Senator Obama and the DNC File for Dismissal of Berg vs. Obama

On Thursday September 24th, 2008 Senator Obama and the Democratic National Committee filed a motion to dismiss the Berg vs. Obama lawsuit on the basis that the Court does not have jurisdiction because Mr. Berg "lacks standing to challenge the qualifications of a candidate for President of the United States."

Senator Obama and the Democratic National Committee claim in the accompanying brief that any harm done to Mr. Berg "would adversely affect only the generalized interest of all citizens in constitutional governance" and, therefore, Mr. Berg, as an individual voter "does not have standing based on harm he would suffer." (The complete motion and brief as filed with the Court is attached below.)

Mr. Berg is preparing a response opposing the dismissal which will be presented to the Court over the next few days. At the time of filing, the Court granted preliminary standing. The Court is expected to review the Obama / DNC motion for dismissal and the Berg response quickly. The Court may hold a hearing before issuing a final ruling on standing.

"Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), defendants Democratic National Committee and Senator Barack Obama respectfully move the Court for an order dismissing the Complaint on the grounds that this Court lacks subject-matter jurisdiction over the claim asserted and that the Complaint fails to state a claim upon which relief can be granted."

I agree. Plus, I believe that, even if the Dem lawyers said to BHO "Hey, let's just show the judge the birth certificate and then sue Berg for libel" that BHO would stonewall his own lawyers, and tell them to think of something else.

If it contained all of the information that the forgery had, and also looked like it, too, then he would have shown it already to a neutral third party, and use that to squelch everything else.

What I don't understand is why this matter has never been brought up on the House or Senate floor

Re: “Alan Keyes says he is still running for president. Maybe he would join Berg’s lawsuit.”

Well, Alan (or his party) tried that - against McCain - in California. The judge tossed that case too. See http://docs.justia.com/cases/federal/district-courts/california/candce/3:2008cv03836/206145/39/0.pdf.

In short, the Robinson judge said: “Turning to the viability of the case at large, plaintiff has no standing to challenge Senator McCain’s qualifications. Plaintiff is a mere candidate hoping to become a California elector pledged to an obscure third-party candidate whose presidential prospects are theoretical at best. Plaintiff has, therefore, no greater stake in the matter than a taxpayer or voter.”

The judge then went on to explain the “proper” method for challenging the qualifications of a Presidential Candidate, pursuant to Constitution, Article 2, 3 U.S.C. 15, and Amendment 20 (See Opinion at 3-4).

The court concludes:
“It is clear that mechanisms exist under the Twelfth Amendment and 3 U.S.C. 15 for any challenge to any candidate to be ventilated when electoral votes are counted, and that the Twentieth Amendment provides guidance regarding how to proceed if a president elect shall have failed to qualify. Issues regarding qualifications for president are quintessentially suited to the foregoing process. Arguments concerning qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress. The members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates. Therefore, this order holds that the challenge presented by plaintiff is committed under the Constitution to the electors and the legislative branch, at least in the first instance. Judicial review — if any — should occur only after the electoral and Congressional processes have run their course.”

So — should be an interesting December.

You said -----That's actually rather depressing. So this judge says that the only procedure is that we vote in November, let the Electoral College vote in December, and then find out whether someone meets the constitutional requirements?????-----

Consider it empowering, not depressing. What this judge says is that each and every voter has the power to determine a candidate’s qualifications/eligibility: “Arguments concerning qualifications or lack thereof can be laid before the voting public before the election.”

In short, the Judge has taken the position that we voters don’t need a single judge to decide such an important issue. Rather, it is in our hands – the voters’ hands to evaluate the available evidence and make our own determination.

SECOND, according to the Robinson court, the Constitution places a “check and balance” on the voters’ decision: “Once the election is over, (lack of qualifications/eligibility) can be raised as objections as the electoral votes are counted in Congress.” The judge describes the process for raising and resolving objections in the Senate and the House. (Makes one realize how important the “downticket” elections are too, no?)

THIRD – then, and only then, according to the Robinson court, should judicial review occur.

I don’t see this as depressing at all. After all, isn’t it a core “conservative value” that a single judge (or set of judges) should not legislate from the bench or interfere with matters properly assigned to the electoral/political process?

Think about this for a minute. The current situation may make us want a judge to make this decision. But – what if the shoe were on the other foot: What if some liberal Texas judge actually ruled that McCain was not eligible for the presidency and, thus, could not be on the Texas ballot. What if that judge’s opinion was upheld by the appellate court and did not get to the Supreme Court for reversal before the election?

While it may be "convenient" in the current situation, I think such a precedent could be very very damaging to the political process established by the Constitution. To let judges determine eligibility for public elective office, in the first instance, would, I fear, create a “a clear and present danger” that the judiciary could totally take over the elective process. I’m leery of “slippery slope” arguments, but I think that in the long run, this would be a very dangerous thing.

It seems to me that the Robinson court’s ruling is consistent with this principle. Voters are granted the power, and the responsibility, in the first instance to determine who is most qualified. Here, voters who believe that Obama is not qualified or eligible to be president will not (and should not) vote for him. It’s really that simple. And that powerful.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.