FOLLOWING MONEY IN 2016 PRESIDENTIAL POLITICS

Friday, April 15, 2011

ANALYSIS: Why There's Nothing Wrong With A State Law Requiring Presidential Candidate To Prove Eligibility, And What's Wrong With Law On Brewer's Desk

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.



16-507.01. Presidential candidates; affidavit of


7 qualifications; enforcement

8 A. THE NATIONAL POLITICAL PARTY COMMITTEE FOR A CANDIDATE FOR

9 PRESIDENT FOR A PARTY THAT IS ENTITLED TO CONTINUED REPRESENTATION ON THE

10 BALLOT SHALL PROVIDE TO THE SECRETARY OF STATE WRITTEN NOTICE OF THAT

11 POLITICAL PARTY'S NOMINATION OF ITS CANDIDATES FOR PRESIDENT AND

12 VICE-PRESIDENT. WITHIN TEN DAYS AFTER SUBMITTAL OF THE NAMES OF THE

13 CANDIDATES, THE NATIONAL POLITICAL PARTY COMMITTEE SHALL SUBMIT AN AFFIDAVIT

14 OF THE PRESIDENTIAL CANDIDATE IN WHICH THE PRESIDENTIAL CANDIDATE STATES THE

15 CANDIDATE'S CITIZENSHIP AND AGE AND SHALL APPEND TO THE AFFIDAVIT DOCUMENTS

16 THAT PROVE THAT THE CANDIDATE IS A NATURAL BORN CITIZEN, PROVE THE

17 CANDIDATE'S AGE AND PROVE THAT THE CANDIDATE MEETS THE RESIDENCY REQUIREMENTS

18 FOR PRESIDENT OF THE UNITED STATES AS PRESCRIBED IN ARTICLE II, SECTION 1,

19 CONSTITUTION OF THE UNITED STATES.

20 B. THE AFFIDAVIT PRESCRIBED IN SUBSECTION A SHALL INCLUDE REFERENCES

21 TO AND ATTACHMENT OF ALL OF THE FOLLOWING, WHICH SHALL BE SWORN TO UNDER

22 PENALTY OF PERJURY:

23 1. A CERTIFIED COPY OF THE PRESIDENTIAL CANDIDATE'S LONG FORM BIRTH

24 CERTIFICATE THAT INCLUDES AT LEAST THE DATE AND PLACE OF BIRTH, THE NAMES OF

25 THE HOSPITAL AND THE ATTENDING PHYSICIAN, IF APPLICABLE, AND SIGNATURES OF

26 ANY WITNESSES IN ATTENDANCE. IF THE CANDIDATE DOES NOT POSSESS A LONG FORM

27 BIRTH CERTIFICATE AS REQUIRED BY THIS PARAGRAPH, THE CANDIDATE MAY ATTACH TWO

28 OR MORE OF THE FOLLOWING DOCUMENTS THAT SHALL TAKE THE PLACE OF THE LONG FORM

29 BIRTH CERTIFICATE IF THE CANDIDATE SWEARS TO THEIR AUTHENTICITY AND VALIDITY

30 AND THE DOCUMENTS CONTAIN ENOUGH INFORMATION FOR THE SECRETARY OF STATE TO

31 DETERMINE IF THE CANDIDATE MEETS THE REQUIREMENTS PRESCRIBED IN ARTICLE II,

32 SECTION 1, CONSTITUTION OF THE UNITED STATES:

33 (a) EARLY BAPTISMAL OR CIRCUMCISION CERTIFICATE.

34 (b) HOSPITAL BIRTH RECORD.

35 (c) POSTPARTUM MEDICAL RECORD FOR THE MOTHER OR CHILD SIGNED BY THE

36 DOCTOR OR MIDWIFE OR THE PERSON WHO DELIVERED OR EXAMINED THE CHILD AFTER

37 BIRTH.

38 (d) EARLY CENSUS RECORD.

39 2. A SWORN STATEMENT OR FORM THAT IDENTIFIES THE PRESIDENTIAL

40 CANDIDATE'S PLACES OF RESIDENCE IN THE UNITED STATES FOR FOURTEEN YEARS.

41 C. IN ADDITION TO THE REQUIREMENTS OF SUBSECTION B, THE PRESIDENTIAL

42 CANDIDATE MAY ALSO SUBMIT A NOTARIZED AFFIDAVIT FROM TWO OR MORE PERSONS WHO

43 WITNESSED THE PRESIDENTIAL CANDIDATE'S BIRTH.

H.B. 2177

- 4 -

1 D. IF THE SECRETARY OF STATE RECEIVES ANY DOCUMENTS IN PLACE OF A LONG

2 FORM BIRTH CERTIFICATE PURSUANT TO SUBSECTION B, PARAGRAPH 1 AND CANNOT

3 DETERMINE IF THE PRESIDENTIAL CANDIDATE MEETS THE REQUIREMENTS PRESCRIBED IN

4 ARTICLE II, SECTION 1, CONSTITUTION OF THE UNITED STATES, THE SECRETARY OF

5 STATE MAY ESTABLISH A COMMITTEE TO ASSIST IN THE DETERMINATION OR HOLD

6 HEARINGS AND SUBMIT ANY DOCUMENTS FOR FORENSIC EXAMINATION.

7 E. IF BOTH THE PRESIDENTIAL CANDIDATE AND THE NATIONAL POLITICAL PARTY

8 COMMITTEE FOR THAT CANDIDATE FAIL TO SUBMIT AND SWEAR TO THE DOCUMENTS

9 PRESCRIBED IN THIS SECTION, THE SECRETARY OF STATE SHALL NOT PLACE THAT

10 PRESIDENTIAL CANDIDATE'S NAME ON THE BALLOT IN THIS STATE. IF THE CANDIDATE

11 AND NATIONAL POLITICAL PARTY COMMITTEE FOR THAT COMMITTEE SUBMIT AND SWEAR TO

12 THE DOCUMENTS PRESCRIBED IN THIS SECTION, BUT THE SECRETARY OF STATE BELIEVES

13 THAT THE PREPONDERANCE OF THE EVIDENCE SHOWS THAT THE CANDIDATE DOES NOT MEET

14 THE CITIZENSHIP, AGE AND RESIDENCY REQUIREMENTS, THE SECRETARY OF STATE SHALL

15 NOT PLACE THAT PRESIDENTIAL CANDIDATE'S NAME ON THE BALLOT IN THIS STATE.

16 F. A MEMBER OF THE HOUSE OF REPRESENTATIVES, A MEMBER OF THE SENATE OR

17 ANY OTHER CITIZEN OF THIS STATE HAS STANDING TO INITIATE AN ACTION TO ENFORCE

18 THIS SECTION.


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