This could get ugly – quickly.
Here’s the full deal for SCOTUS (it is lengthy):
SCOTUS could TOTALLY IGNORE the issue and refuse to hear the case, citing lack of standing, but I think that they won’t. If they ignore this, then they might as well throw the Constitution out the window. It wouldn’t be worth the paper its written on. Anyone could then thumb their nose at the Constitution. I think they have to hear the case and demand the birth certificate.
Assuming Obama is found ineligible:
1. If BEFORE the Electoral College meets, McCain’s electors from all States would be seated (since Obama would not have been qualified) and the vote would be 538-0 (Article II, Section 1, Paragraph 3). This would happen because Obama would not have been qualified to run in the first place. Biden might be VP since the 12th Amendment provides for the separate election of POTUS and the VP. SCOTUS MIGHT rule that Biden’s election was valid. Biden would be eligible and his electors would elect him. Thus, a McCain/Biden term. If SCOTUS ruled the entire Obama/Biden ticket invalid, then Palin would become VP (Article II, Section 1, Paragraph 3 and the 12th Amendment). Palin’s electors from all States would be seated (since the Obama/Biden ticket would not have been qualified) and the vote would be 538-0. Thus, a McCain/Palin term.
2. If AFTER the Electoral College meets and certifies him, but BEFORE inauguration, the 20th Amendment provides that, if before the time fixed for the beginning of his term, the President-Elect shall have failed to qualify, then the Vice President-Elect shall act as President until a President shall have qualified. The same scenario as in (2), above, would then likely apply.
3. If AFTER inauguration, the 25th Amendment would apply and Biden would be President and choose his VP (with Senate confirmation). However, McCain might be able to sue – based on fraud and demand that the scenario provided in (2), above, be applied. Or, barring that, a new election.
4. Of course, SCOTUS could decide to avoid (1), (2), and (3), above, by declaring a fraudulent election and ordering a new one with verified eligible candidates. This would necessitate the implementation of Continuity Of Government laws – allowing Bush to remain POTUS until the election. Probably with the caveat that no new laws be passed in the interim.
I believe that the SCOTUS would be obligated by the 20th amendment to allow the Vice President elect to become President. If the democrat ticket was disqualified then we could possibly have a President Palin? until a special election per your number 4 scenario.
This could get very ugly. I don’t understand why we are at this point. If Obama were leagally qualified to run and serve as President, all he would need to do is release his Certification of Birth. This should be a no-brainer. Why is he stone-walling UNLESS he was relying on the fact that his mother was a US citizen and he wasn’t aware of the 5 year residency requirement after his birth. I am beginning to believe that he IS NOT a qualified candidate for the office. Why pay for attorneys when all you have to do is produce the certificate. It was also a good move on the part of Hawaii’s governor to seal the certificate so there can be no switching or tampering with it. This helps preserve some chain of custody.
The other issue that I find fascinating is the standing of Joe Biden. Technically, he can’t show a vote total that was cast DIRECTLY for him. All he can show is the total of all votes cast for the “ticket” but an argument can be made that a vote FOR Obama may not be necessarily a vote FOR Biden.
I’m not sure how McCain’s electors could be seated unless you are presenting the argument that they (McCain/Palin) are the only qualified candidates on the ballot. Further, the same problem with Biden’s standing could carry over to Palin.
It could be a VERY LONG TIME before this is resolved, assuming the SCOTUS even hears the case. AND, would there likely be charges filed against Obama for being an unqualified Senator?
I think it is an interesting Constitutional question.