Understandably,
Arizona's so-called Birther Law is getting a lot of attention - positive and negative - from around the country. It is a simple idea that is justified, but is hyper-charged with politics, conspiracy theories, with a possible jolt of racism thrown in. Governor Brewer should not sign it.
During the 2008 campaign, when so-called Birthers started to file various and sundry lawsuits across the United States challenging Obama's eligibility to be President, I reviewed a number of those suits. I noted - at a different website - that the suits were misguided, but our system of federal and state laws does not have any way of ensuring that the constitutional eligibility requirements are met. I posited that such laws would have to be passed at the state level and pass U.S. Constitutional muster.
Arizona's new law - waiting for Governor Jan Brewer's decision on whether to sign it, veto it or to ignore it and let it go into law - is such an attempt and probably would pass constitutional muster. However, there are political and legal issues with it that should convince the Governor to veto it.
Political: Because President Obama is the only presidential nominee who has ever had his eligibility seriously questioned (I do not think McCain questions reached the level of lawsuits or widespread discussion), and he is running for re-election, this appears to be designed as a vendetta - a way of trying to keep him from being re-elected
and to say that his first term was illegitimate.
This is not appropriate.
Legal: The text of the new, proposed statute is pasted below the jump. Sections A, B and C deal with the affidavit that would be required and the forms of proof that should be attached. Fine. It is the second half of the statute, dealing with enforcement and remedies where things get sketchy.
Section F allows anyone to file lawsuits to try to enforce this law. I am not sure why it distinguishes between state(?) legislators OR any other citizen. But, this is setting Arizona to be the center of attention for a raft of lawsuits.
Section D allows the Secretary of State to set up a committee "to assist in the determination or hold hearings and submit any documents for forensic examination." A lot of leeway there, very broad indeed.
Then, in Section E, the Secretary of State of Arizona is permitted to make the determination to keep a national presidential candidate off of the November ballot, and he or she only needs to go by a "preponderance of the evidence" standard. That is SCARY. (Plus, we already know that the Secretary of State in 2012 will likely still be Ken Bennett - a staunch GOP partisan.)
In recent presidential elections, both parties have accused Secretaries of State from the other party of imperiling our democracy because of politically-motivated decisions. No matter how many Secretaries of State or candidates for the position declare that they will enforce election laws impartially, noone believes that that is possible. The Secretary of State is a political person by the very nature of our system, and is often a very partisan political person.
I think that this is a major flaw in the pending legislation. IF the law had required a multi-partisan (no such thing as non-partisan for this) panel of judges, it would be different. IF the law had stated that it would go into effect for the 2016 election, it would be different. IF the law had not given the right to anyone to sue to try to enforce this action (what's up with specifying a state legislator or any other citizen, anyway?), it would be different.
However, it is what it is. And, it should not be signed into law.
