Federal Court Holds Hearing on Lawsuit to Remove McCain from California Ballot

On Thursday at 7:30 a.m, September 11, U.S. District Court Judge William Alsup held a motions hearing in San Francisco in Robinson v Bowen, 08-cv-3836. The issue is whether John McCain should be removed from the November 4, 2008 ballot in California. The hearing lasted 50 minutes.

There have been two earlier lawsuits in federal court that also argued that McCain is not eligible to be president because of the circumstances of his birth. They were Inland Empire Voters v USA (in federal court in Riverside, California), and Hollander v McCain (in federal court in New Hampshire). However, those two cases were quickly dismissed on standing grounds, since the plaintiffs were ordinary voters (or a group of ordinary voters).

Robinson v Bowen is different, because it was filed by the state chairman of the American Independent Party, Markham Robinson (although that party has an internal factional dispute and Robinson’s office is not completely, permanently secure). Robinson is also a candidate for presidential elector, pledged to Alan Keyes. The leading precedent on who has standing to challenge the ballot access of a major party nominee is Fulani v Hogsett, 917 F 2d 1028 (7th cir., 1990). It said that Lenora Fulani did have standing to challenge the ballot placement of George H. W. Bush and Michael Dukakis, since their presidential elector candidates had been filed after the legal deadline in Indiana. Fulani was also on the ballot. She still lost the case on laches, since she had not filed it until eleven weeks after the Republicans and Democrats had failed to file timely.

In 1968, the California Supreme Court voted 6-1 that a presidential candidate who is not eligible to be president should not be placed on the ballot. Cleaver v Jordan, Calif. Supreme Court minutes, Sep. 26, 1968, case no. 7838, not reported. Thus if it were true that McCain were not eligible to be president, under the Eldridge Cleaver precedent, the California ballot should list a blank for president, and Sarah Palin for vice-president, for the Republican ticket. Of course, it is extremely unlikely that any federal judge would rule that McCain is not eligible to be president. There are scholarly articles on both sides of the issue, and the Robinson pleadings do attach one scholarly article that supports Robinson’s position. But the weight of authority is that someone born outside the United States, to parents who are citizens, is eligible.

The Robinson lawsuit notes that there is some controversy as to whether McCain was born in Colon, Panama (which was never part of the Canal Zone), or whether he was born in the Panama Canal Zone, but for purposes of the lawsuit, it assumes he was born in the Canal Zone.


Federal Court Holds Hearing on Lawsuit to Remove McCain from California Ballot — 20 Comments

  1. always was the “Republic of Panama”. The Canal Zone WAS NEVER U.S. TERRITORY. It was NEVER A U.S. POSESSION. Just under the control of the U.S. for monetary consideration – $10 Million in gold coin and $250k in said gold coin every year thereafter. This was a lend-lease agreement. Read the treaties:

    1903 Treaty (Teddy Roosevelt, President)

    1977 Treaty (Jimmy Carter, President)

    CONCLUSION: It doesn’t matter if McCain was born in Colon or Canal Zone proper. He was still born OUTSIDE the U.S. and is therefore NOT “natural born.” He attained his citizenship automatically via his parent’s citizenship, and is thus a natural born Panamanian and a naturalized U.S. citizen. NOT ELIGIBLE FOR THE PRESIDENCY !!

    “Colon, Panama (which was never part of the Canal Zone), or whether he was born in the Panama Canal Zone, but for purposes of the lawsuit, it assumes he was born in the Canal Zone.”

  2. Jeff: Did you read the last two paragraphs of Richard’s article? Your “conclusion” has nothing to do with what the case is about.

  3. If anyone’s post doesn’t get posted, just try again. I don’t know why the system doesn’t automatically put all posts on. A tiny handful get into a queue for me to approve them, and I always approve any comment that needs my approval unless it is nothing more than cussing out some other individual.

  4. Wrong, Jeff Becker.

    If the Zone wasn’t US territory than McCain is a natural-born citizen by his parents’ citizenship.

  5. “But the weight of authority is that someone born outside the United States, to parents who are citizens, is eligible.” Richard, what are the qualifications for the parents as citizens? Would a couple who became naturalized citizens after the required five years in the U.S. who then had a child back in their country of origin qualify? If so, that child could live in that country through their 21st year, then come to live in the U.S. and run for President at the age of 35.

    Personally–yes, I know I’m full of half-assed ideas!–I’ve always thought that the requirement to be a natural born citizen is just the result of people not knowing how commas are used to create subclauses. (See end of post for the words of the Constitution.)

    The subclause is “at the time of the adoption of this Constitution” NOT “or a citizen of the United States”.

    That second comma is the giveaway–if it WASN’T there, then you could take out what is enclosed and it would read No person except a natural born citizen shall be eligible to the office of President.

    As it stands, WITH the second comma and the resulting subclause that follows it removed, it reads No person except a natural born citizen, or a citizen of the United States shall be eligible to the office of 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; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

  6. Actually the parents both being citizens didnt matter in that era. In fact many such individuals, such as military, had to naturalize their children and thus this issues was brought up back then given changes in the statutes that kept happening to fix and refix these problems. But during his birth the statutes and rulings would be against him to be only naturalized..sad but true.

  7. And the other way to slice that cheese is to say “or a citizen of the United States” IS the subclause, in which case it reads: No person except a natural born citizen at the time of the adoption of this Constitution, shall be eligible to the office of President.

    Then the next part following the semicolon delineates the qualifications required for all circumstances, i.e. at any time after the Constitution has been adopted.

  8. Voters vote for Art II – 12th Amdt Electors — NOT a Prez candidate.

    If and when a Prez candidate is allegedly chosen by such Art II – 12th Amdt electors or the 12th Amdt House of Reps. BUT who is NOT qualified, then there will be a real case.

    The *natural born* stuff has to do with ALLEGIANCE to a regime at the instant of birth.

    Sorry – if a gang of pirates or terrorists or wartime enemy aliens drop off their 9 month pregnant slaves into the U.S.A. area, then would the kids born be *natural born* U.S.A. citizens ??? Duh.

    This is one more mess due to the party hack Supremes in their typical moronic screwing up of BASIC stuff.

  9. On 4 July 1776 the ex-subjects of the British Empire who resided in the new 13 States became U.S.A. citizens.

    That political fact produced the temporary language —

    *or a citizen of the United States, at the time of the adoption of this Constitution*

    The *been fourteen Years a resident within the United States* obviously meant a long time resident going back to 1774-1775 — The Constitution took effect on 4 Mar 1789.

    This stuff AIN’T atomic physics except to the party hack MORON Supremes — who mystify everything since they are party hack MORONS.

  10. roselea, that argument is hogwash.

    It was written that way by the Committee on Style, and approved by the Convention, to indicate that either a natural born citizen, OR a citizen of at the time of adoption of the Constitution, was eligible. A lot of citizens in 1787 were not natural-born yet, since the nation was only officially 11 years old.

    If your argument is accurate, and it’s not (for it to be accurate the comma before the “or” would be gone), then only those natural-born or citizens when the Constitution was ratified, and none thereafter, would be eligible. That makes no sense at all.

    You’re getting verb object subclauses and modifying prepositional clauses mixed up here, and the “at the time of adoption” is a prepositional subclause. According to the rules of the English langauge back then and now, the prepositional clause applies its modification to the nearest object clause or subclause–in this case, “a citizen of the…”

    Or at least that’s what my PHD English professor with 50+ years experience told me.

  11. jus sanguinis, or bloodline of parents, has no bearing on citizenship. Never has. Ask the State Department. I did.

  12. Reading all of the back-and-forth on this issue this
    year, I’ve not seen anything about other precedents
    regarding Citizenship that might apply. If I make a
    mistake in laying this out, somebody PLEASE correct
    my error(s). First off, in 1917 Congress granted full
    citizenship to the residents of Puerto Rico. It didn’t
    do the young men any favors there as many of them all
    of sudden were drafted into the Army & Navy to serve
    in WW1.

    Then during the 1920’s the various Indian Nations,
    tribes and other groups were granted citizenship. At
    that same time the hereditary & elected Chiefs became
    President of their people. Many of whom have served
    with great distinction in the U. S. military. At this
    time, these United States are made up of 50 States and
    6 Dependencies which have varying relationships with
    the Federal Government. All legal residents born in
    those areas are Citizens except for American Samoa.
    Anyone born there is an American National and so it
    would seem ineligible to serve as U. S. President.
    This is in recognition that Samoa still has hereditary
    Chiefs and the people travel back-and-forth between
    American Samoa and Western Samoa

    Furthermore, Mitt Romney’s father George was a serious
    Republican candidate in 1968 and the issue was brought
    up that since he was born over-seas while his parents
    were on missionary work it wasn’t clear whether or not
    he could serve as President. I don’t know the case #
    but I do remember it going his way. Although one can
    argue that since McCain’s dad was “working” for the
    United States when he was born he should be granted
    automatic citizenship.

    There is another problem with these suits. If a Court
    is disinclined to really look at the issue they can
    decline to accept the case when someone appeals an
    adverse ruling. It might prove interesting to see what
    reason they give for NOT hearing the case.

    Let’s look at the other side of this issue. There is
    absolutely no question that Obama’s father never was
    an American citizen. So he would gain his citizenship
    from his mother who was married at his birth. However,
    considering how young she was then, was she legally an
    adult? Before the 26th Amendmant was adopted there were
    situations where someone was not viewed as an adult
    until they turned 21. Let’s say for arguements sake
    that a valid case could be made that Obama cannot serve
    as President. Does anyone here honestly think any Court
    of competent juridiction would even accept this case?
    Again, it would be fun to read the self-serving reason
    given to reject that case.

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