 can be found at http://www.law.cornell.edu/uscode/8/1401.html .

Nowhere does it use the term “natural born citizen”. You have misrepresented what it said. It talks about who is considered a citizen at birth.

You talk about what I’ve written being so blatantly unconstitutional, but when I’ve asked you on what grounds it is unconstitutional you don’t respond with any specifics. I asked what constitutional rights would be violated if an AG simply relayed the written arguments from both sides to the court. You’ve never answered that. Where in the constitution does it say that an AG can’t be the person to transport the papers to the court?

And regarding the short version I don’t even have anything with the AG. It has the 2-citizen parent requirement so that the courts will have to rule on the constitutionality of that, and in the meantime the other parts of the law would remain in effect whether or not the 2-citizen-parent part was found unconstitutional. What is unconstitutional in all of that? The parts that concern 2-citizen-parents would have to wait the 2 years or however long for the Dept of Injustice to do its dilly-dallying, but unless the rest of it is argued as unconstitutional what would the DOJ use to say that it could not go into effect?

It would be a little bit like saying that none of the Constitution can be in effect until we figure out whether gay marriage is constitutional. Can the DOJ put a restraining order on the whole Constitution because there are questions pending about part of that legal document?

I think your goal is to get me to give up. It won’t work.

You are the only person who has seen any constitutional issue with this. I ran it past tired old conservative, and it seemed to me that he thought it not the best thing that could be passed but didn’t mention constitutional concerns. Neither did a real-life lawyer who looked at it for me.

TOC, I know it’s been slow posting around here and so you might not have said everything you otherwise would have. Were there constitutional concerns you have with anything I’ve presented? Is there anything specific that is so blatantly unconstitutional that the RNC, DNC, and DOJ would all jump against it on Constitutional grounds and the DOJ would HAVE to order it to not be implemented until they can put it through 2 years’ worth of dilly-dallying?

I don’t doubt that Eric Holder’s Department of Injustice will do exactly that, but I’m wondering if there is anything in the concepts or language which would prompt that, or whether it would just be the same political agenda which compels him to not enforce the law when minorities are the perpetrators.

If Eric Holder gets in hot water himself because of the way he’s politicized the DOJ he might not be around to try to stop state eligibility laws from going into effect.

[TNTNT]

BDZ-A citizen at birth is a Natural Born Citizen. There are 2 types of citizenship, Natural Born and Naturalized. If you a citizen at birth, whether you were born in the USA or not but qualify under the different clauses of 1401, then you are a NBC. If you acquired USA citizenship AFTER your birth, then you are a naturalized citizen and not eligible to be POTUS. That is an easy way to distinguish the two (and only two) types of citizenship.

As I have previously posted, I believe the 2 citizen-parent requirement, if the person is born in the USA, is an extra-constitutional additional requirement to be POTUS that is not in the Constitution. I am also sure that whoever sues regarding this provision will be able to obtain injunctive relief while the case is pending in the courts.

I know you do not agree with my viewpoint of either of the above, but it based upon the the relevant case law, statutes and history, I am fairly confident of the outcome of your project.

TOC- if you are lurking and have anything to add or correct to what I have said, feel free to add your 2 cents.