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.