Orly’s draft letter to AL Supreme Court Justice Moore

When the law fails, it’s time for flattery [Warning: Link to Orly’s blog, click at your own risk]… In a draft letter to Judge Moore she ‘observes’ that

Orly: I read your brilliant analysis in McInnish v Chapman, a case relating to Barack Obama’s run for the U.S. President while using a fabricated birth certificate.

Orly insists, without much legal supporting evidence that under 18 USC 3332, any judge may forward information to a grand jury. In fact the only legal cases she does reference have no relevance to the issue, but are meant to remind Moore of what a Federal Judge did when he forced Moore to remove a religious statue.

What Orly, and others, may have failed to realize is that there are two statutes under which a grand jury may be convened and these grand juries are very different beasts.

One involves 18 U.S. Code Chapter 216 – SPECIAL GRAND JURY, to which Orly is referring and which requires that a Special Grand Jury is summoned every 18 months in districts with more than 4 million inhabitants or in which the Attorney General, the Deputy Attorney General, the Associate Attorney General, or any designated Assistant Attorney General, certifies in writing to the chief judge of the district that in his judgment a special grand jury is necessary because of criminal activity in the district.

Of course, it should not come as a surprise that Orly’s reference to Moore’s “brilliant analysis” overlooks that he supports the simple truths she has fought so hard against.

For example, Moore claims that

The jurisdiction-stripping statute forbids inquiry into the eligibility of presidential candidates once an election has occurred, but it does not preclude such an inquiry before the election.

As to challenges to the President Elect

The Constitution assigns Congress the responsibility to resolve challenges to the qualifications of a President-elect or a sitting President.

Moore then cites without criticism, Rhodes v MacDonald

Once the states have cast their electoral votes, “the issue of the President’s qualifications and his removal from office are textually committed to the legislative branch and not the judicial branch.” Grinols v. Electoral Coll., (No. 2:12–cv–02997–MCE–DAD, May 23, 2013) (E.D. Cal. 2013) (not reported in F. Supp. 2d). See also Rhodes v. MacDonald, 670 F. Supp. 2d 1363, 1377 (M.D. Ga. 2009) (noting that “if the President were elected to the office by knowingly and fraudulently concealing evidence of his constitutional disqualification, then [the] mechanism [of impeachment] exists for removing him from office”).

Moore also cites a Strunk case, always a good one to cite…

Because Congress completely occupies the field of determining the qualifications of a President-elect or a sitting President to hold office, the political-question doctrine ousts federal courts from having jurisdiction over those particular questions.19 State courts should not rush in where federal courts decline to tread. See Strunk v. New York State Bd. of Elections, 35 Misc. 3d 1208(A), 950 N.Y.S.2d 722 (table) (Sup. Ct. 2012) (unreported disposition) (“Federal courts have no role in this process. Plainly, state courts have no role.”). The doctrine of field preemption requires that states not regulate in an area exclusively occupied by Congress. Preemption occurs “where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the states to supplement federal law ….” Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 368 (1986) (quoted in General Motors Corp. v. Kilgore, 853 So. 2d 171, 174 (Ala. 2002)). Field preemption has been found when the need exists for uniform federal treatment of a subject. See Davis v. Redstone Fed. Credit Union, 401 So. 2d 49, 51 (Ala. Civ. App. 1979).

Under the political-question and preemption doctrines, Alabama state courts are without power to regulate the conduct of a presidential election after the President-elect has been selected. Likewise, the Secretary of State also lacks authority to decertify Alabama’s electoral votes for the President-elect.

As to President Obama

Section 17-16-44 forbids any state court from ordering the Secretary of State to decertify the votes cast for a presidential candidate after a general election has taken place. Further, any remedy in regard to the qualifications of a President-elect is a congressional responsibility. Once the election of 2012 occurred and Alabama’s electoral votes were certified by the Governor and cast on the day designated, the State lost jurisdiction under both state and federal law to alter its electoral votes, thereby making issues of ineligibility or decertification moot.

Brilliant…

Of course, Moore’s analysis could hardly be called a legal masterpiece but if Orly insists otherwise, she has to abide by the consequences of her position.

To explore some of Moore’s deficiencies, we need not look further than the concurring opinion

As noted above, Chief Justice Moore concludes in his special writing that the Secretary of State has an affirmative duty to investigate the qualifications of a candidate for President of the United States of America before printing that candidate’s name on the general-election ballot in this State. Although logically the Secretary of State, being the chief elections official of the state, should be vested with such a duty, under our present constitutional and statutory framework addressing elections, including presidential elections, not only is that not the case, but the Secretary of State would be bereft of written authority for such an action and ill equipped from a practical standpoint to carry out such an important duty.

The Office of Secretary of State is a constitutional office whose general duties are prescribed in Ala. Const. 1901, Art. I, § 134, as follows:

“The secretary of state shall be the custodian of the great seal of the state, and shall authenticate therewith all official acts of the governor, except his approval of laws, resolutions, appointments to office, and administrative orders. He shall keep a register of the official acts of the governor, and when necessary, shall attest them, and lay copies of same together with copies of all papers relative thereto, before either house of the legislature, when required to do so, and shall perform other duties as may be prescribed by law.”

The general duties and scope of the Secretary of State’s office are codified in § 36-14-1 et seq., Ala. Code 1975. Section 17-1-3, Ala. Code 1975, provides that the Secretary of State is the chief elections official in the State and, as such, shall provide uniform “guidance” for election activities. It is, however, a nonjudicial office without subpoena power or investigative authority or the personnel necessary to undertake a duty to investigate a nonresident candidate’s qualifications, even if such a duty could properly be implied.

Exploring the inconsistencies between two sections of the Alabama code, is resolved by observing that:

“The provisions of Section 17-9-3 … shall apply to presidential preference primaries held under the provisions of this article unless clearly inconsistent herewith or inappropriate for the conduct of a presidential preference primary.” § 17-13-101, Ala. Code 1975. Section 17-14-31(a), Ala. Code 1975, provides:

“(a) When presidential electors are to be chosen, the Secretary of State of Alabama shall certify to the judges of probate of the several counties the names of all candidates for President and Vice President who are nominated by any national convention or other like assembly of any political party or by written petition signed by at least 5,000 qualified voters of this state.”

These sections, when read together, require only that the Secretary of State certify and include on the general-election ballot those presidential candidates who have been nominated by their respective parties following that party’s national convention and who are otherwise qualified to hold the office of President. However, nothing in the express wording of these statutory provisions imposes upon the Secretary of State the duty to affirmatively investigate the qualifications of a presidential candidate. Consistent with this conclusion is Op. Att’y Gen. No. 1998-00200 (August 12, 1998), which states:

“The Secretary of State does not have an obligation to evaluate all of the qualifications of the nominees of the political parties and independent candidates for state offices prior to certifying such nominees and candidates to the probate judges pursuant to [§ 17-9-3, Ala. Code 1975]. If the Secretary of State has knowledge gained from an official source arising from the performance of duties prescribed by law, that a candidate has not met a certifying qualification, the Secretary of State should not certify the candidate.”

Rather, the Secretary of State contends that the task of ensuring a candidate’s qualifications is left to the leadership of that candidate’s respective political party, a less than ideal procedure for all challengers because of its partisan nature. See generally Knight v. Gray, 420 So. 2d 247 (Ala. 1982) (holding that the Democratic Party had the authority to hear pre-primary challenges to the political or legal qualifications of its candidates).

The judge also cites Keyes v Bowen, another Orly/Kreep gift that keeps on giving…

Courts in other states have tended to agree that the investigation of eligibility requirements of a particular candidate is best left to the candidate’s political party. In Keyes v. Bowen, 189 Cal. App. 4th 647, 117 Cal. Rptr. 3d 207 (2010), the plaintiffs brought an action against California’s Secretary of State and others, alleging that there was reasonable doubt that President Obama was a natural-born citizen, as is required to become President of the United States (U.S. Const., Art. II, § 1) and that the Secretary of State had a ministerial duty to verify that President Obama met the constitutional qualifications for office before certifying him for inclusion on the ballot. The trial court entered a judgment against the plaintiffs, concluding that the Secretary of State was required to see that state election laws were enforced, but that the plaintiffs had failed to identify a state election law imposing a duty upon the Secretary of State to demand documentary proof of birthplace from presidential candidates. Id. The plaintiffs appealed.

The Alabama court has handed a solid defeat to the birthers. Next, Zullo and his clown posse…. I predict that nothing will happen in March, and that when the announcements are made, they will fizzle away, just like their claims about the PDF forgery. Claims they have failed to correct btw, even though they have been made aware of the evidence.

Orly’s prayers that a judge will forward her ‘information’ to a grand jury will remain unanswered and Obama will be “removed from office” in 2017 when the voters have elected his successor.

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