AL – McInnish v Chapman – Amicus Brief

Ragsdale rocks!!


Amicus Curiae Alabama Democratic Party has an interest in this appeal because the Appellants seek herein to challenge the eligibility of President Barack Obama to have appeared on the ballot as the Democratic nominee for President. “A political party has the right to determine eligibility of its nominees and to refuse to issue a certificate of nomination or to revoke a certificate of nomination if one has been entered.” Bryan v. Hubbard, 6 So.3d 491, 502 (Ala. 2008). In addition, the Alabama Democratic Party has an interest i n ensuring that future Alabama Secretaries of State are not allowed to disqualify a party’s nominees based on internet rumors and unfounded assertions regarding their qualifications.


The trial court dismissed Mclnnish and Goode’s baseless attack on the eligibility of President Obama to seek reelection to the Office of President. The trial court acted correctly, because no Alabama court has subject-matter jurisdiction regarding any matter concerning the reelection of the President. Furthermore, Mclnnish and Goode’s claims for pre-election relief with respect to the 2012 presidential candidates are clearly moot. Stated simply, there i s absolutely nothing any Alabama court can do to change the reality of President Obama’s election to a second term of office.



In November 2012, President Barack Obama was re-elected President of theUnited States of America. As acknowledged by Mclnnish and Goode, the electors duly voted in December and, as the world knows. President Obama was inaugurated in January 2013, Now, however, McInnish and Goode invite this Court to exceed the scope of its jurisdiction by addressing matters concerning the conduct or results of the November 2012 election. This Court should decline the invitation.

“Subject-matter jurisdiction concerns a court’s power to decide certain types of cases. . . . That power is derived from the Alabama Constitution and the Alabama Code.” Ex parte Seymour, 946 So.2d 536, 538( Ala. 2006)(emphasis inoriginal). No provision of Alabama law, constitutional or statutory, gives a court the authority to order the relief sought by Mclnnish and Goode following the 2012 election.

Article II , Section 1, of the United States Constitution provides that “[n]o person except a natural born citizen . . . shall be eligible to the office of President.” According to Mclnnish and Goode, “[t]he core question regarding [President] Obama i s whether he i s a natural born citizen.” Appellants’ brief, at 9. In other words, they question his eligibility to hold the office he has occupied since January 2009. In order to resolve the so-called “question” of President Obama’s eligibility, Mclnnish and Goode seek the following relief:

“We urgently ask this honorable Court to grant this writ ordering the Secretary [of State] to obtain birth certificates from the candidates for President of the United States for the election which was held inNovember, 2012 . . . . If such birth certificates are not forthcoming within 45 days after order of this Court, the votes certified for any candidate not responding should be decertified.”

Appellants’ brief, at 39. Further, according to Mclnnish and Goode, this Court should direct “the Secretary of State … to require all presidential candidates in the recent 2012 election to submit bona fide birth certificates to her for verification.” No provision of Alabama law gives an Alabama court the power to order any such relief.

“This Court has been unequivocal in stating that elections normally do not fall within the scope of judicial review.” Sears v. Carson, 551 So,2d 1054, 1056 (Ala. 1989) , Indeed, “a court does not have jurisdiction to interfere in an election result unless a statute authorizes it to do so.” Etheridge v. State ex rel. Olson, 730 So.2d 1179, 1182 (Ala. 1999) . Section 17-16-40 (2), Alabama Code 1975, provides that the eligibility of certain Alabama officials may be contested following their election, but, as Mclnnish and Goode admit, the “statute does not mention any federal office, and specifically does not mention the Office of President of the United States.” Appellants’ brief, at 33. Furthermore, as they also admit, “Ala. Code 1975, §17-16-44 eliminates jurisdiction to challenge other elections.” Appellants’ brief, at 34. In other words, it is undisputed that there is no statutory basis upon which Mclnnish and Goode may now challenge the eligibility of the President.

^Section 17-16-44 provides, in pertinent part, that “[n]o jurisdiction exists in or shall be exercised by any judge or court to entertain any proceeding for ascertaining the legality, conduct, or results of any election, except so far as authority to do so shall be specially and specifically enumerated and set down by statute.”

Faced with an insurmountable jurisdictional hurdle, Mclnnish and Goode resort to a complete mischaracterization of their claims, arguing that their “lawsuit does not seek to question the legality of the election, nor does it impact the ‘conduct’ of the election, nor does it contest the results of the election.” Appellants’ brief, at 36. However, their own words belie this description of the purpose of their lawsuit and the nature of the relief they seek. Mclnnish and Goode seek to challenge President Obama’s eligibility by having the Court “[direct the Secretary of State] to require all presidential candidates in the recent 2012 election to submit bona fide birth certificates to her for verification.” Id.,at 10. “[T]his lawsuit is about the eligibility of those [who] participate[d] in the election.” Id,, at 36. If such a birth certificate does not satisfy the Secretary of State that a candidate was eligible for the office he sought, or if a candidate does not provide such a birth certificate, Mclnnish and Goode would have the votes for such candidate “decertified.” Id.,at 39.

Issues regarding the eligibility of a candidate who appeared on a ballot clearly concern the conduct of the election, and the relief sought could affect the results of the election. No Alabama court has been given the authority to address the post-election issues raised by Mclnnish and Goode or to grant the relief they request. Consequently, the trial court properly dismissed the case.


Eight months after Mclnnish learned that the Secretary of State would not investigate the eligibility of any presidential candidate, he and Goode filed this case. (C. 9.) In their petition, they requested that “the court order the Secretary of State to demand that all [presidential] candidates . . . cause a certified copy of their bona fide birth certificate to be delivered to the Secretary directly from the government official in charge of the record depository in which it is stored,” and that “the receipt of such [certificate be made] a prerequisite to their name being placed on theAlabama ballot for the November 6, 2012 general election.” Appellants’ brief, at 1. Further, they requested that the court “issue a preliminary and permanent injunction preventing the placement on the 2012 Alabama ballot until their eligibility had been conclusively determined.” Id. By their own admission, Mclnnish and Goode question whether President Obama meets the requirement that one elected to the office of President must be a natural born citizen, and they filed this action to require verification of his eligibility. Id., at 9-10. Without any doubt, their claims for pre-election relief with respect to the 2012 presidential candidates are now moot.

“case is moot when it no longer presents a live controversy with respect to which the court can give meaningful relief.'” Smith v. Allen, 502 F.3d 1255, 1267 (11th Cir, 2007) (quoting Mingkid v. U.S. Att’y Gen. , 468 F.3d 763, 768 (11th Cir. 2006)), See also Barber v. Community Outreach, Inc., 42 So.3d 65, 71 n.5 (Ala. 200 9) (stating that the question is whether there can be any effective relief).

Both legally and factually, there can be no meaningful or effective relief with respect to the 2012 presidential election. As already demonstrated, no Alabama court has the authority to delve into the legality, conduct, or results of that election. Because no relief is available after the election with regard to the candidates, ipso facto, the pre-election claims involving the candidates are moot.

President Obama appeared on the Alabama ballot as the nominee of the Democratic Party. The election was held and the results were certified long ago. Although all for the Alabama’s electoral votes were cast, consistent with the popular vote, for the nominee of the Republican Party, a majority of the nation’s electoral votes were cast for President Obama and, thus, he was reelected. He has been inaugurated and will serve as this country’s president until January 2017. There i s absolutely nothing that any Alabama court can do to change this reality. Thus, any action a court might take would be of no meaning or effect.

Finally, the object of Mclnnish and Goode’s scorn, President Obama, cannot be elected again to the office of President. Amendment XXII, Section 1, of the United States Constitution provides that “[n]o person shall be elected to the office of President more than twice.” Consequently, President Obama’s appearance on an Alabama ballot as a presidential candidate i s not capable of repetition and, therefore, nothing involving his eligibility for such a candidacy can fall within the “capable of repetition yet avoiding review” exception to the mootness doctrine.


These people could have personally witnessed Obama being born out of an apple pie, in the middle of a Kansas wheat field , while Toby Keith sang the National Anthem and they’d still think he was a Kenyan Muslim, “

-Jimmy Kimmel

Mclnnish and Goode repeatedly assert that they provided the Secretary of State and the Montgomery County Circuit Court with substantial “credible evidence” that President Obama’s birth certificate is a “forgery.” In reality, Mclnnish and Goode submitted no admissible evidence whatsoever and merely repeated discredited rumors and allegations which have been rejected by every authoritative court and tribunal that has reviewed them.

Instead of producing any real evidence, Mclnnish and Goode asked the Secretary of State to interfere with a national Presidential election based on unsubstantiated “opinions” and “beliefs” that have nothing to do with any kind of proper forensic analysis, and everything to do with a jaundiced and jaded political agenda.

In order for one to accept the claim that President Obama’s birth certificate is a forgery, one has to buy into a conspiracy theory so vast and byzantine that it sincerely taxes the imagination of reasonable minds. More importantly, in order to entertain the theory advanced by Mclnnish and Goode and others of their ilk , one has to selectively ignore undeniable facts. The undisputed facts make it abundantly clear that Barack Obama was born in Honolulu, Hawaii on August 4, 1961.

[NBC: The following is admissible under the rule of Judicial Notice]

First, there is no dispute that President Obama’s birth was publicly announced in the local Honolulu newspapers in 1961:

See Honolulu (HI) Advertiser, Aug. 13, 1961, p. B-6; See also Honolulu Star-Bulletin, Aug. 14, 1961.

As a consequence, any theory that concludes that the President’s birth certificate is forged has to start with the incredible acknowledgment that the conspiracy began more than forty years ago. Further, one has to also believe that the President’s parents went to the extraordinary lengths to falsely announce their son’s birth in Hawaii because they were convinced that four decades later he would need to prove that he was a natural born citizen in order to become the first African-American President of the United States.

Second, it is also undisputed that the State of Hawaii – on multiple occasions – has officially and unequivocally certified and verified that Hawaii has and maintains the original, paper copy of President Obama’s 1961 birth certificate showing his birth in Honolulu. See October 31, 2008 and July 27, 2009 Statements by Dr. Chiyome Fukino,

Director of Hawaii State Department of Health, attached hereto as Exhibit A. Anyone believing in Mclnnish and Goode’s bizarre conspiracy theory has to assume that dozens of career employees of the Hawaii Department of Health and Registrar ofVital Statistics are in on the plot.

Third, in 2011, the Director of the Hawaii Department of Health, Dr. Loretta J. Fuddy, at the request of the President, provided the White House with two certified copies of the President’s original Certificate of Live Birth. See April 25, 2011 letter from Dr. Fuddy to President Obama, attached hereto as Exhibit B. These certified copies are self-authenticating under Alabama law. See Ala.R.Evid. 902.

Fourth, on at least two additional occasions since 2011, the State of Hawaii formally verified that the certified copy of the President’s birth certificate posted on the White House website is a true and correct copy of the original, paper birth certificate maintained by the State of Hawaii. See May 22, 2012 and May 31, 2012 Verifications of Birth, attached hereto as Exhibit C. Indeed, one of those formal certifications was issued to the Secretary of State of Arizona, the very state that Sheriff Arpaio calls home.

Finally, in order to accept Mclnnish and Goode’s conspiracy theory, one has to assume that the President’s forged birth certificate was so convincing that it was not challenged during a grueling primary and two general election campaigns for President and that neither Hillary Clinton, John McCain nor Mitt Romney could muster the evidence necessary to convince anyone that their opponent was ineligible to hold the office of President of the United States.

The truth is that the “birther” movement has no legitimacy in either the facts or the law. The few individuals who still promote the position that President Obama is not a natural born citizen do so for purely ideological reasons (or, in the case of the handful of lawyers who use the cause to raise money on the internet, personal financial gain). Scores of state and federal courts have summarily rejected efforts to have the judiciary intervene i n the political process on behalf of this tiny cabal of zealots. This Court should do likewise.

^ As one court has noted: “Many people, perhaps as many as a couple of dozen, feel deeply about this issue.” Hollister v. Soetoro, 258 F.R.D. 1, 2 (D.D.C. 2009), aff’d, 368 Fed.Appx. 154, 2010 WL 1169793 (D.C. Cir, 2010).


The entirety of the Appellants’ case is premised on a tortured reading of Attorney General’s Opinion No. 1998- 200.^ In Opinion No. 1998-200, Attorney General Bill Pryor’s office opined:

The Code does not require the Secretary of State to determine whether each nominee meets all the qualifications for his or her particular office. Some of the qualifications, however, are within the Secretary of State’s official knowledge. By official knowledge I mean knowledge gained from an official source arising from the performance of duties prescribed by law. … If the Secretary of State has official knowledge that a candidate has not met a certifying qualification, the Secretary of State should not certify the candidate.

Atty. Gen . Op. No. 1998-200 at 3 (emphasis added) . After giving two discrete examples of the circumstances under which the Secretary of State might have “official knowledge” of a candidate’s lack of qualifications (failure to file required ethics disclosures and failure to meet a statutorily established filing deadline), Opinion No. 1998- 200 concludes:

The Secretary of State does not have an obligation to evaluate all of the qualifications of the nominees of political parties and independent candidates for state offices prior to certifying such nominees and candidates to the probate judges pursuant to sections [§17-9-3] and [§17-13-22] of the Code of Alabama.

Id. at 4.

Opinion No. 1998-200, therefore, clearly provides that the Secretary of State has no duty to investigate the qualifications of candidates unless she has “official knowledge” from an “official source” that such candidate is not qualified. The information provided to the Secretary of State in the present case is about as far from “official knowledge” as you can get.

Of course, as this Court is well aware, “an attorney general’s opinion is only advisory; it is not binding on this Court and does not have the effect of law.” Farmer v. Hypo Holdings, Inc. , 675 So.2d 387, 390 (Ala. 1996) . See also Townson v. Stonicher, 933 So.2d 1062, 1066 (Ala.) (“An attorney general’s opinion is not binding on this Court and does not have the effect of law.”); State Dept. of Revenue v. Arnold, 909 So.2d 192, 194 (Ala. 2005) (Attorney General opinions are not controlling, but merely advisory, and serve to offer protection from liability only to ‘such officer’ to whom that opinion is directed.”).

A. A County Sheriff from Arizona is not an “Official Source” of Anything in Alabama.

In support of their claim that the Secretary of State has a duty to investigate President Obama’s birth certificate, Mclnnish and Goode slavishly rely on the affidavit of a politically motivated and ethically challenged county sheriff from Arizona named Joe Arpaio {“Arpaio”). Under pressure from a federal investigation for racial profiling and mistreating prisoners in his care, Arpaio convened a group of his political supporters in 2011 under the name of the “Cold Case Posse.” Arpaio claims that he has the authority under Arizona law to assemble his supporters into a “volunteer posse” to assist him in his duties.^ It was this “volunteer posse” of Arpaio political supporters who ultimately expressed their collective “belief” that the copy of President Obama’s birth certificate was a “forgery.”

Mclnnish and Goode cite no authority for their assertion that the “beliefs” of a county sheriff from Arizona is the type of “official source” that can imbue the Alabama Secretary of State with “official knowledge” regarding a political candidate’s eligibility to hold office. Arpaio has no legal authority to do anything in Alabama and certainly has no legal authority to enforce Alabama law in this State. According to the National Sheriffs Association, there are 3,083 sheriffs in the United States, See Surely, Attorney General’s Opinion No. 1998-200 cannot be interpreted as requiring the Alabama Secretary of State to commence an investigation any time one of those 3,000 county sheriffs decides to express an opinion about a candidate’s qualifications or eligibility.

* Alabama has an unfortunate history with the use of sheriff’s “posses.” See, e.g., U. S. v. Clark, 249 F.Supp. 720, 728 (M.D. Ala. 1965)(enjoining county sheriff’s voluntary posse from intimidating and interfering with the constitutional rights of black voters).

Nor does the information submitted by Mclnnish and Goode “arise from official duties prescribed by law.” As Opinion No. 1998-200 makes clear, the only time that the Secretary of State has any duty to evaluate the qualifications of candidates is when she receives information during the performance of her “official duties prescribed by law.” The information offered up by Mclnnish and Goode was neither created nor received by the Secretary of State during the course of her performing her official “duties prescribed by law.”

Even if this Court were inclined to find that Attorney General Opinion No. 1998-200 is binding on the Secretary of State, the information offered by Mclnnish and Goode does not fall within the very limited scope of information on which the Secretary of State is required to act. As a result, Secretary Chapman had no legal duty or obligation to initiate an investigation into President Obama’s qualifications and the Circuit Court was correct to dismiss this case.

B. The Affidavits and Other Documents Submitted are Inadmissible and Not Worthy of Belief.

Finally, it is also worth noting that none of the information submitted by Mclnnish and Goode in the Circuit Court constituted admissible evidence. In particular, both the Arpaio affidavit and that of his sidekick Michael Zullo are filled with supposition and subjective beliefs that would never be admitted into evidence i n any Alabama court. See, e.g., Arpaio affidavit at ^ 7, 8 (“it is my belief that forgery and fraud was likely committed”; “My investigators and I believe”); Zullo affidavit at ^ 8 (“the Hawaii Department of Health has engaged in what Sheriff’s investigators believe is a systematic effort to hide”). These kinds of subjective statements of an individual’s “beliefs” are clearly inadmissible. See Government Street Lumber Co. , Inc. v. AmSouth Bank, N.A. , 553 So.2d 68, 78 (Ala. 1989) (“Speculation and subjective beliefs are not the equivalent of personal knowledge and do not satisfy the requirement of Rule 56(e), A.R.Civ.P. Moreover, matters based upon information and belief are essentially hearsay and thus are insufficient to support a motion for summary judgment.”). See also Dennis v. Scarborough, 360 So.2d 278, 279 (Ala. 1978) {“Ordinarily, the reports of investigating officers are not admissible in evidence. They are deemed hearsay and do not fall within the ‘business records’ exception to that exclusionary rule.” (Citations omitted)).

Finally, it should be noted that nothing submitted by Mclnnish and Goode indicates that Arpaio or Zullo are even remotely qualified to provide an expert opinion regarding the authenticity of any document – much less a 40-year-old government record from Hawaii. See Townsend v. General Motors Corp., 642 So.2d 411, 423 (Ala. 1994) (“a witness must be qualified as an expert before he can give an opinion as an expert”).


For the reasons set forth i n this brief, as well as those argued by the Secretary of State, the judgment of the trial court is due to be affirmed.


SIROTE ScPERMUTT, P.C. 2311 Highland Avenue South Post Office Box 55727 Birmingham, AL 35255-5727 Tel.: (205) 930-5100

Fax: (205) 930-5335


Alabama Democratic Party

Respectfully submitted,

/s/ Thomas A Woodall

Thomas A. Woodall (WOO009)

/s/ Barry A. Ragsdale

Barry A, Ragsdale (RAG003)

for amicus curiae