VOL. 18  ISSUE NO. 1   | JANUARY 4 – 10, 2012


Obama eligibility challenges move forward in Georgia

‘[A] minority of Americans have an absolute right to be protected from a non-natural-born-citizen being elected President’


ATLANTA – On Jan. 3, 2012, Georgia Administrative Law Judge Michael M. Malihi, who consolidated several cases challenging Barack Obama’s eligibility to be placed on the primary ballot in Georgia, issued an order denying Obama’s motion to dismiss those challenges.

In a footnote, Malihi stated, “Because defendant’s motion to dismiss is denied, in the interest of efficiency, the court finds it unnecessary to wait for plaintiffs’ responses before denying the motion.”

In November, Attorney Van Irion of the Liberty Legal Foundation filed a challenge in the Georgia Office of State Administrative Hearings, on behalf of Plaintiff David Welden, challenging Barack Obama’s eligibility to be placed on the state’s primary election ballot.

Attorney Orly Taitz, on behalf of plaintiffs David Farrar, Leah Lax, Cody Judy, Thomas Malaren and Laurie Roth, also filed a challenge to Obama being placed on the Georgia presidential primary ballot, as did Attorney J. Mark Hatfield, who filed separate challenges on behalf of Carl Swensson and Kevin Richard Powell.

Irion, in possibly the only objection already filed to Obama’s motion to dismiss, stated, “Contrary to the defendant’s assertions, the issue presented by the plaintiff is grounded on one uncontestable fact and one clear definition from the U.S. Supreme Court,” and cited Minor v. Happersett.

He went on to say, “It is undisputed that President Obama’s father was never a U.S. citizen. To plaintiff’s knowledge Mr. Obama has never denied the fact that his father was not a U.S. citizen, nor has he ever made any statements contrary to this fact.

“The U.S. Supreme Court has defined ‘natural-born citizens’ as ‘all children born in a country of parents who were its citizens.’”

While the Happersett court went on to state that there were other sub-categories of people who may or may not fit within the broader term “citizen,” Irion pointed out it did so only after specifically identifying the narrower category “natural-born citizen.”

Irion argued, “Because it is undisputed that Mr. Obama’s father was not a U.S. citizen, the defendant can never be a natural-born citizen, as that term was defined by the U.S.
Supreme Court. Therefore, the defendant cannot meet the constitutional requirements to hold the office of President.”

Georgia Election Code states: “Every candidate for federal and state office … shall meet the constitutional and statutory qualifications for holding the office being sought.”

Despite the clear language of the code, Obama claimed, in his motion to dismiss, the law doesn’t apply to presidential primaries.

Irion called that argument “absurd” and stated, “If the state of Georgia intended presidential primaries to not be considered elections it would not codify the administration of such primaries within Title 21 of Georgia’s codes, entitled ‘Election Code.’”

Irion argued the code does not include an exception for presidential candidates because the legislature didn’t intend to make such an exception.

Pointing to the absurdity of Obama’s argument, Irion said in order for it to make sense, the presidential primary would need to be administered without candidates.

“However,” he wrote, “Georgia Election Code specifically requires the political parties to ‘submit to the secretary of state a list of the names of the candidates of such party to appear on the presidential preference primary ballot’ … the list of names submitted by the parties to the secretary of state are ‘candidates’ in the presidential primary.”

Irion noted the relevant portion of statute states, “The secretary of state … may challenge the qualifications of any candidate prior to the presidential primary.”

He said, “Since no one has been elected to the office of President of the United States for the term of office beginning in January 2013, today is still ‘any time prior to the election of such candidate.’”

Irion called Obama’s conclusion that the issue raised by Welden was “soundly rejected by 69,459,897 Americans in the 2008 elections” “offensive to the Constitution” and said, “This statement reflects a complete lack of understanding regarding constitutional protections.”

He argued, “Contrary to the defendant’s assertion, voters are not the final arbiters of whether an individual is qualified to hold office. America is a Constitutional Republic, not a democracy without a constitution. In a Constitutional Republic the power of the majority is limited and cannot infringe upon protected rights of a minority.

“The Constitution is an anti-majoritarian document; meaning that it protects individuals from invasions and usurpations by the majority. Constitutionally protected rights are held inviolate regardless of the majority’s desire to violate them. Without such protections any law enacted by Congress would be valid, even if it denied an individual their right to life, liberty, or property.”

Without such protections, Irion said, “Congress could legalize the killing of all Jews, for example, as was done in World War II Germany. Constitutional requirements are absolute, and must be followed regardless of how popular or unpopular such requirements may be, because they are in place to protect the minority.”

Obama’s “presumption that the popular vote overrides the Constitution demonstrates his lack of understanding of the Constitution and emphasizes the critical role played by this court in protecting Americans from a tyrannical majority,” wrote Irion.

Further, Irion stated, “Contrary to the defendant’s statement, a minority of Americans have an absolute right to be protected from a non-natural-born-citizen being elected President.”

Malihi agreed with plaintiffs’ arguments that Georgia Election Code mandates “every candidate for federal and state office” shall meet the constitutional and statutory qualifications for holding the office being sought, both the secretary of state and electors of Georgia are granted the authority under the code to challenge the qualifications of a candidate, and plaintiffs timely filed their complaints challenging the presidential candidate’s qualifications in the presidential preference primary.

Malihi said, “Statutory provisions must be read as they are written … Where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.”

Reiterating the section of code stating “every candidate for federal and state office” must meet the qualifications for holding that particular office, Malihi said he has seen no case law limiting this provision, any language that contains an exception for the office of president or stating the provision doesn’t apply to the presidential preference primary.

In his order denying the defendant’s motion to dismiss, Malihi found Obama is “a candidate for federal office who has been certified by the state executive committee of a political party, and therefore must, under Code Section 21-2-5, meet the constitutional and statutory qualifications for holding the office being sought.”

Taitz was almost moved to tears upon learning of Malihi’s ruling and said, “Finally, after three years of battle, for the first time a judge ruled that Obama’s motion to dismiss is denied.”