OFFICE OF STATE ADMINISTRATIVE HEARINGS STATE OF GEORGIA
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS
The Plaintiff, David Welden, respectfully submits this opposition to Defendant’s motion to dismiss.
Statement of Facts
For the reasons set forth below, none of the facts asserted by the Defendant are relevant. The only fact relevant to this case is the fact that the Defendant’s father was not a U.S. citizen. This fact has been repeatedly documented and stated by the party opponent, Defendant Obama. This fact is also evidenced by Plaintiff’s exhibit 6, previously submitted with Plaintiff’s pre-trial order and apparently authenticated by Defendant’s citation to this exhibit in Defendant’s “Statement of Material Facts Not in Dispute,” number 7.
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C. Right to Associate Doesn’t Negate Georgia Election Law
The Democratic Party of Georgia’s Constitutional right to determine its membership coexists with Georgia’s right to govern Georgia. Georgia code does not interfere with the autonomy of the political party’s internal decision making because it does nothing to prohibit the parties from submitting any name to the Secretary of State for inclusion in the Presidential primary. The Party is free to submit Saddam Hussein or Mickey Mouse as their next Presidential candidate. However, Georgia is not required to accept such submissions and waste taxpayer money on ballots for such candidates.
Georgia code does not prevent the political parties from submitting any name. Instead the code simply determines what the State does with the 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 the Party from choosing candidates to submit, in its “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 include the Defendant in its organization. The Party can and did include the Defendant in the Party’s list of candidates. The Party’s rights, however, end there. Its rights cannot force the State to place the Defendant’s name on a ballot after the State determines that the Defendant 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.4
The Defendant’s argument would logically require 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 Defendant’s argument fails. If his argument succeeds, many election codes across the country will need to be re-drafted.
D. Defendant’s Conclusion is Offensive to the Constitution
The Defendant states that the issue raised by the Plaintiff was “soundly rejected by 69,456,897 Americans in the 2008 elections.” See Def.’s Mtn. at 5. This statement reflects a complete lack of understanding regarding Constitutional protections.
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 the anti-majoritarian protection of the Constitution, 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.
The Defendant’s presumption that 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. 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.
E. Contrary to the Defendant’s Assertion, No Court has Ruled on the Question Presented
The Defendant asserts that the issue raised by the Plaintiff has been defeated by “every judicial body ever to have considered it,” citing dozens of cases. See Def.’s Mtn. at 5-6. However, unlike the instant case, every one of the cases cited was based upon an assertion that the Defendant was not born in the United States, or is not a citizen for some other reason.
The matter before this Court has nothing to do with the birth place of the Defendant, nor does it assert that he is not a citizen of the United States. In fact, limited to this challenged primary election, the Plaintiff will stipulate that the Defendant was born in Hawaii, that the Defendant is a U.S. Citizen, and that the Defendant was Constitutionally-qualified to serve as a U.S. Senator. The Plaintiff makes no assertion regarding the Defendant’s passports, or social security number, or any other fact related to the Defendant, other than the one fact asserted at the beginning of this opposition: that the Defendant’s father was not a U.S. citizen.
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. See Minor v. Happersett, 88 U.S. 162, 167 (1875).
F. Substantive Question for this Court
Despite all of his attempts to misdirect this Court from the one substantive issue presented, the Defendant has failed to present grounds for dismissal. The Plaintiff respectfully requests that this Court consider his simple yet critically important grounds to prohibit the Defendant from appearing on the Georgia ballot:
It is undisputed that President Obama’s father was never a U.S. citizen. To Plaintiffs’ 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.” See Minor v. Happersett, 88 U.S. 162, 167 (1875). The Court in Happersett did go on to state that other sub-categories of people may or may not be within the broader term “citizen.” However, it did so only after specifically identifying the narrower category “natural-born citizens.” Id. The Happersett Court clearly understood and established that “citizen” is a much broader term than “natural-born citizens.” Its discussion of “citizen” does not negate or alter its earlier definition of the term “natural-born citizens.” See Id. at 167-168. This precedent has never been questioned by any subsequent Supreme Court. This precedent is binding.
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. See U.S. Const. Art. II Section 1.5 Georgia election code requires such a candidate to be stricken from any Georgia ballot. §21-2-5.
Conclusion
For the reasons set forth herein, the Plaintiff respectfully requests that this Court deny the Defendant’s motion to dismiss.
Complete Opposition to Defendant's Motion to Dismiss below and here. Prior reports on the Georgia ballot challenges here.
Welden v. Obama - Opposition to Motion to Dismiss - Obama Georgia Primary Ballot Challenge - 12/19/2011
19 Dec 2011: Wash Times Ad - Obama SSN Fails E-Verify System - Support New Article II Super PAC Org
