New Lawsuit Filed To Stop California Electoral College

Former presidential candidate Alan Keyes joined the fight to release President-elect Barack Obama's birth certificate this week, suing to keep the California Electoral College from meeting.

The suit is the latest of many lawsuits filed requesting the birth certificate, a document that Mr. Obama has so far refused to produce in court. The lawsuit, filed by Mr. Keyes and the American Independent Party (AIP) in the California Superior Court in Sacramento, requests the court to bar the secretary of State from certifying the names of electors to Gov. Arnold Schwarzenegger, R-Calif., and from transmitting a certificate of election each presidential elector.

"I and others are concerned that this issue be properly investigated and decided before Sen. Obama takes office," said Mr. Keyes in an AIP press release. "Otherwise there will be a serious doubt as to the legitimacy of his tenure. This doubt would also affect the respect people have for the constitution as the supreme law of the land. I hope the issue can be quickly clarified so that the new president can take office under no shadow of doubt. This will be good for him and for the nation."

The Electoral College will meet in each state capital to cast its votes on Dec. 15. Dec. 1 is also an important debate in the controversy, as Mr. Obama must respond to a federal case in the U.S. Supreme Court by that date, which will be heard by Justice David Souter, a jurist with a liberal reputation.

Mr. Keyes, an ambassador during the Reagan administration, was a presidential candidate in 2008 for the AIP. Mr. Keyes also ran against Mr. Obama for a U.S. Senate seat in 2004, losing to Mr. Obama by a wide margin.

The controversy over Mr. Obama's birth certificate has been boiling on the news periphery for months. Over the summer, Mr. Obama put an electronic scan of a birth certification on his "Fight the Smears" Web site in an effort to quiet rumors. The document has been unconvincing for his critics, due to flaws in the scan and its low quality. The raised seal and authoritative signature needed to validate the document cannot be seen on the scan at all.

According to the U.S. Constitution, there are distinct requirements to become president.

"No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of president," it reads.

In Pennsylvania, attorney Philip J. Berg filed a suit against Mr. Obama and the Democratic National Committee in August, in the hopes that Mr. Obama would produce his original birth certificate. Mr. Berg asserts that Mr. Obama was born in Kenya.

The case was thrown out of the Third Circuit Court in November because the judge ruled Mr. Berg had no standing to enforce the presidential requirements of the Constitution. Mr. Berg has since requested the U.S. Supreme Court hear the case, and Mr. Obama has until Dec. 1 to file his request that the court not hear the case. Once he has responded, the Court will rule on whether or not the case will be heard.

The Hawaii Department of Health says the original birth certificate is in its vaults, but refuses to release it on the grounds of Hawaii's privacy statutes. According to the statutes, only somebody with "direct and tangible interest" may access the birth records. This usually means that only Mr. Obama, his family, or somebody designated by him could access the document.

Longtime Obama critic Andy Martin is pursuing his own lawsuit to produce the birth certificate against the Hawaii Department of Health, arguing for the certificate's release. Hearings were heard in court on Tuesday, and Mr. Martin said the arguments were spirited.

"We had about a half-hour hearing," said Mr. Martin on his blog (http://contrariancommentary.blogspot.com). "Both the attorney general and I vigorously presented our respective positions. ... I have ordered a transcript of the hearing and as soon as it arrives we will post it on our blogs ... Rather than characterize what was said, I will allow everyone to review the presentation for themselves."

National “Ask Alan”/AIP conference call
Tuesday, November 18, 2008
Opening remarks

Alan Keyes:

Thank you very much. I thought what I would do this evening is just take a minute or two and explain in a very simple way what I have been involved with in the last couple of weeks. We have talked about it a little bit on the calls before. You’ll notice that I lent my name to a couple of the suits that are taking place to try to determine whether Barack Obama is in fact a natural born citizen. And just so that there would be no misunderstanding—and I did try to make this clear in the press release that we had issued about the case I got involved with in California—I guess I am not, myself, having looked over all of the facts and evidence and things that people have graciously sent to me and did in the course of the last several weeks, I am not sure I am able to reach a conclusion as to what the facts are.

But what has appalled me, I guess, even as I have read the transcript of court decisions and things like that that have been taken up to this point, is the notion that somehow or another, step number one, citizens don’t have standing to ask him, even though the Constitution is a document that speaks for “we the people.” When people go to the polls to vote, presumably they have both an obligation to respect the Constitution—I think in Florida, for instance, people actually have to take an oath to do so—and the expectation that it will be followed. Therefore, as a whole people, we have a critical interest in making sure that the supreme law of the land, as expressed in the Constitution—which gives proper basis and procedure to our sovereign will as the people of the United States —be followed. And yet, there has been an almost casual assumption, including, I think, the judge in the Berg case who was arguing things about the electorate having made a choice, and so forth and so on, as if any given instance of the majority overrides the Constitution. And I find it kind of incongruous that you would have this kind of an attitude coming from the bench, since the whole notion of judicial review, which they constantly are exercising, is based on the idea that an instance of majority will, whether it’s a legislature deciding on a law, or any other instance of a majority vote, that that instance of a majority will does not override the Constitution of the United States.

And this is something that has been clear: that you have a duty to follow the Constitution, that the judges, if they see in a law something that conflicts with the Constitution, have to therefore follow the Constitution, not the will of the majority as expressed through their representatives, or even as directly expressed in some electoral contest. No. Because, as Hamilton argued in Federalist 78—and I want to read this, because I think it is very important—“A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both.”

And of course, in the Constitution itself, by the authority of the people, a procedure is put down for amending the Constitution—that is, for changing its terms—and unless that procedure is followed, the sovereign will of the people as expressed in the Constitution is the supreme law and must be followed. That is so simple. It is so clear. So, in this particular case, the Constitution says that in order to be eligible for the presidency, you’ve got to be a natural born citizen. If, on account of the incompetence of the party system, or its corruption, or whatever may be the reasoning, an individual happens to win a presidential election who turns out not to be qualified, then the Constitution still has to be followed. The idea that it does not I think is a dangerous situation for the whole country, because it suggests that somehow or another, on the basis of this or that majority will, as expressed in this or that way, the Constitution becomes a dead letter. And then you ask yourself, what becomes of the fundamental rights, for instance, in the Bill of Rights if the Constitution becomes a dead letter when a given majority wants to run roughshod over the rights of a minority?

What if that attitude had been taken during the course of the argumentations and struggles in the Civil Rights movement, in the women’s rights movement, and in all kinds of things that have ultimately depended on the assumption that there is an understanding of justice—as articulated in the Constitution, as expressed in our understanding of basic, unalienable rights—that has to be followed, even by the majority?

In order to maintain the Union, which allows us to go through elections and sit back and say, “Well, we didn’t win this time, but we’ll wait for the next time,” what we are trusting in, what we are giving credence to, what we are lending authority to is not the will of the majority: it is the Constitution of the United States. You take away the authority of the Constitution, as expressed through that transcendent will of the people, and what have you got in any given instance of a majority vote? You’ve got a majority imposing its will on a minority that may or may not be willing to accept that will. For the sake of what do the folks who lose the vote accept the result? Well, for the sake of the Constitution, to which we all bear allegiance. Once you have destroyed the notion that that Constitution must be respected, you have introduced the country into a very dangerous state, in which individuals who are disgruntled with the way things are going and the way the majority decides, and the way “this and that—,” they no longer say to themselves, “Well, we are all part of a Union, based on our commitment to the Constitution and its basic respect for human rights that it represents,” no, that is no longer binding. They are left to say, “The only thing that binds us is force, and therefore, if you come to force me to accept your will, then I’ll oppose you by force, and we’ll see what happens.” Do we want that in this country? I think not.

I guess it’s my hope that regardless of how the facts fall out, the only interest in all of this ought to be to ascertain the fact. If that fact is in accordance with the Constitution, fine. We’ll do what we always do. We’ll accept the result, and we’ll go on trying to build, as we are building through this effort that Tom and others are making. You start to work in political life, you build an alternative so that people can, by the means provided for in the Constitution, continue to work for the things that they believe in. I think that is what we all believe.

On the other hand, if the facts are not in accordance with the Constitution, then I would presume that those in authority would understand it to be their obligation to follow the Constitution, so as not to undermine the sense of its authority, the allegiance to that authority, which I think at the end of the day has, in the course of this country’s history, preserved us from the kind of turmoil and difficulties that often arise in other societies on account of political competition.

I think that this is something that has been understood in America since the very earliest years of the republic: that our commitment to and allegiance to the Constitution is vitally important to the Union and the peaceful work that we do together as citizens in the same county. And I would sincerely hope that judges on the federal bench, or on the Supreme Court, or wherever it might be, will feel deeply their responsibility to this tradition, and will not only make a decision that is in accord with the facts, but will be seen to make it in accord with the Constitution, so that whatever comes out of this, it will affirm the fact that we are still a people sovereign through this constitutional instrument, and respecting that fact, rather than trying to move down a road that, at the end of the day, would begin as majority tyranny, but would end as some form of oligarchy, party dictatorship—call it what you will, it would be the end of democratic self-government.

And so, that is my thinking, as I have participated in this effort. And I think that the question has been raised, the facts are not clear, and that those officials who have sworn allegiance to the Constitution owe it to the Constitution and to the people of this country to deal with this issue with integrity and expeditiously, so that we can clear the air and get on with the great business of this country. So, that is what I had to say tonight. Thank you.

http://www.aipnews.com/talk/forums/thread-view.asp?tid=973&posts=36#M3414

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