GA Plaintiffs file U.S. Supreme Court Petition for Writ of Certiorari

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i

QUESTIONS PRESENTED FOR REVIEW

Question #1:

Does the right to associate force states to

accept any candidate from political parties for

presentation on state primary ballots when such a

candidate does not meet the minimum legal

qualifications for the office sought, thereby negating

state election laws and state control of elections?

Question #2:

Are all individuals born on U.S. soil Article II

“natural born citizens,” regardless of the citizenship

of their parents?


ii

PARTIES TO THE PROCEEDING

Pursuant to Rule 14.2(b), the following list

identifies all of the parties appearing here and before

the Georgia Supreme Court, Georgia Superior Court,

and Georgia Office of State Administrative Hearings.

The Georgia Office of State Administrative

Hearings consolidated four cases filed with that

office by eight individuals. The Georgia Superior

Court and Georgia Supreme Court thereafter treated

the consolidated case as one action for purposes of

appeal.

The petitioners here and appellants below are

David Welden, Carl Swensson, and Kevin Richard

Powell, all three of whom are individuals residing in

Georgia. The other appellants below, David Farrar,

Leah Lax, Cody Judy, Thomas Malaren, and Laurie

Roth are not parties to the instant petition.

The respondent here, and appellee below for

all cases, is Barack Obama. Mr. Obama was and is

named in his private capacity as a candidate for the

Office of President of the United States of America.1

1 Hereinafter this Petition will refer to the respondent,

President Obama, also known as Barack Hussein Obama Jr.,

Barack Obama II, and Barry Soetoro, as “candidate Obama.”

This reference is not intended to be disrespectful to the office of

the President or to the individual Barack Obama. It is used only

to identify the individual, separate from the office, to note that

candidate Obama has not yet been elected to the term of office

at issue in the instant litigation, and to simplify communication

for purposes of this Petition.


iii

TABLE OF CONTENTS

Page

Questions Presented i

Parties to the Proceedings ii

Table of Contents iii

Table of Authorities vii

Opinions Below 1

Jurisdiction 2

Statutory and Constitutional Provisions 2

Involved

Statement of the Case 2

Reasons for Granting the Petition 4

I. Question I: Does the Right to Associate 6

Force States to Accept Any Candidate

from Political Parties for Presentation

on State Primary Ballots When Such

a Candidate Does Not Meet Minimum

Legal Qualifications for the Office Sought,

Thereby Negating State Election Laws and

State Control of Elections?


iv

TABLE OF CONTENTS (cont.)

Page

II. Question II: Are All Individuals Born on 11

U.S. Soil Article II-“Natural Born

Citizens,” Regardless of the Citizenship

of Their Parents?

A. The Minor Court Defined Natural 13

Born Citizen in Order to Reach its

Holding

B. Precedential Status of the Minor 14

Court’s Definition of Natural Born

Citizen

C. The Minor Court’s Discussion of Other 16

Categories of Citizen Confirms that

The Court’s Definition of Natural Born

Citizen is Part of its Holding

D. Georgia’s Ruling Violates the Minor 17

Court’s Holding that the 14th

Amendment “Did Not Add to the

Privileges and Immunities of a Citizen”

E. This Court’s Wong Kim Ark Holding 18

Does not Conflict with Minor and Does

Not Support the Georgia Ruling


v


Page

F. Rules of Construction Support 20

Petitioners’ Harmonized Readings of

Minor and Wong Kim Ark

G. Indiana State Court Lacked 21

Jurisdiction to Reach the Article II

Issue

III. Mootness 23

Conclusion 25

Appendix 1a

Part A 1a

Georgia Supreme Court Orders Denying

Review, April 4, 2012

Part B 4a

Superior Court of Fulton County, State of

Georgia, Order Granting Defendant Obama’s

Motion to Dismiss Appeal, March 2, 2012

Part C 10a

Georgia Secretary of State, Final Decision

Adopting the Decision of the Georgia Office of

State Administrative Hearings, February 7, 2012


vi


Page

Part D 13a

Georgia Office of State Administrative Hearings,

Ruling All Persons on U.S. Soil to be Article II

Natural Born Citizens, February 3, 2012

Part E 25a

Constitutional Provisions Involved –

Article II §1 Clause 5; Amendments I & XIV

Part F 26a

Statutory Provisions Involved –

O.C.G.A. §§21-2-15 and 21-2-5


vii

TABLE OF AUTHORITIES

Cases Page

Ankeny v. Governor, 22-24

916 N.E.2d 678 (Ind. Ct. App. 2009)

Belluso v. Poythress, 7, 8

485 F.Supp. 904 (N.D. Ga. 1980)

Democratic Party of the U.S. v. Wisconsin, 7, 8

450 U.S. 107 (1981)

Duke v. Cleland, 7, 8

954 F.2d 1526 (11th Cir. 1992)

Gen. Motors Accpt. Corp. v. United States, 21

286 U.S. 49 (1932)

Lyng v. N.W. Indian Cemetery 23

Protective Assn.,

485 U.S.439 (1988)

Marbury v. Madison, 20, 22

5 U.S. 137 (1805)

Morton v. Mancari, 21

417 U.S. 535 (1974)

Minor v. Happersett, 11-16

88 U.S. 162 (1875)

United States v. Borden Co., 21

308 U.S. 188 (1939)


viii

TABLE OF AUTHORITIES (cont.)

Cases Page

United States v. Tynen, 21

78 U.S. 88 (1870)

United States v. Wong Kim Ark, 12, 17-22

169 U.S. 649 (1898)

Wood v. United States, 21

41 U.S. 342 (1842)

Constitution

Article II §1 Passim

Amendment I 10

Amendment XIV 17, 20-22

Statutes

28 U.S.C. 1257 2

O.C.G.A. §21-2-5 2, 6, 9, 10

O.C.G.A. §21-2-15 2, 6, 9

Dictionary

Black’s Law Dictionary, 16, 19

Bryan A Garner ed., 7th Ed., West 1999


1

PETITION FOR A WRIT OF CERTIORARI

The petitioners respectfully petition for a writ

of certiorari to review the opinion and judgment of

the Supreme Court for the State of Georgia.

OPINIONS BELOW

The orders of the Supreme Court for the State

of Georgia, dated April 4, 2012, affirming the opinion

of the Georgia Superior Court for the State of

Georgia in the County of Fulton are reproduced at

App. 1a.

The order of the Superior Court for the State

of Georgia in the County of Fulton, dated March 2,

2012, dismissing petitioners’ appeal from the

judgment of the Georgia Secretary of State, is

reproduced at App. 2a-7a.

The Order of the Secretary of State, dated

February 7, 2012, adopting the Decision of the

Georgia Office of State Administrative Hearings,

dated February 3, 2012, granting defendant-

respondents’ motion for summary judgment, is


The Decision of the Georgia Office of State

Administrative Hearings, dated February 3, 2012,

granting defendant-respondents’ motion for

summary judgment, is reproduced at App. 11a-22a.


2

JURISDICTION

The judgment of the Supreme Court of the

State of Georgia was entered on April 4, 2012. This

petition is timely filed under 28 U.S.C. §1257

because it is being filed within 90 days of the entry of

the judgment of the Supreme Court of Georgia.

This Court has jurisdiction under 28 U.S.C.

§1257 because the judgment of the Supreme Court of

Georgia interpreted the United States Constitution

to invalidate a statute of the state of Georgia, and by

implication similar statutes in other states, and

because the Georgia Supreme Court’s judgment

negated rights of Georgia citizens specially set up

under the United States Constitution.

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

The relevant constitutional provisions

involved are Article II §1, and the First and

Fourteenth Amendments, which are reproduced at

App. 23a. The relevant statutory provisions involved

are O.C.G.A. §§21-2-15 and 21-2-5, which are


STATEMENT OF THE CASE

This is the first case to reach this Court that

substantively addresses the definition of “natural

born citizen” as that term is used in Article II of the

U.S. Constitution. The Georgia Administrative Court


3

and Secretary of State properly denied all attempts

to dismiss the instant case on procedural grounds,

leaving a clean ruling on the legal question.

The petitioners’ challenge in Georgia State

Court was based upon an uncontested fact: that the

respondent’s father was not a U.S. citizen; and upon

the legal conclusion that a person must have two

U.S. citizen parents to be a natural born citizen

under Article II of the U.S. Constitution.

The Georgia Office of State Administrative

Hearings and Secretary of State ruled that any

person born on U.S. soil is a “natural born citizen” as

that term is use in Article II of the U.S. Constitution,

regardless of the citizenship of the person’s parents.

The Georgia Superior Court dismissed an

appeal by erroneously deciding that the Georgia

statute under which the petitioners challenged

candidate Obama’s eligibility, violated the

Democratic Party’s right to freedom of association.

The Superior Court ruled that the Georgia statute

was, therefore, inapplicable to Presidential primary

elections. This argument had been raised and

rejected by the Georgia Office of Administrative

Hearings and the Georgia Secretary of State.

The Georgia statute at issue explicitly states

that it is applicable to “any general or special

primary to nominate candidates” for state, local, and

federal office. This is why the Georgia

Administrative Court and Secretary of State applied

the statute to the state’s Presidential primary


4

election. The Superior Court’s ruling, therefore,

invalidated a significant portion of Georgia’s law on

grounds that it violates the U.S. Constitution.

The Georgia Supreme Court refused review,

adopting the ruling of the Georgia Superior Court.

Together these rulings leave this Court with

an opportunity to confirm state authority over

Presidential primary elections, and to confirm its

definition of natural born citizen under Article II of

the Constitution.

REASONS FOR GRANTING THE PETITION

Since 2007 hundreds of lawsuits have been

litigated challenging candidate Obama’s

constitutional eligibility to hold office. As of the filing

of this petition current Presidential candidate Mitt

Romney may name Marco Rubio as a Vice

Presidential running mate. Like candidate Obama,

at least one of Mr. Rubio’s parents was not a U.S.

citizen when Mr. Rubio was born. Regardless of

whether Mr. Rubio turns out to be the next VP

candidate, this issue is practically certain to arise

again. When it does it will certainly result in

hundreds more lawsuits, filed in courts across the

country. Regardless of which end of the political

spectrum the next candidate with a non-U.S. citizen

parents may be on, his or her political opponents are

virtually certain to raise this issue again.

This Court’s ruling in the instant case could

decisively confirm the definition of “natural born


5

citizen” as that term is used in Article II. Such a

decision would clear hundreds of cases from court

dockets over the next few years.

In addition, the Georgia Court’s ruling turns

freedom to associate precedent on its head,

expanding a political party’s legitimate right to

exclude certain individuals into a party’s absolute

authority to dictate to states regarding who will

appear on state election ballots. This ruling negates

a significant portion of Georgia’s election code. If

applied to other states this precedent would

represent a revolutionary shift in power between

states and political parties, negating state authority

over elections as established in Article II, Section 1 of

the U.S. Constitution.

The Georgia rulings challenged here

dangerously expand power for political parties, deny

constitutional state authority over elections,

misapply this Court’s freedom to associate precedent,

ignore this Court’s precedent in favor of dicta, ignore

venerable rules of constitutional construction, ignore

any difference between the legally distinguishable

terms “citizen” and “natural born citizen,” and

erroneously established that all persons born on U.S.

soil are natural born citizens without regard to the

citizenship of their parents. Each one of these errors

will be compounded by courts across the country if

they are not corrected by this Court.


6

I. Question 1: Does the Right to Associate

Force States to Accept Any Candidate

from Political Parties for Presentation on

State Primary Ballots When Such a

Candidate Does not Meet Minimum Legal

Qualifications for the Office Sought,

Thereby Negating State Election Laws

and State Control of Elections?

Article II, section 1 of the United States

Constitution states: “Each state shall appoint, in

such manner as the legislature thereof may direct, a

number of electors” to the electoral college for

election of the President of the United States. U.S.

Const. Art. II §1.

Georgia’s legislature has determined that it is

in the best interest of the citizens of Georgia to

screen candidates for minimum legal qualifications

prior to placement on its primary ballots:

“Every candidate for federal and

state office…shall meet the

constitutional and statutory

qualifications for holding the office

being sought.” O.C.G.A. §21-2-5.

The fact that the Georgia Legislature intended

this section to apply to Presidential Primaries is

made explicit by O.C.G.A. §21-2-15:

“This chapter shall apply to any

general or special election in this state

to fill any federal, state, county, or

municipal office, to any general or


7

special primary to nominate candidates

for any such office, and to any federal,

state, county, or municipal election or

primary for any other purpose

whatsoever, unless otherwise provided.”

In the instant case the Georgia Superior and

Supreme Courts disagreed with the Georgia

Administrative Court and Secretary of State, the

State’s high Court holding that application of §21-2-5

to Presidential primaries would violate a political

parties’ right to freely associate.

The Georgia Supreme Court’s conclusion is not

supported by any precedent, invalidates Georgia

election code, and would imply that election codes

from several other states are similarly

unconstitutional. Leaving the Georgia Courts’ ruling

in place would threaten to negate all states’ control

over Presidential primary elections, leaving political

parties with absolute power over state Presidential

primary elections. Such a result runs contrary to

Article II, section 1. See U.S. Const. Art. II §1 (“Each

state shall appoint, in such manner as the legislature

thereof may direct, a number of electors…”)(emphasis

added).

The Georgia Court’s ruling is also unnecessary

because Article II and the First Amendment are in

harmony. State control over the election processes

simply does not violate the right of political parties to

determine who will and will not be accepted as

members of those organizations. As a result, no

precedent interpreting the right to associate supports

the Georgia Court’s ruling.


8

The right to associate has been interpreted to

allow private groups to determine who will and will

not be members of the group. Democratic Party of

U.S. v. Wisconsin, 450 U.S. 107 (1981); Duke v.

Cleland, 954 F.2d 1526 (11th Cir. 1992); Belluso v.

Poythress, 485 F.Supp. 904 (N.D.Ga. 1980). However,

no court has extended this right beyond the confines

of the private organization. A party can determine

who it will include as members. That party can also

determine which of those members will be its

candidates. However, nothing in the Constitution or

precedent forces a State to accept a party’s selection

of candidates for appearance on a ballot.2

Several right-to-associate cases did involve

candidates’ exclusion from ballots. See Democratic

Party of U.S. v. Wisconsin, 450 U.S. 107 (1981); Duke

v. Cleland, 954 F.2d 1526 (11th Cir. 1992); Belluso v.

Poythress, 485 F.Supp. 904 (N.D.Ga. 1980). However,

all of these cases are exactly opposite to the situation

presented in the Georgia litigation. All of the above

precedent involved political parties excluding a

candidate because the party did not want to be

associated with the candidate. In every case cited,

the candidate sued the party or state for inclusion on

the ballot after being excluded. The courts upheld the

parties’ right to exclude individuals from

membership in their parties. This does not, however,

create a right for the party to dictate to states.

2 While right-to-associate precedent has negated some states’

restrictive laws for recognizing political parties, none of these

precedent have forced states to accept all candidates for

appearance on ballots without any screening of such candidates.


9

There are no cases prior to the instant

litigation where a political party’s decision to support

a candidate created a Constitutional right to force a

State to accept that decision. Such precedent would

place the political parties’ authority above that of the

state. This is why no such precedent exists.

It is true that some states lack election codes

authorizing a state official to screen candidate

selections received from political parties. In these

states political parties have essentially unfettered

authority to determine which candidates appear on

ballots. However, these instances represent decisions

of the states’ legislatures to not screen candidates. It

is the states’ right to decide how to administer its

elections. See U.S. Const. Art. II §1. The fact that

some states have decided to not protect their citizens

from unqualified candidates does not mean that

other states do not have the right to screen

candidates. It simply means that some states have

left the screening to the political parties.

Right-to-associate precedent simply does not

prevent Georgia’s Legislature from protecting its

citizens in this manner because the right to associate

easily coexists with the State’s right to determine the

manner of choosing its Presidential electors. Georgia

code does not interfere with the autonomy of any

political party’s internal decision making because it

does not prohibit the parties from submitting any

name to the Georgia Secretary of State for inclusion

in the Presidential primary. The political parties are

free to submit Saddam Hussein or Mickey Mouse as

their next Presidential candidate. However, Georgia


10

is not required to accept such submissions and waste

taxpayer money on ballots for such candidates.

After the Georgia Court’s ruling, the political

parties could choose to list former Presidents George

Bush and Bill Clinton as candidates for the

Presidential primary, despite the fact that both

President Bush and President Clinton are

disqualified to run for that office again by the 22nd

Amendment to the U.S. Constitution. Upon such

listing the State of Georgia would have no choice but

to place these candidates’ names on its ballots. This

result demonstrates the error of the Georgia Court’s

holding. Contrary to the Georgia Court’s holding, the

political parties simply do not have unfettered

dictatorial authority over the state of Georgia.

Georgia code does not prevent the political

parties from submitting any name. Instead the code

simply determines what the State does with a party’s

list of candidates after the party has forwarded its

list to the State. See O.C.G.A. §21-2 et seq. This code

does nothing to prevent any political party from

excluding, or including, any person they choose to

exclude or include. Nor does it prevent a party from

choosing candidates to submit, in the party’s “sole

discretion.” Georgia’s code simply exercises the

State’s right to administer elections in a manner that

best serves the citizens of the State.

In the instant case Georgia’s Election code

does nothing to infringe on the Democratic Party of

Georgia’s right of association because the Party can

and did accept the respondent into its organization.

The Party can and did include the respondent in the


11

Party’s list of candidates. The Party’s rights,

however, end there. Its rights cannot force the State

to place the respondent’s name on a ballot after the

State determines that the respondent is obviously

not qualified “to hold the office sought.” §21-2-5. The

rights of the Party and of the State simply do not

conflict.

The Georgia Court’s holding logically requires

a conclusion that no state can preclude any candidate

from any primary ballot for any reason without

violating a political party’s right to freely associate.

Since many candidates have been disqualified from

primary ballots for lack of qualification to hold the

office sought, we can safely conclude that the Georgia

Court’s holding is a gross misapplication of the right

to associate.

In order to protect the harmony between

Article II and the First Amendment, and to protect

the right of all states to control their elections, the

petitioners respectfully request that this Court grant

the instant petition.

II. Question 2: Are All Individuals Born on

U.S. Soil Article II “natural born

citizens,” Regardless of the Citizenship of

their Parents?

The instant litigation challenged candidate

Obama’s Constitutional eligibility to hold the office of

President upon grounds that his father was not a

U.S. citizen at the time candidate Obama was born.

App.16a-17a. Petitioners cited this Court’s definition

of “natural born citizen,” as that term is used in


12

Article II of the Constitution, from the holding of

Minor v. Happersett. 88 U.S. 162, 167-8 (1875).

In response to this challenge the Georgia

Secretary of State and Office of State Administrative

Hearings reached the legal conclusion that “persons

born within the borders of the United States are

‘natural born citizens’ for Article II, Section 1

purposes, regardless of the citizenship of their

parents.” App. 21a.

The Georgia Secretary of State’s legal

conclusion runs contrary to venerable rules of

Constitutional construction. It relies heavily upon an

Indiana State court that had already admitted it

lacked jurisdiction to reach the Article II issue. Most

importantly, it rests upon dicta that would negate

this Court’s holding from Minor v. Happersett.

The Minor Court’s definition of “natural-born citizen”

is binding precedent because the Court’s definition

was necessary to reach its holding. 88 U.S. 162. The

Minor Court’s definition of “natural-born citizen,”

therefore, has not been abrogated by the dicta from

Wong Kim Ark (WKA) or any other subsequent

Supreme Court precedent. See 169 U.S. 649 (1898).

Any rulings from other courts are simply incorrect.

Unless and until this Court revisits this issue, the

Minor Court’s definition is binding.


13

A. The Minor Court Confirmed the

Definition of Article II-Natural Born

Citizen in Order to Reach its Holding

In Minor v. Happersett the United States

Supreme Court was presented the question: Does the

14th Amendment grant all citizens the right to vote?

88 U.S. 162. Minor, a woman living in Missouri,

challenged that state’s constitutional prohibition

against women voting. The Court held that women

could be citizens before ratification of the 14th

Amendment, but that the 14th Amendment created

no new privileges or immunities.

To reach its holding the Minor Court defined

the term “natural born citizen.” 88 U.S. at 167. It

established that,

“it was never doubted that all

children born in a country of parents

who were its citizens became

themselves, upon their birth, citizens

also. These were natives or natural-born

citizens, as distinguished from aliens or

foreigners.” Id.

It is clear that the Minor Court was referring

to the term “natural born citizen,” as it appears in

Article II of the Constitution because, in the

paragraph preceding the definition quoted here, that

Court quoted the Article II requirement that the

President must be a “natural born citizen.”

The Minor Court’s definition of natural born

citizen is immediately followed by a statement that


14

“there have been doubts” about the broader class of

people identified as “citizens.” Id. However, this

statement is immediately followed by the

clarification that there have “never been doubts” as

to the narrower class of natural born citizens. Id.

This understanding of the Minor Court’s statement

is supported by its extensive discussion of the

broader term “citizen” at the beginning of the Court’s

opinion. Id. at 166. The Court concludes its

discussion of the term “citizen” by stating, “When

used in this sense it is understood as conveying the

idea of membership of a nation, and nothing more.”

Id. The Court, therefore, clearly established that the

term “citizen” was to be understood to be very broad.

With this in mind, the Minor Court’s statement is

unambiguous: it established two distinct classes of

people, citizens and natural born citizens; “citizen” is

a broad term that is inclusive of all “natural born

citizens,” and others. Id. All natural born citizens are

citizens, but not all citizens are natural born citizens;

as to the outer limits of the term “citizen” there are

doubts; and as to the definition of “natural born

citizen” there have “never been doubts”. Id.

B. Precedential Status of the Minor

Court’s Definition of Natural Born

Citizen

In order to reach its holding, the Minor Court

first had to establish that Mrs. Minor was a citizen.

It explicitly did so by determining that she was a

natural born citizen: “For the purposes of this case it

is not necessary to solve these doubts. It is sufficient

for everything we have now to consider that all

children born of citizen parents within the


15

jurisdiction are themselves citizens.” Id. at 167. The

definition the Court is using here is the Court’s own

definition of natural-born citizen from earlier in the

same paragraph. Because both of Mrs. Minor’s

parents were U.S. citizens at the time she was born,

and she was born in the U.S., she was a natural born

citizen. Because all natural born citizens are also

within the broader category “citizen,” Mrs. Minor

was a citizen. This is why the Court did not need to

resolve doubts about the outer limits of the term

citizen. Mrs. Minor was a citizen because she was

clearly within the narrower category of natural-born

citizen.

The Minor Court’s decision to establish that

Mrs. Minor was a citizen because she was a natural

born citizen followed the well-established doctrine of

judicial restraint. Judicial restraint required the

Minor Court to avoid interpreting the citizenship

clause of the 14th Amendment if the circumstances

presented in the case at hand did not require the

Court to construe the 14th amendment’s citizenship

clause in order to reach its holding. The facts

presented did not require such an interpretation

because the definition of natural born citizen was

well-established and Mrs. Minor was a natural born

citizen. So, the Court did not reach the 14th

amendment’s citizenship clause. But this restraint

did require the Court to conclude that Mrs. Minor

was a citizen via its definition of natural-born citizen

and its conclusion that all natural-born citizens are

within the broader category of “citizens.” This is why

it made the statement “For the purposes of this case

it is not necessary to solve these doubts. It is

sufficient for everything we have now to consider


16

that all children born of citizen parents within the

jurisdiction are themselves citizens.” Id. at 168. In

other words, the Minor Court’s definition of

“natural born citizen” was pivotal to reaching

its holding.3

Because the Minor Court’s definition of

“natural born citizen” was pivotal to reaching its

holding, the Court’s definition is part of its holding

and is, therefore, also precedent. See Black’s Law

Dictionary 737 (Bryan A. Garner ed., 7th ed., West

1999) (“holding, n. 1. A court’s determination of a

matter pivotal to its decision”); (see also Id. at 1195

defining “precedent” and quoting James Parker Hall,

American Law and Procedure xlviii (1952); see also

Black’s Law Dictionary at 465, distinguishing

“dictum gratis”: “A court’s discussion of points or

questions not raised by the record or its suggestion of

rules not applicable in the case at bar.”).

C. The Minor Court’s Discussion of Other

Categories of Citizens Confirms that

The Court’s Definition of Natural Born

Citizen is Part of its Holding

After establishing that Mrs. Minor was a

citizen because she was a natural born citizen, the

Court then discussed several other types of

citizenship as general examples of its conclusion that 3 Courts using judicial restraint are deciding to rely upon well-established

law rather than delve into new and more debatable areas of law. The fact

that the Minor Court deferred to the previously well-established definition

of “natural born citizen” proves that this term was beyond debate at the

time of the Minor Court’s opinion. That is why the Court states that there

have never been doubts as to the definition of Article II natural born

citizen.


17

women could be citizens. However, it then returned

to the specific case of Mrs. Minor, concluding: “The

fourteenth amendment did not affect the citizenship

of women any more than it did of men. In this

particular, therefore, the rights of Mrs. Minor do not

depend upon the amendment. She has always been a

citizen from her birth, and entitled to all the

privileges and immunities of citizenship.” Id. at 170.

This discussion not only shows that the Minor

Court explicitly distinguished the terms citizen and

natural born citizen, it also shows that the Court

determined that Minor was a citizen because she was

a natural born citizen. Because citizen is a much

broader term, but includes the narrower term

natural born citizen, Minor was a citizen because she

was a natural born citizen.

D. Georgia’s Ruling Violates The Minor

Court’s Holding that the 14th

Amendment “Did Not Add to the

Privileges and Immunities of a

Citizen”

The Georgia Secretary of State’s decision also

runs contrary to the Minor Court’s holding that “The

amendment did not add to the privileges and

immunities of a citizen.” Id. at 171. The Minor Court

established that if an individual did not have the

right to vote before the 14th Amendment, then that

citizen did not have the right to vote after the

Amendment. Id. It is clear from this holding that if a

person was not qualified to hold the office of

President under Article II before the 14th

Amendment, then he or she was not qualified to hold


18

the office of President after the Amendment. Id. In

other words, the holding of the Minor Court explicitly

established that the 14th Amendment did not change

the definition of natural born citizen under Article II.

E. This Court’s Wong Kim Ark Holding

Does not Conflict with Minor and Does

Not Support the Georgia Ruling

The Supreme Court’s holding in Wong Kim

Ark (“WKA”) did not alter or negate the definition of

natural born citizen as established by the Minor

Court. Compare United States v. Wong Kim Ark, 169

U.S. 649 (1898) with Minor, 88 U.S. 162. The holding

of WKA answered the narrow question that was

avoided by the Minor Court: namely construction of

the citizenship clause of the 14th Amendment.

A review of the holding from WKA confirms

this conclusion:

“[T]he single question stated at

the beginning of this opinion, namely,

whether a child born in the United

States, of parents of Chinese descent,

who at the time of his birth are subjects

of the emperor of China, but have a

permanent domicile and residence in

the United States, and are there

carrying on business, and are not

employed in any diplomatic or official

capacity under the emperor of China,

becomes at the time of his birth a citizen

of the United States by virtue of the


19

first clause of the fourteenth

amendment of the Constitution: ‘All

persons born or naturalized in the

United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the state wherein

they reside.’ For the reasons above

stated, this court is of the opinion that

the question must be answered in the

affirmative.” 169 U.S. at 705 (emphasis

added).

The WKA holding does not contain the term

“natural born” nor does it mention Article II.

This makes sense because the WKA Court did

not need to define the term natural born citizen in

order to reach its holding. Had Mr. Ark been a

natural born citizen as defined by the Minor Court,

then the WKA case would never have been filed

because Mr. Ark’s status as a citizen would never

have been in question. Had Mr. Ark been a natural

born citizen the WKA Court would not have had to

resort to the 14th Amendment in order to find that he

was a “citizen.” Because Mr. Ark was not a natural

born citizen, the WKA court had no reason to

construe the term natural born citizen in order to

answer the question: Was Mr. Ark a citizen under

the 14th Amendment? Therefore, any discussion

within the WKA opinion that could possibly be

construed to alter the Article II term “natural born

citizen,” was unnecessary to reach the WKA holding

and was, by definition, dicta. See Black’s Law

Dictionary 465 (Bryan A. Garner e., 7th ed., West

1999)(defining Dictum Gratis).


20

Rather than construing the definition of the

term “natural born citizen” under Article II, the

WKA Court was construing the term “citizen” under

the 14th Amendment. Regardless of the answer to the

question answered by the WKA Court, it does

nothing to change the requirements for the office of

President.

To conclude that the WKA court altered the

definition of natural born citizen under Article II

would require a conclusion that dicta alters

established precedent. This is simply not the rule.

Dicta can be persuasive. Where the reasoning in

dicta is logical and well supported, and where it does

not conflict with precedent, it can be followed at the

discretion of other courts. However, where dicta

directly conflicts with precedent it cannot be followed

by lower courts.

Also, to conclude that the WKA Court altered

the definition of natural born citizen under Article II

would also require a conclusion that the WKA court

intended to overturn the Minor holding that the 14th

amendment did not create any new privileges or

immunities. Yet the WKA Court never made any

such assertion, nor has any decision of this Court

since WKA.

Nothing in the holding of Wong Kim Ark

contradicts anything in Minor v. Happersett. Reading

these two opinions with the distinction between

“citizen” and “natural born citizen” in mind, and with

the definitions of “holding,” “precedent,” and “dicta”


21

in mind, confirms that the Minor and Wong Kim Ark

opinions do not conflict.

Common sense and rules of construction tell

us that if two laws, constitutional provisions, or court

opinions can be read to not conflict, such an

interpretation is more likely correct than an

interpretation that requires conflict. A proper

reading of these two opinions reveals that they

conform to each other and complement each other.

This reading of Minor and WKA respects the

foundational principals of constitutional construction

and legal interpretation because these cases were

answering different questions regarding different

aspects of the Constitution. This reading of Minor

and WKA leave these two opinions in harmony.

F. Marbury v. Madison’s Rule of

Constitutional Construction Supports

Petitioners’ Harmonized Readings of

Minor and Won Kim Ark

The Georgia Secretary of State’s decision

concludes that any person born within the United

States, regardless of the citizenship or legal status of

their parents, is a “natural born citizen” under

Article II of the United States Constitution. This

conclusion violates venerable rules of Constitutional

Construction established by this Court. In Marbury

v. Madison this Court explained, “It cannot be

presumed that any clause in the Constitution is

intended to be without effect; and therefore such a

construction is inadmissible.” 5 U.S. 137, 174 (1805).


22

This rule is still in effect and a similar rule is

used for statutory construction: “When there are two

acts upon the same subject, the rule is to give effect

to both if possible…The intention of the legislature to

repeal must be clear and manifest.” United States v.

Borden Co., 308 U.S. 188, 198 (1939). See also,

Morton v. Mancari, 417 U.S. 535, 551 (1974); United

States v. Tynen, 78 U.S. 88 (1870); Henderson’s

Tobacco, 78 U.S. 652 657 (1870); General Motors

Acceptance Corp. v. United States, 286 U.S. 49, 61

(1932); Wood v. United States, 41 U.S. 342, 362-63

(1842).

These rules of construction were well-

established and well-known at the time the 14th

Amendment was drafted. Had the drafters of the 14th

Amendment intended that Amendment to alter the

Article II definition of natural born citizen, they

would have clearly stated so. Yet the term “natural

born citizen” is not found anywhere within the 14th

Amendment. The Amendment also makes no

reference to Article II.

Yet the Georgia Secretary of State’s ruling in

the instant case, and reading of the WKA opinion,

leaves Article II’s “natural born citizen” clause with

no independent meaning separate from the meaning

of “citizen” under the 14th Amendment. Citizen

simply does not have the same legal meaning as the

term “natural born citizen.” Article II uses the term

natural born citizen in order to distinguish this type

of citizen from other citizens. Yet the Secretary’s

holding completely negates this distinction.

Therefore, the Secretary’s holding violates venerable


23

rules of Constitutional construction. Marbury, 5 U.S.

at 174.

The Secretary also reads the words “natural

born” into the very explicit holding of the Supreme

Court’s Wong Kim Ark decision. 169 U.S. 649 (1898).

Yet neither the 14th Amendment nor the holding of

Wong Kim Ark include the term “natural born.” The

Wong Kim Ark court was determining the meaning of

the broader term “citizen” under the 14th

Amendment. Id. at 705. Its holding was highly fact-

specific. Id. Its holding neither mentioned Article II

nor the term “natural born.” Id.

The Georgia Secretary of State’s conclusion

that all persons born on U.S. soil are Article II-

natural born citizens, regardless of their parents’

citizenship, violates every rule of legal

interpretation.

G. Indiana State Court Lacked

Jurisdiction to Reach the Article II

Issue

The Georgia Secretary of State’s decision relies

heavily upon an Indiana State Appellate Court

opinion. See App.17a-22a. citing Ankeny v. Governor,

916 N.E.2d 678 (Ind. Ct. App. 2009). However, a

cursory reading of the Ankeny opinion should lead

any court to immediately recognize the limited value

of that opinion.

Ankeny was a challenge brought by pro-se

litigants in Indiana against that state’s Governor. Id.

at 679. While litigation by pro-se parties certainly


24

does not, by itself, negate the value of an opinion, it

certainly should raise some concerns. Most pro-se

litigants cannot be expected to present courts with

fully researched and briefed arguments in support of

their constitutional assertions. Addtionally, the

Defendant in Ankeny was a sitting Governor with all

the resources of the state at his disposal. Id. This

picture explains the very one-sided presentation of

the issues and the ultimate result in Ankeny.

Much more striking, however, is the fact that

the Ankeny Court admitted that the plaintiff lacked

standing. Id. at 684. Since the plaintiff lacked

standing, the Ankeny Court lacked jurisdiction to

reach any substantive issue presented. Yet after

reaching this conclusive finding, the Ankeny court

took it upon itself to construe Article II of the U.S.

Constitution. While a court may use alternative

means to reach a holding, it should not construe the

U.S. Constitution to do so. Lyng v. Northwest Indian

Cemetery Protective Association, 485 U.S. 439, 445-46

(1988) (“A fundamental and longstanding principle of

judicial restraint requires that courts avoid reaching

constitutional questions in advance of the necessity

of deciding them.”). Judicial restraint requires all

courts to avoid construing any clause of the

Constitution if avoiding such construction is at all

possible. Id. By pushing forward to give its opinion

on the meaning of Article II, after ruling that it

lacked jurisdiction in the case, the Ankeny Court

ignored judicial restraint, ignored rules of

constitutional construction, ignored direct precedent

from this Court, and ignored the Article III

constitutional limits on its own authority.


25

In other words, the Ankeny Court’s decision to

reach the constitutional question demonstrates that

Court’s failure to understand the most basic

doctrines applied by this Court when construing the

Constitution. With this fact in mind, the Ankeny

Court’s opinion regarding the meaning of Article II

and the 14th Amendment should be avoided at all

costs by any other court.

Yet the Georgia Administrative Court, Georgia

Secretary of State, and other courts across the

country are citing Ankeny as decisive on the natural

born citizen issue.

CONCLUSION

For the reasons discussed above the

petitioners respectfully request a writ of certiorari be

granted.

Respectfully submitted,

Van R. Irion

Liberty Legal Foundation

9040 Executive Park Drive, Ste.200

Knoxville, TN 37923

(423) 208-9953

J. Mark Hatfield, Esq.

Hatfield & Hatfield, P.C.

201 Albany Avenue

P.O. Box 1361

Waycross, Georgia 31502

(912) 283-3820


1a

APPENDIX

Part A

Supreme Court of Georgia Orders Denying

Review, April 4, 2012

SUPREME COURT OF GEORGIA

Case No. S12D1059

Atlanta, April 04, 2012

The Honorable Supreme Court met pursuant

to adjournment.

The following order was passed.

DAVID P. WELDON v. BARACK OBAMA

From the Superior Court of Fulton County.

Upon consideration of the Application for

Discretionary Appeal, it is ordered that it be hereby

denied. All the Justices concur.

Trial Court Case No. 2012CV211537

SUPREME COURT OF THE STATE OF GEORGIA

Clerk's Office, Atlanta

I certify that the above is a true extract from

minutes of the Supreme Court of Georgia.

Witness my signature and the seal of said

court hereto affixed the day and year last above

written.

Lia C. Fulton, Chief Deputy Clerk


2a


Case No. S12D1077



to adjournment.


KEVIN RICHARD POWELL v. BARACK OBAMA












written.



3a


Case No. S12D1076



to adjournment.


CARL SWENSSON v. BARACK OBAMA












written.



4a

APPENDIX

Part B

Superior Court of Fulton County, State of

Georgia, Order Granting Defendant Obama’s

Motion to Dismiss Appeal, March 2, 2012

IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

DAVID FARRAR, LEAH LAX,

CODY ROBERT JUDY,

LAURIE ROTH,

Petitioners,

v. CIVIL ACTION

FILE NO.2012CV211398

BARACK OBAMA and

SECRETARY OF STATE

Respondents.

CARL SWENSSON,

Petitioner,

v. CIVIL ACTION


BARACK OBAMA,

Respondent.


5a

KEVIN RICHARD POWELL,

Petitioner,

v. CIVIL ACTION


BARACK OBAMA,

Respondent.

DAVID P. WELDEN,

Petitioner,

v. CIVIL ACTION


BARACK OBAMA,

Respondent.

ORDER GRANTING RESPONDENT BARACK

OBAMA’S MOTION(S) TO DISMISS

The above-captioned actions are before the

Court on the Petitioner(s) for Judicial Review of

Petitioners David Farrar, et al., Carl Swensson,

Kevin Richard Powell, and David P. Welden, which

were filed in this Court on February 13, 2012, and

February 15, 2012, respectively. Although initially

assigned to four (4) different Superior Court Judges,

the matters were transferred to the Honorable Chief

Judge Cynthia D. Wright, to whom the first-filed

case was assigned (Farrar, et al. v. Obama, et al.,

Civil Action File No. 2012CV11398), because each is

an appeal of the same decision issued on February 3,

2012 by Administrative Law Judge Michael M.

Malihi in the Office of State Administrative Hearings

and thereafter adopted by the Secretary of State.


6a

Presently before the Court is the Motion to

Dismiss of Respondent Barack Obama, filed in each

of the above-referenced actions of February 27, 2012.

The Motion(s) to Dismiss are identical in form and

substance and will, therefore, be addressed by the

Court in one consolidated Order to be applied in each

case. Now, having considered the Motion(s) to

Dismiss, the other pleadings of record, and

applicable Georgia law, the Court finds as follows:

Petitioners filed their Appeal/Petition for

Judicial Review of the Secretary of State’s decision in

this Court pursuant to O.C.G.A. §21-2-5(e), which

provides as follows:

The elector filing the challenge or the

candidate challenged shall have the

right to appeal the decision of the

Secretary of State by filing a petition in

the Superior Court of Fulton County

within ten days after the entry of the

final decision by the Secretary of State.

The filing of the petition shall not itself

stay the decision of the Secretary of

State; however, the reviewing court may

order a stay upon appropriate terms for

good cause shown. As soon as possible

after service of the petition, the

Secretary of State shall transmit the

original or a certified copy of the entire

record of the proceedings under review

to the reviewing court. The review shall

be conducted by the court without a jury

and shall be confined to the record.


7a

Petitioners allege that Respondent Barack

Obama is not a “natural born citizen”4 and, thus, is

not qualified for candidacy in Georgia’s 2012

Presidential Primary. Despite its application in the

court below, this Court does not believe that

O.C.G.A. §21-2-5 applies in this case because the

challenge at issue involves the Presidential

Preference Primary, which by its terms, is an

opportunity for electors “to express their preference

for one person to be a candidate for nomination.”

O.C.G.A. §21-2-191. The Presidential Preference

Primary apportions delegates, but neither elects nor

nominates candidates for the Presidency. Therefore,

because Respondent Barack Obama is not yet a

“candidate” for the Presidential election in question

and because the Presidential Preference Primary is

not an “election” within the meaning of O.C.G.A. §21-

2-1, et seq., §21-2-5 does not apply. See §21-2-2(5) and

21-2-5.

Moreover, it is well established in Georgia as

elsewhere in the United States that voters vote on

“presidential electors,” rather than voting directly for

a candidate, when voting for the Office of President

of the United States. O.C.G.A §21-2-172. The

political parties’ candidates for President are

determined by convention of the political party. See

O.C.G.A. §§21-2-191 to 21-2-200. In the case of a

democratic candidate for President, the Democratic

Party of Georgia has the sole discretion to determine

the qualifications of potential candidates and the

name(s) to be included on its Presidential Preference

4 Petitioners claim is based, in part, on a contention that at the time of his

birth, Respondent’s father was not a citizen of the United States.


8a

Primary ballot. O.C.G.A. §21-2-193; see Duke v.

Cleland, 954 F.2d 1523 (11th Cir. 1992); Duke v.

Cleland, 884 F.Supp. 511, 515-16 (N.D.Ga. 1995).

The Secretary of State is prohibited by the

Fourteenth Amendment of the United States

Constitution and Georgia statutory law from

infringing on the associational rights of the electors.

O.C.G.A. §§21-2-172 to 21-2-200; Duke v. Cleland,

884 F.Supp. at 515-16 (N.D.Ga. 1995). Even if the

Secretary of State believes that a challenger’s claims

are valid, the Secretary of State may not interfere

with a political party’s internal decision-making. Id.

Based upon Georgia law and governing

precedent, the Court finds it has no authority to

exercise jurisdiction over the Democratic Party of

Georgia’s selection of the name(s) to be included in

the Presidential Preference Primary or to examine

the qualifications of those individuals. Therefore,

these actions should be DISMISSED in accordance

with O.C.G.A. §9-11-12(b).

Additionally, even if the Court had determined

that O.C.G.A. §21-2-5 applied to these matters and

provided the Court with appellate jurisdiction over

same, the Court finds that Petitioners have failed

entirely to perfect personal service upon

Respondent(s) as required by O.C.G.A. §21-2-5(e) and

O.C.G.A. §9-11-4. See Bible v. Bible, 259 Ga. 418, 418

(1989).

Therefore, IT IS HEREBY ORDERED AND

ADJUGED that Respondent Barack Obama’s


9a

Motion(s) to Dismiss in the above matters are

GRANTED, and the above actions are hereby

DISMISSED.

SO ORDERED this the 2nd day of March 2012.

CYNTHIA D. WRIGHT, Chief Judge

Fulton County Superior Court


10a

APPENDIX

Part C

Final Decision of the Georgia Secretary of

State, February 7, 2012, Adopting the Decision

of the Georgia Office of Administrative

Hearings

IN THE OFFICE OF THE SECRETARY OF STATE

STATE OF GEORGIA


CODY ROBERT JUDY,

LAURIE ROTH,

Petitioners,

v. Docket Number: OSAH-

SECSTATE-CE-1215136-

60-MALIHI

BARACK OBAMA

Respondent.

DAVID P. WELDEN,

Petitioner,



60-MALIHI

BARACK OBAMA,

Respondent.


11a

CARL SWENSSON,

Petitioner,



60-MALIHI

BARACK OBAMA,

Respondent.


Petitioner,



60-MALIHI

BARACK OBAMA,

Respondent.

FINAL DECISION5

Petitioners filed candidate challenges

pursuant to O.C.G.A. §21-2-5(b) contending that

Respondent does not meet the State of Georgia’s

eligibility requirements for his name to be listed on

the 2012 Presidential Preference Primary ballot.

Judge Michael Malihi, Administrative Law Judge

(“ALJ”) for the Office of State Administrative

Hearings, held a hearing on each candidate challenge

on January 26, 2012 and entered an initial decision

for the above-captioned cases on February 3, 2012.

5 Judge Michael Malihi previously consolidated the above-captioned

candidate challenges for the purpose of issuing his initial decision. Those

candidate challenges remain consolidated for the purpose of issuing this

Final Decision.


12a

The Secretary of State formally adopts the initial

decision of the ALJ into this final decision.

Therefore, IT IS HEREBY DECIDED THAT

the above-captioned challenges are DENIED.

SO DECIDED this 7th day of February, 2012.

BRIAN P. KEMP

Georgia Secretary of State


13a

APPENDIX

Part D

Decision of Georgia Office of State

Administrative Hearings, February 3, 2012,

Ruling All Persons Born on U.S. Soil to be

Article II Natural Born Citizens

OFFICE OF STATE ADMINISTRATIVE

HEARINGS

STATE OF GEORGIA


CODY ROBERT JUDY,

LAURIE ROTH,

Petitioners,



60-MALIHI

BARACK OBAMA

Respondent.

DAVID P. WELDEN,

Petitioner,



60-MALIHI

BARACK OBAMA,

Respondent.


14a

CARL SWENSSON,

Petitioner,



60-MALIHI

BARACK OBAMA,

Respondent.


Petitioner,



60-MALIHI

BARACK OBAMA,

Respondent.

DECISION6

Plaintiffs allege that Defendant President

Barack Obama does not meet Georgia's eligibility

requirements for candidacy in Georgia's 2012

presidential primary election. Georgia law mandates

that candidates meet constitutional and statutory

requirements for the office that they seek. O.C.G.A. §

6 This Decision has been consolidated to include the four

challenges to President Obama's candidacy filed by Plaintiffs

David Farrar, et al., David P. Welden, Carl Swensson, and

Kevin Richard Powell. Section I of this Decision applies only to

the case presented by Ms. Taitz on behalf of Mr. Farrar and his

co-plaintiffs, Leah Lax, Cody Judy, Thomas Malaren, and

Laurie Roth, and does not pertain, in any way, to the cases of

Mr. Welden, Mr. Swensson, and Mr. Powell. Section II applies

to all Plaintiffs.


15a

21-2-5(a). Mr. Obama is a candidate for federal office

who has been certified by the state executive

committee of a political party, and therefore must,

under Georgia Code Section 21-2-5, meet the

constitutional and statutory qualifications for

holding the Office of the President of the United

States. Id. The United States Constitution requires

that a President be a "natural born [c]itizen." U.S.

Const. art. II, § 1, cl. 5.

As required by Georgia Law, Secretary of

State Brian Kemp referred Plaintiffs' challenges to

this Court for a hearing. O.C.G.A. § 21-2-5(b). A

hearing was held on January 26, 2012. The record

closed on February 1, 2012. Plaintiffs Farrar, Lax,

Judy, Malaren, and Roth and their counsel Orly

Taitz, Plaintiffs Carl Swensson and Kevin Richard

Powell and their counsel J. Mark Hatfield, and

Plaintiff David P. Welden and his counsel Van R.

Irion, all appeared and answered the call of the case.

However, neither Defendant nor his counsel, Michael

Jablonski, appeared or answered. Ordinarily, the

Court would enter a default order against a party

that fails to participate in any stage of a proceeding.

Ga. Comp. R. & Regs. 616-1-2-.30(1) and (5).

Nonetheless, despite the Defendant's failure to

appear, Plaintiffs asked this Court to decide the case

on the merits of their arguments and evidence. The

Court granted Plaintiffs' request.

By deciding this matter on the merits, the

Court in no way condones the conduct or legal

scholarship of Defendant's attorney, Mr. Jablonski.

This Decision is entirely based on the law, as well as


16a

the evidence and legal arguments presented at the

hearing.

I. Evidentiary Arguments of Plaintiffs Farrar,

et al.

Plaintiffs Farrar, Lax, Judy, Malaren, and

Roth contend that President Barack Obama is not a

natural born citizen. To support this contention,

Plaintiffs assert that Mr. Obama maintains a

fraudulently obtained social security number, a

Hawaiian birth certificate that is a computer-

generated forgery, and that he does not otherwise

possess valid U.S. identification papers. Further,

Plaintiffs submit that Mr. Obama has previously

held Indonesian citizenship, and he did not use his

legal name on his notice of candidacy, which is either

Barry Soetoro or Barack Obama Soebarkah. (Pl.s'

Am. Compl. 3.)

At the hearing, Plaintiffs presented the

testimony of eight witnesses7 and seven exhibits in

support of their position. (Exs. P-1 through P-7.)

When considering the testimony and exhibits, this

Court applies the same rules of evidence that apply

to civil nonjury cases in superior court. Ga. Comp. R.

& Regs. 616-1-2-.18(1)—(9). The weight to be given to

any evidence shall be determined by the Court based

7 Originally, Ms. Taitz indicated to the Court that she would

offer the testimony of seven witnesses. However, during her

closing argument, Ms. Taitz requested to testify. Ms. Taitz was

sworn and began her testimony, but shortly thereafter, the

Court requested that Ms. Taitz step-down and submit any

further testimony in writing.


17a

upon its reliability and probative value. Ga. Comp. R.

& Regs. 616-1-2.18(10).

The Court finds the testimony of the

witnesses, as well as the exhibits tendered, to be of

little, if any, probative value, and thus wholly

insufficient to support Plaintiffs' allegations.8 Ms.

Taitz attempted to solicit expert testimony from

several of the witnesses without qualifying or

tendering the witnesses as experts. See Stephens v.

State, 219 Ga. App. 881 (1996) (the unqualified

testimony of the witness was not competent

evidence). For example, two of Plaintiffs' witnesses

testified that Mr. Obama's birth certificate was

forged, but neither witness was properly qualified or

tendered as an expert in birth records, forged

documents or document manipulation. Another

witness testified that she has concluded that the

social security number Mr. Obama uses is

fraudulent; however, her investigatory methods and

her sources of information were not properly

presented, and she was never qualified or tendered

as an expert in social security fraud, or fraud

investigations in general. Accordingly, the Court

cannot make an objective threshold determination of

these witnesses' testimony without adequate

knowledge of their qualifications. See Knudsen v.

Duffee-Freeman, Inc., 95 Ga. App. 872 (1957) (for the

testimony of an expert witness to be received, his or

her qualifications as such must be first proved).

8 The credibility of witnesses is within the sole discretion of the

trier of fact. In non-jury cases that discretion lies with the

judge. See Mustang Transp., Inc. v. W. W. Lowe & Sons, Inc.,

123 Ga. App. 350, 352 (1971).


18a

None of the testifying witnesses provided

persuasive testimony. Moreover, the Court finds that

none of the written submissions tendered by

Plaintiffs have probative value. Given the

unsatisfactory evidence presented by the Plaintiffs,

the Court concludes that Plaintiffs' claims are not

persuasive.

II. Application of the "Natural Born Citizen"

Requirement

Plaintiffs allege that President Barack Obama

is not a natural born citizen of the United States and,

therefore, is not eligible to run in Georgia's

presidential primary election. As indicated supra, the

United States Constitution states that "[n]o person

except a natural born Citizen . . . shall be eligible for

the Office of the President . . .”9 U.S. Const. art. I, §1,

cl. 5.

For the purpose of this section's analysis, the

following facts are considered: 1) Mr. Obama was

born in the United States; 2) Mr. Obama's mother

was a citizen of the United States at the time of his

birth; and 3) Mr. Obama's father was never a United

9 The definition of this clause has been the source of much

debate. See, e.g., Gordon, Who Can Be President of the United

States: The Unresolved Enigma, 28 Md. L. Rev. 1 (1968); Jill A.

Pryor, Note, The Natural-Born Citizen Clause and Presidential

Eligibility: An Approach for Resolving Two Hundred Years of

Uncertainty, 97 Yale L.J. 881 (1988); Christina S. Lohman,

Presidential Eligibility: The Meaning of the Natural-Born

Citizen Clause, 36 Gonz. L. Rev. 349 (2000); William T. Han,

Beyond Presidential Eligibility: The Natural Born Citizen

Clause as a Source of Birthright Citizenship, 58 Drake L. Rev.

457 (2010).


19a

States citizen. Plaintiffs contend that, because his

father was not a U.S. citizen at the time of his birth,

Mr. Obama is constitutionally ineligible for the Office

of the President of the United States. The Court does

not agree.

In 2009, the Indiana Court of Appeals

("Indiana Court") addressed facts and issues similar

to those before this Court. Ankeny v. Governor, 916

N.E.2d 678 (Ind. Ct. App. 2009). In Ankeny, the

plaintiffs sought to prevent certification of Mr.

Obama as an eligible candidate for president because

he is not a natural born citizen. Id. at 681. The

plaintiffs argued, as the Plaintiffs argue before this

Court, that "there's a very clear distinction between

a 'citizen of the United States' and a 'natural born

Citizen,' and the difference involves having [two]

parents of U.S. citizenship, owing no foreign

allegiance." Id. at 685. The Indiana Court rejected

the argument that Mr. Obama was ineligible, stating

that children born within the United States are

natural born citizens, regardless of the citizenship of

their parents. Id. at 688. This Court finds the

decision and analysis of Ankeny persuasive.

The Indiana Court began its analysis by

attempting to ascertain the definition of "natural

born citizen" because the Constitution does not

define the term. Id. at 685-86; See Minor v.

Happersett, 88 U.S. 162, 167 (1875) ("The

Constitution does not, in words, say who shall be

natural born citizens. Resort must be had elsewhere

to ascertain that"); see also United States v. Wong

Kim Ark, 169 U.S. 649 (1898) (noting that the only

mention of the term "natural born citizen" in the


20a

Constitution is in Article II, and the term is not

defined in the Constitution).

The Indiana Court first explained that the

U.S. Supreme Court has read the Fourteenth

Amendment and Article II (natural born citizen

provision) in tandem and held that "new citizens may

be born or they may be created by naturalization."

Id. at 685 (citing Minor, 88 U.S. at 167); See U.S.

Const. amend. XIV, § 1. ("All persons born or

naturalized in the United States and subject to the

jurisdiction thereof, are citizens of the United States

. . . ."). In Minor, the Court observed that:

At common-law, with the

nomenclature of which the framers of

the Constitution were familiar, it was

never doubted that all children born in

a country of parents who were its

citizens became themselves, upon their

birth, citizens also. These were natives,

or natural-born citizens, as

distinguished from aliens or foreigners.

Some authorities go further and include

as citizens children born within the

jurisdiction without reference to the

citizenship of their parents. As to this

class there have been doubts, but never

as to the first. For the purposes of this

case it is not necessary to solve these

doubts. Id. at 167-68.

Plaintiffs ask this Court to read the Supreme

Court's decision in Minor as defining natural born

citizens as only "children born in a country of parents


21a

who were its citizens." 88 U.S. at 167. However, the

Indiana Court explains that Minor did not define the

term natural born citizen. In deciding whether a

woman was eligible to vote, the Minor Court merely

concluded that children born in a country of parents

who were its citizens would qualify as natural born,

and this Court agrees. The Minor Court left open the

issue of whether a child born within the United

States of alien parent(s) is a natural born citizen.

Next, the Indiana Court looked to United

States v. Wong Kim Ark, in which the Supreme Court

analyzed the meaning of the words "citizen of the

United States" in the Fourteenth Amendment and

"natural born citizen of the United States" in Article

II to determine whether a child born in the United

States to parents who, at the time of the child's birth,

were subjects of China "becomes at the time of his

birth a citizen of the United States, by virtue of the

first clause of the fourteenth amendment . . ." Id. at

686 (citing Wong Kim Ark, 169 U.S. at 653). The

Indiana Court determined that the two provisions

"must be interpreted in the light of the common law,

the principles and history of which were familiarly

known to the framers of the constitution." Id. (citing

Wong Kim Ark, 169 U.S. at 654). The Indiana Court

agreed that "[t]he interpretation of the constitution

of the United States is necessarily influenced by the

fact that its provisions are framed in the language of

the English common law, and are to be read in the

light of its history." Id. (citing Wong Kim Ark, 169

U.S. at 655) (internal citation omitted). The Wong

Kim Ark Court extensively examined the common

law of England in its decision and concluded that

Wong Kim Ark, who was born in the United States to


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alien parents, became a citizen of the United States

at the time of his birth. Wong Kim Ark, 169 U.S. at

705.10

10

The Wong Kim Ark Court explained:

The fundamental principle of the common law with

regard to English nationality was birth within the allegiance,

also called "ligealty," "obedience," "faith" or "power," of the

King. The principle embraced all persons born within the King's

allegiance and subject to his protection. Such allegiance and

protection were mutual . . . and were not restricted to natural-

born subjects and naturalized subjects, or to those who had

taken an oath of allegiance; but were predicable of aliens in

amity, so long as they were within the kingdom. Children, born

in England, of such aliens, were therefore natural-born

subjects. But the children, born within the realm, of foreign

ambassadors, or the children of alien enemies, born during and

within their hostile occupation of part of the King's dominions,

were not natural-born subjects, because not born within the

allegiance, the obedience, or the power, or, as would be said at

this day, within the jurisdiction of the King. 169 U.S. at 655.

It thus clearly appears that by the law of England for

the last three centuries, beginning before the settlement of this

country, and continuing to the present day, aliens, while

residing in the dominions possessed by the Crown of England,

were within the allegiance, the obedience, the faith or loyalty,

the protection, the power, the jurisdiction, of the English

Sovereign; and therefore every child born in England of alien

parents was a natural-born subject, unless the child of an

ambassador or other diplomatic agent of a foreign State, or of

an alien enemy in hostile occupation of the place where the

child was born. Id. at 658. Further:

Nothing is better settled at the common law than the

doctrine that the children, even of aliens, born in a country,

while the parents are resident there under the protection of the

government, and owing a temporary allegiance thereto, are

subjects by birth. Id. at 660 (quoting Inglis v. Trustees of


23a

Relying on the language of the Constitution

and the historical reviews and analyses of Minor and

Wong Kim Ark, the Indiana Court concluded that:

“persons born within the borders

of the United States are "natural born

citizens" for Article II, Section 1

purposes, regardless of the citizenship

of their parents. Just as a person ‘born

within the British dominions [was] a

natural-born British subject’ at the time

of the framing of the U.S. Constitution,

so too were those "born in the allegiance

Sailors' Snug Harbor, 28 U.S. (3 Pet.) 99, 164 (1830) (Story, J.,

concurring)). And:

The first section of the second article of the constitution

uses the language, 'a natural-born citizen.' It thus assumes that

citizenship may be acquired by birth. Undoubtedly, this

language of the constitution was used in reference to that

principle of public law, well understood in this country at the

time of the adoption of the constitution, which referred

citizenship to the place of birth. Id. at 662 (quoting Dred Scott

v. Sanford, 60 U.S. (19 How.) 393, 576 (1856) (Curtis, J.,

dissenting)).

Finally:

All persons born in the allegiance of the king are natural-born

subjects, and all persons born in the allegiance of the United

States are natural-born citizens. Birth and allegiance go

together. Such is the rule of the common law, and it is the

common law of this country, as well as of England. Id. at 662-63

(quoting United States v. Rhodes, (1866) (Mr. Justice Swayne)).


24a

of the United States natural-born

citizens.” 916 N.E.2d at 688.

The Indiana Court determined that a person

qualifies as a natural born citizen if he was born in

the United States because he became a United States

citizen at birth.11

For the purposes of this analysis, this Court

considered that President Barack Obama was born

in the United States. Therefore, as discussed in

Ankeny, he became a citizen at birth and is a natural

born citizen.

Accordingly,

CONCLUSION

President Barack Obama is eligible as a

candidate for the presidential primary election under

O.C.G.A. § 21-2-5(b).

SO ORDERED, February 3, 2012.

MICHAEL M. MALIHI, Judge

11

This Court recognizes that the Wong Kim Ark case was not

deciding the meaning of "natural born citizen" for the purposes

of determining presidential qualifications; however, this Court

finds the Indiana Court's analysis and reliance on these cases to

be persuasive.


25a

Part D

Constitutional Provisions Involved– Article II

§1 Clause 5; Amendment I; Amendment XIV

Article II §1 Clause 5:

“No person except a natural born citizen, or a

citizen at the time of the adoption of this

Constitution, shall be eligible to the Office of

President.”

Amendment I:

“Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peaceably to

assemble; and to petition the government for a

redress of grievances.”

Amendment XIV § 1:

“All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.”


26a

Part E

Statutory Provisions Involved – O.C.G.A. §§21-2-

15 and 21-2-5

O.C.G.A. §21-2-15:

“This chapter shall apply to any general or

special election in this state to fill any federal, state,

county, or municipal office, to any general or special

primary to nominate candidates for any such office,

and to any federal, state, county, or municipal

election or primary for any other purpose

whatsoever, unless otherwise provided.”

O.C.G.A. §21-2-5:

“Qualifications of candidates for federal and

state office; determination of qualifications

(a) Every candidate for federal and state office who is

certified by the state executive committee of a

political party or who files a notice of candidacy shall

meet the constitutional and statutory qualifications

for holding the office being sought.

(b) The Secretary of State upon his or her own

motion may challenge the qualifications of any

candidate at any time prior to the election of such

candidate. Within two weeks after the deadline for

qualifying, any elector who is eligible to vote for a

candidate may challenge the qualifications of the

candidate by filing a written complaint with the

Secretary of State giving the reasons why the elector

believes the candidate is not qualified to seek and

hold the public office for which he or she is offering.

Upon his or her own motion or upon a challenge


27a

being filed, the Secretary of State shall notify the

candidate in writing that his or her qualifications are

being challenged and the reasons therefore and shall

advise the candidate that he or she is requesting a

hearing on the matter before an administrative law

judge of the Office of State Administrative Hearings

pursuant to Article 2 of Chapter 13 of Title 50 and

shall inform the candidate of the date, time, and

place of the hearing when such information becomes

available. The administrative law judge shall report

his or her findings to the Secretary of State.

(c) The Secretary of State shall determine if the

candidate is qualified to seek and hold the public

office for which such candidate is offering. If the

Secretary of State determines that the candidate is

not qualified, the Secretary of State shall withhold

the name of the candidate from the ballot or strike

such candidate's name from the ballot if the ballots

have been printed. If there is insufficient time to

strike the candidate's name or reprint the ballots, a

prominent notice shall be placed at each affected

polling place advising voters of the disqualification of

the candidate and all votes cast for such candidate

shall be void and shall not be counted.

(d) In the event that a candidate pays his or her

qualifying fee with a check that is subsequently

returned for insufficient funds, the Secretary of State

shall automatically find that such candidate has not

met the qualifications for holding the office being

sought, unless the bank, credit union, or other

financial institution returning the check certifies in

writing by an officer's or director's oath that the


28a

bank, credit union, or financial institution erred in

returning the check.

(e) The elector filing the challenge or the candidate

challenged shall have the right to appeal the decision

of the Secretary of State by filing a petition in the

Superior Court of Fulton County within ten days

after the entry of the final decision by the Secretary

of State. The filing of the petition shall not itself stay

the decision of the Secretary of State; however, the

reviewing court may order a stay upon appropriate

terms for good cause shown. As soon as possible after

service of the petition, the Secretary of State shall

transmit the original or a certified copy of the entire

record of the proceedings under review to the

reviewing court. The review shall be conducted by

the court without a jury and shall be confined to the

record. The court shall not substitute its judgment

for that of the Secretary of State as to the weight of

the evidence on questions of fact. The court may

affirm the decision or remand the case for further

proceedings. The court may reverse or modify the

decision if substantial rights of the appellant have

been prejudiced because the findings, inferences,

conclusions, or decisions of the Secretary of State

are:

(1) In violation of the Constitution or laws of this

state;

(2) In excess of the statutory authority of the

Secretary of State;

(3) Made upon unlawful procedures;


29a

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable,

probative, and substantial evidence on the whole

record; or

(6) Arbitrary or capricious or characterized by an

abuse of discretion or a clearly unwarranted exercise

of discretion.

An aggrieved party may obtain a review of any

final judgment of the superior court by the Court of

Appeals or the Supreme Court, as provided by law.”


Documents

GA Plaintiffs file U.S. Supreme Court Petition for Writ of Certiorari