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Kerchner Eligibility Lawsuit Dismissed on Standing
U.S. District Court, New Jersey ^ | 10/21/2009 | Judge Jerome B. Simandle

Posted on 10/21/2009 9:02:35 AM PDT by BuckeyeTexan

United States District Court Judge Jerome B. Simandle has dismissed the Kerchner v. Obama lawsuit challenging President Barack H. Obama's eligibility to hold the office of President of the United States.

"The Court finds that Plaintiffs Charles F. Kerchner, Jr., Lowell T. Patterson, Darrell James LeNormand, and Donald H. Nelsen, Jr. lack standing to pursue their claims and so the Court must grant Defendants’ motion to dismiss."

Judge Simandle's full opinion is at the link.


TOPICS: Front Page News; News/Current Events; Politics/Elections
KEYWORDS: apuzzo; birthcertificate; birthers; certifigate; eligibility; kerchner; naturalborncitizen; obama; obamatruthfile
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To: Red Steel; jamese777
Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

It seems to me that there is in fact a time limit. I believe that the phrase "shall have failed to qualify" is a reference to the joint session of congress where objections are heard in the confirming of the electoral ballots. There is no other opportunity to verify "qualifications" of a "President elect" in the process. And james, I see no reason for Congress to invoke the 20th amendment at this point because it would be an admission that they failed in their duties on the 8th of January. I do not know how we get Congress to act against itself.

The question is at present, is he the President,(I think he is) and how could he be removed?(Impeachment in January of 2011)

221 posted on 10/22/2009 9:32:29 AM PDT by GregNH ("Dc Rally from the Ground" by me http://gwgjlm.blogspot.com/2009/09/dc-rally-from-ground.html)
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To: AmericanVictory
Why is a judge entitled to determine the chances of a political candidate?

The judge is empowered to rule on the question of whether the plaintiff has standing to sue or not. Loss in an election where the plaintiff had zero chance of winning to begin with should not constitute real damages.

222 posted on 10/22/2009 9:37:09 AM PDT by Non-Sequitur
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To: El Gato
Point is, it's specualtion either way. A "what if". Barrack Hussien Obama denied Keyes the opportunity to find out. To collapse the wave function as it were.

No, it's opinion based of a rational analysis of the facts. Keyes wasn't going to win, Obama or no Obama. He was on the ballot in 4 states only.

223 posted on 10/22/2009 9:42:13 AM PDT by Non-Sequitur
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To: AmericanVictory
So the judge was able to prognosticate that if he won those states it would have made no difference if it caused McCain to win them?

Let's put it this way. Cynthia McKinney has a better claim that Obama cost her the election by being on the ballot than Alan Keyes does. And Keyes has a better case of saying McKinney cost him votes by being on the ballot than Obama did.

224 posted on 10/22/2009 9:49:52 AM PDT by Non-Sequitur
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To: GregNH
So would the parents of a dead soldier, or an injured soldier, have standing?

I'm not a lawyer, so I can only give my non-professional opinion: no, they wouldn't have standing.

The "harm" in the case of the dead or injured soldier would have to be proven to have been directly caused by Obama's alleged ineligibility, which is the main complaint in these lawsuits.

You can believe that a soldier was killed or injured due to Obama's policies (or lack of policies), but it would be impossible to prove that those policies were caused by his ineligibility (rather than his extreme leftist a**-holiness). But you can't sue on the basis of a**-holiness, and you can't prove that another leftist (Hillary) wouldn't have the same a**-hole policies.

225 posted on 10/22/2009 9:50:35 AM PDT by browardchad ("Everyone is entitled to his own opinion, but not to his own fact." - Daniel P Moynihan)
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To: kukaniloko; DannyTN; All

Obot exposed — kukaniloko

See here for more:

http://www.freerepublic.com/focus/bloggers/2365423/posts?page=150#150
- and -
http://www.freerepublic.com/focus/bloggers/2365423/posts?page=156#156

Free Republic: kukaniloko, since Oct 10, 2009.

CONGRATULATIONS — you’ve been OUTED.
Photobucket
You’ve earned the official label of TROLL.


226 posted on 10/22/2009 10:03:21 AM PDT by BP2 (I think, therefore I'm a conservative)
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To: GregNH

Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
It seems to me that there is in fact a time limit. I believe that the phrase “shall have failed to qualify” is a reference to the joint session of congress where objections are heard in the confirming of the electoral ballots. There is no other opportunity to verify “qualifications” of a “President elect” in the process. And james, I see no reason for Congress to invoke the 20th amendment at this point because it would be an admission that they failed in their duties on the 8th of January. I do not know how we get Congress to act against itself.

The question is at present, is he the President,(I think he is) and how could he be removed?(Impeachment in January of 2011)


I agree with you that the Judicial Branch is unlikely to step into this fray when there was a legislative remedy available that was not utilized by Congress. Strict constructionist/originalist federal judges tend to take separation of powers seriously.

Even in January, 2011 there wouldn’t have been enough Democrats up for reelection in the Senate to result in a 2/3rds Republican majority needed to remove Obama via impeachment. There is no way for the Republicans to go from their current 40 votes to the 67 needed for conviction.

Remember that every Senate Democrat and ten (or 5 on one article) Republicans voted William Jefferson Clinton to be found not guilty.


227 posted on 10/22/2009 10:18:59 AM PDT by jamese777
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To: BP2; kukaniloko
Cool self-portrait, BP2.

Congratulations, kukaniloko, you've been deemed a troll by the insane one!

228 posted on 10/22/2009 10:19:14 AM PDT by browardchad ("Everyone is entitled to his own opinion, but not to his own fact." - Daniel P Moynihan)
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To: browardchad; All

La seule chose aliénée est votre idolâtrie d'Obama.

Déplacez-vous le long avant que punk d'I vous aussi, amie.

Photobucket

229 posted on 10/22/2009 10:27:32 AM PDT by BP2 (I think, therefore I'm a conservative)
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To: El Laton Caliente

Good question.


230 posted on 10/22/2009 10:29:35 AM PDT by Poe White Trash (Wake up!)
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To: MortMan

Can you reconcile the “having failed to qualify” language of the succession amendment with your “fait accompli” interpretation?

The mechanism for policing this amendment was left up to the wisdom and moral turpitude of congress, apparently. This was obviously a serious mistake, given what congress (the opposite of progress) has become.


“Failed to qualify” means having failed to have received the requisite number of electoral college votes to be elected.
The following is from the “US Constitution Online” website:
Constitutional Topic: Death of a Presidential Candidate

“As morbid as it seems, one of the most common questions to be asked of this site is what happens if a presidential candidate dies? Though it does seem morbid, it is an important question. One of the most important features of a successful democracy is peaceful transition of power. By anticipating unfortunate but possible circumstances, the Constitution and U.S. law tries to ensure that the most powerful position in American politics has a contingency plan.

The answer is a complicated one, but very definitely defined - there are, in other words, bookends for the question. One bookend is the inauguration of the president and the vice president. Once the president-elect and the vice president-elect are sworn in, the line of succession kicks in.

Before the election

The other bookend is less solid - it is the election itself. When voters cast their votes in November, they are not actually casting votes for a specific person. Instead, they are casting votes for electors, persons chosen by the candidates’ parties to attend a gathering of all electors in each state capital, where they cast the votes that officially elect a president.

If a presidential candidate dies after the party convention and before the election, particularly before ballots are printed, the party can select a new person to represent the party on the ticket. The choice will depend on the party’s own rules. As the election nears, the situation gets more sticky, because elections take time to plan. Practically speaking, ballots must be printed, and if there is not enough time to do that, the election can still go on, though with the name of a now-dead candidate on the ballot - state law should dictate how such ballots would be handled. Vermont law (17 VSC 2475), for example, states that new ballots will be printed - but if the death occurs near enough to Election Day, it may not be possible to print new ballots.

While near-election death might be a problem for a Senator or a judge, where the voters are electing a specific person, in the case of the presidential election, the buffer of the electoral college would allow the election to continue.

After the election

While it may seem odd for voters to cast their ballots for someone who has recently died, if the death should occur after the election, but before the electors cast their ballots on Elector Day, the onus will fall on the electors. Constitutionally, the electors are always able to exercise their judgement when they cast their ballots, though except on rare occasions, they always vote for whomever the presidential candidate is. In the event of a death, the party will choose an alternate candidate for the electors to vote for, and direct the electors to do so. The electors will have to make their own decision if they wish to stick with the party’s choice or not.

At this point a question may arise: What if one of the electors dies? This eventuality should be anticipated by state law. For example, in Vermont, on Elector Day, the assembled electors choose an alternate at the time of the meeting. The elector so-chosen then submits his or her vote with the other electors (17 VSC 2732).

After the electors vote

Once the electors’ votes are cast, the votes are bundled and sent to Congress. It is here, if the candidate dies after the electors vote, that the election can really turn on a dime.

The votes for president are sent to the House to be counted, while the votes for the vice president are sent to the Senate for counting. Any ballot which is invalid would not be counted - and a ballot cast for a person who is dead would not be considered valid. In this case, if the dead person was the winner of the electoral votes cast, and assuming a normal two-party election, the person with the most valid electoral votes would be the person who actually received the lower portion of the electoral votes.

After the electoral votes are counted

After the electoral votes are counted, there will most likely be an official president-elect. The only exception is if there is not clear majority in the electoral votes, and the vote devolves to the House.

Once the president-elect and the vice-president elect have been selected, the 20th Amendment kicks in. Specifically, if the president-elect dies, the vice president-elect will become president on Inauguration Day. After that, the new president will select a new vice president using the procedures in the 25th Amendment.

These procedures are all in place to ensure the peaceful and orderly transition of power from one administration to the next. Hopefully, none of these procedures will ever have to be put into practice.

Precedent

One of the best indicators of how an event will be handled in the future is how it was handled in the past. There have not been, however, any examples of the death of a presidential candidate in the modern era, since the passage of the relevant amendments, the 20th and 25th.

However, in 1872, the Democratic/Liberal Republican candidate Horace Greeley died after the election and before the electors voted. Greeley, who was running against popular Republican incumbent Ulysses Grant, only earned 44 percent of the popular vote and 18 percent of the electoral votes. His party, in other words, had lost the election.

After Greeley died, the electors from the states he did win decided to split their votes between four others from the Democratic Party and the Liberal Republican party. Greeley also received three electoral votes, but since he had died, the three votes were not counted. With a total of 352 electoral votes, Grant needed to win at least 177 to have a clear majority. After the three Greeley votes were disallowed, Grant needed to win 175 votes to have a clear majority. He, however, got 286 votes, rendering the change in the count moot.

The 1872 election was also notable because Greeley’s vice presidential candidate, Benjamin Gratz Brown, won 47 electoral votes in the vice presidential tally, as well as 18 in the presidential tally. Rival Thomas Andrews Hendricks, however, garnered most of Greeley’s votes, receiving 42. Thus not only is Brown one of the few people to get votes in both columns, but even though he was Greeley’s running mate, he was not able to get all of Greeley’s votes.


231 posted on 10/22/2009 10:34:48 AM PDT by jamese777
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To: jamese777
“Failed to qualify” means having failed to have received the requisite number of electoral college votes to be elected.

I'm sorry, but that does not match the plain language of the amendment. To wit:

3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Let me repeat the operable phrase: If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified;

The requisite number of electoral votes is an element of choosing, which is clearly a separate concern from qualifying as expressed in the above.

So, once again, please reconcile "having failed to qualify" with "he got away with it because nobody asked".

232 posted on 10/22/2009 11:01:41 AM PDT by MortMan (Stubbing one's toes is a valid (if painful) way of locating furniture in the dark.)
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To: GregNH
It seems to me that there is in fact a time limit. I believe that the phrase "shall have failed to qualify" is a reference to the joint session of congress where objections are heard in the confirming of the electoral ballots. There is no other opportunity to verify "qualifications" of a "President elect" in the process. And james, I see no reason for Congress to invoke the 20th amendment at this point because it would be an admission that they failed in their duties on the 8th of January. I do not know how we get Congress to act against itself.

I'll take same tack that After-Birthers use, what is a natural born citizen? Define "beginning of his term". Has that Constitutional clause ever been defined by the courts? Is it defined in the US Constitution? Where is it defined? What is the beginning of term? It could be as far out as 2 maybe 3 years. Congress could use a liberal view on what it means.

Yes, Congress in all likelihood would not admit that they failed in their duties and would have to be compelled by the courts to remove an usurper after he was found to be illegitimate and made impotent. The courts could stop short in the actual removal by leaving that task for Congress. It's an untenable situation. Congress would be left with no choice but to remove Obama. The courts could leave Congress a thinly face saving act with impeachment and trial.

233 posted on 10/22/2009 11:03:07 AM PDT by Red Steel
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To: MortMan; jamese777
"Can you reconcile the “having failed to qualify” language of the succession amendment with your “fait accompli” interpretation?"

First, it's not the so-called succession amendment which contains the phrase "President elect shall have failed to qualify", it's the 20th Amendment - the one that deals with term limits.

Be that as it may, Obama (and Biden for that matter) haven't failed to qualify. How do I know this? Because, they were BOTH certified by the Congress following the procedures spelled out in 3 USC 1. I know, because I watched it LIVE on FNC, when it happened. If Cheney acting as the President of the Senate, and the other relevant members of Congress failed to certify Obama's election in the Electoral College, then we'd have a problem. But, they didn't.

So, you're arguing this didn't happen? It was all some kind of performance art, where Dick Cheney himself was the starring attraction? Because, that's the only thing that could account for Obama not being certified by the Constitutional and statutory requirements found in US law.

Incidentally, the Constitution and relevant statutory law gives the Judiciary absolutely NO oversight with respect to this certification process. And yet, some people who describe themselves as Conservatives wish to have the Judiciary carve themselves out a nice piece of authority (the largest Judicial power-grab since Marbury v. Madison, no less) based on absolutely nothing other than their personal displeasure over the results of a Presidential election. It's unbecoming for a conservative.

234 posted on 10/22/2009 11:08:15 AM PDT by OldDeckHand (No Socialized Medicine, No Way, No How, No Time)
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To: OldDeckHand; jamese777

ODH, your lecture is out of place. I asked a question, and am willing to debate the answer, and you spout off with a diatribe about my motivations - which you neither know nor understand.

You are correct - it is the 20th amendment, not the “succession amendment” as I incorrectly identified it.

You miss the point that qualification is not the same as certification. Being qualified is a matter of being, where as certification is a matter of avowing the state of qualification - whether by the candidate or by an outside authority (such as congress).

Is it your explicit opinion that the judiciary has no role in the adjudication of the meaning of this amendment? That is curious, as it was my understanding that the judiciary’s role was explicitly to interpret the law.


235 posted on 10/22/2009 11:20:20 AM PDT by MortMan (Stubbing one's toes is a valid (if painful) way of locating furniture in the dark.)
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To: BuckeyeTexan
Up until last year, I used to laugh at those who subscribed to conspiracy theories, but now I've changed my tune.

Who the #^$@ has "standing"? Doesn't the Constitution matter any more? The truth only matters if it's a benefit to the Rats politically. If truth doesn't benefit them or poses a risk to their stranglehold on power, then you have no "standing." Pathetic!

236 posted on 10/22/2009 11:29:58 AM PDT by thecraw (God allows evil...God allowed Hussein...Lord willing he'll give us Sarah to clean up the huge mess.)
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To: MortMan
You miss the point [OldDeckHand] that qualification is not the same as certification. Being qualified is a matter of being, where as certification is a matter of avowing the state of qualification - whether by the candidate or by an outside authority (such as {congress).

Yes, countless times people have been certified in jobs who actually lied about their qualifications. If they had not lied about their qualifications, they would not have been sanctioned with state certification.

237 posted on 10/22/2009 11:38:20 AM PDT by Red Steel
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To: Non-Sequitur

Your usual sophistry. Judges should not be in the business of making decisions based on their estimates of candidate success. You can put it that way and you did, and it is quite revealing.


238 posted on 10/22/2009 11:41:52 AM PDT by AmericanVictory (Should we be more like them or they more like we used to be?)
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To: AmericanVictory
Judges should not be in the business of making decisions based on their estimates of candidate success.

But judges are in the position to rule on whether or not a plaintiff meets the requirements for establishing standing; if they have, in fact, suffered any actual damages. My expectation is that Judge Carter will find that Keyes did not.

239 posted on 10/22/2009 11:50:53 AM PDT by Non-Sequitur
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To: OldDeckHand
"based on absolutely nothing other than their personal displeasure over the results of a Presidential election."

I personally have been screaming about [his] "qualifications" for almost two years now, as are some if not most of people trying to get this resolved.

240 posted on 10/22/2009 11:55:27 AM PDT by GregNH ("Dc Rally from the Ground" by me http://gwgjlm.blogspot.com/2009/09/dc-rally-from-ground.html)
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