On Monday, May 2, the 9th circuit heard arguments in Drake v Obama, 09-56827, in Pasadena, California. C-SPAN carried the hearing, which lasted 51 minutes. This case was filed in U.S. District Court on January 20, 2009, and argues that President Obama (who had been sworn in that day) does not meet the constitutional requirements to be president. The plaintiffs are the American Independent Party’s presidential and vice-presidential nominees from 2008, Alan Keyes for president and Rev. Wiley Drake for vice-president.

All other lawsuits over presidential eligibility filed in the last three years were filed by people who were held to lack standing. There is some case law to support the idea that candidates running against Obama do have standing. However, it appears that the panel will find that Keyes and Drake should have filed their lawsuit early in 2008 in order to have standing, and that because they didn’t file until after the election is over, they were no longer candidates at that point and also lack standing. The three judges are Harry Pregerson, Marsha Berzon, and Raymond Fisher.

The attorney who represented President Obama, David A. DeJute, seemed to concede that if Keyes and Drake had filed this lawsuit several months before the election, they would have had standing. On an unrelated subject, he made a statement that is factually incorrect. He told the court that Ralph Nader, an independent presidential candidate in 2008, filed some lawsuits attempting to keep certain other presidential candidates (whom he did not name) off the ballot. There is no truth to this statement whatsoever.

When this case had been argued in U.S. District Court, it was called Keyes v Obama. At the 9th circuit hearing, attorney Orly Taitz represented Keyes, and attorney Gary Kreep represented Rev. Drake. Thanks to Bill Van Allen for this news.

On Sunday, May 1, the Mountain Party nominated Bob Henry Baber for Governor in the special election set for October 4, 2011. Baber is a former Mayor of Richwood. He will be the only person on the ballot, other than the Democratic and Republican nominees. The two major parties will soon choose their gubernatorial nominees in a primary election.

The Mountain Party chose to nominate by convention this year. It is the Green Party affiliate in West Virginia. See this story. Thanks to Independent Political Report for the link.

On May 3, the Alabama Senate Constitution, Campaign Finance, Ethics & Elections Committee passed HB 425. This is the bill that moves the primary for all office from June to the 2nd Tuesday in March. It has the effect of moving the petition deadline for minor parties and non-presidential independent candidates from June to March, because the existing law says those petitions are due on the date of the non-presidential primary.

As noted earlier, in 1991 the 11th circuit invalidated Alabama’s April petition deadline for new parties, and that case didn’t even involve a presidential election. Precedents against early petition deadlines for minor parties and independent candidates are stronger in presidential elections than they are in elections for other office. At the time of the 1991 decision, Alabama’s petition was 1% of the last gubernatorial vote; not it is 3% of the last gubernatorial vote.