MS – Orly v Democrat Party – BB Part III
Taitz’s Opposition to the SOS’s Motion for Judgment on the Pleadings
Taitz: Mr. Matheny is saying that the court doe not have power to enjoin the SOS. The court does have the power to order the SOS to not certify the election. There was a case against Mr. Hosemann in 2004 that enjoined the SOS. Was about poaching in the open primary. Democratic Party was the plaintiff. This court issued declaratory relief and injunctive relief. The Fifth Circuit reversed that decision, but stated “yes, court has right to issue declaratory relief, injunctive relief, but there has to be a particular party to direct it at.” She refers to a California case, Rehne.
Taitz then asserts that Keyes v. Bowen [cited by Mr. Dukes] was a decision “that went against all precedents.” Went against Cleaver, blah blah blah. Obama’s mother’s passport shows his name was Soebarkah, he was adopted. Two names. We don’t know which one he is using is his real name.
This draws objections — goes beyond the arguments on the motions.
Taitz: Complaint is ripe. “They actually conceded the complaint was not late.” [BB's commentary: WTF? How does she arrive at that conclusion?]
The Court: He [Matheny] argued that your allegations are moot.
Taitz: Obama did not become nominee of party until September 6.
The Court: Does the SOS have an option? [to not certify the vote count]
Taitz: Cleaver case. “This court has power. We are asking to keep the SOS in this case so if the court decides to issue declaratory relief and injunctive relief. Keep the SOS in this case because he is indipensable party.”
Matheny: Regarding Democratic Party v. Barbour, the injunctive relief [referred to by Taitz] was thrown out by the Fifth Circuit. Cleaver was an unreported decision. Under the California rules, there is a prohibition from citing unreported cases. Additionally, we are dealing with what the SOS’s duties are under Mississippi law [not California law]. “Courts don’t go around telling officials, especially the SOS, how to do their ministerial duties.” Declaratory relief relates to when a plaintiff comes into court claiming that officials violated the Constitution. For instance, if a First Amendment right was violated, such as something that the SOS might have done to injure the plaintiff’s First Amendment rights, then he could be enjoined. Here, there is no constitutional right that has been violated. There is no state law right to assert the claims here.
Matheny: “Plaintiffs have not identified any duty that the SOS has not done.”
The Court: [to Taitz] “What do you ask the court to enjoin the SOS from doing?”
Taitz: “Final certification of election results.” This would influence other courts [to follow suit].
The Court: “What you are asking, if I am persuaded by your argument, is to throw out the election. What duty does the SOS have with regard to certifying, other than counting the votes?”
Taitz: “Good question. It’s hard to tell.”
The Court: “What authority does the SOS have to determine eligibility?”
Taitz: “He is number one election official.” “This is uncharted territory.”
The Court: “What are the statutes upon which you depend — Mississippi statutes — that would allow the SOS to void an election?”
Taitz: “There is no statute explaining this.”
The Court: “Are we not saying that the SOS is certifying what the votes are?”
Taitz: “What is certification, your Honor?” [She means, what is certification, but that the candidate is eligible.]
The Court: “Is that your argument?”
Matheny: [rising to explain] “He is certifying the number of votes that came in. Plaintiffs cannot point to a single statute that would allow the SOS to throw out the election.”
The Court: [to Taitz] “Do you have a statute?”
Tatiz: [Dodges the question.]
The Court: Do you have a statute that shows the SOS can determine eligibility?
Taitz: “23-15-961 and -963 deal with challenges to put names on the ballot.”
Matheny: “I have copies of section -961 and -963. They don’t even mention the SOS.”
The Court: “Give her a copy.”
Matheny hands Taitz copies of section -961 and -963.
The Court: “Are these the statutes you cited?”
Taitz reads them. “These are the statutes.”
The Court: “Do these statutes mention the SOS? Show me where it mentions the SOS.” Judge Wingate announces a recess so that Taitz can read the statutes. At 4:25 the hearing resumes.
Taitz: “23-15-785, the SOS certifies the names of candidates nominated by the parties.”
Matheny: “It [23-15-785] has nothing to do with certifying the election results.”
Judge Wingate is showing impatience. “Next argument.”
Democratic Party’s Motion for Judgment on the Pleadings
Begley: He will address state law election claim re: the Mississippi. Tepper will address the RICO action.
Begley: “First, this lawsuit is moot. The election has occurred. The original complaint was filed under 23-15-961. Our motion addressed the timeliness of that. The FAC was brought under 23-15-963. We’ve made an argument that that action also was untimely.”
“Second, there was no exhaustion of administrative remedies. Orly Taitz lodged a complaint with the Mississippi Democratic Executive Commmittee, but none of the other plaintiffs did.” Section -963 only applies to independent candidates.
Third, “Ms. Taitz is not a Mississippi resident. She has no standing to pursue election challenge procedures in the State of Mississippi. Mr. Fedorka is [a Mississippi resident], but he never followed the contest procedure, therefore he does not have standing. There is no specific injury.” Any injury has to be specific to the plaintiff.
Finally, the Twelfth Amendment and United State Code have procedures. “This is a matter to be lodged in the Congress and Electoral College.”
The Court: Authority?
Begley: Keyes v. Bowen. It was a seminal case. “She [Taitz] was counsel. She came up short.”
The Court: “The process is outside the purview of federal court review?”
Begley: “Yes, unless there is a constitutional violation, like, say, section 1983. The process is the Electoral College.” Begley explains that the Presidential Preference Primary is a device for apportionment of delegates to the national conventions.