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Liberty Legal Foundation; John Dummett; Leonard Volodarsky; Creg Maroney, Appellants Democratic National Committee; Debbie Wasserman-Schultz, Appellees

CASE NO: 12-16729

APPELLANTS REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

The purpose of the instant motion is to prevent irreparable harm that will occur on September 3, 2012, absent an order from this Court. Therefore, the Appellants respectfully request that this Court GRANT this motion prior to

B. Personal Jurisdiction Properly Alleged

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This motion and the instant litigation focus upon the fact that the Appellees

will send a legal notification to the Arizona Secretary of State, specifically addressed to the individual currently holding that office, announcing that Barack

Obama is the Democratic Partys candidate for the office of President of the United States. R.10, Second Amended Compl., at 8-10 & 51,52; and Ex. 1.
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September 3rd.

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A. Time Sensitive Motion

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UNITED STATES DISTRICT COURT OF APPEALS FOR THE NINTH CIRCUIT

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show that a non-resident defendant purposefully directed his activities toward the

forum state, or consummated some transaction with the forum state, or performed some act by which he purposefully avails himself of the privilege of conducting

activity in the forum state, or invokes the benefits and protections of the forum states laws. See R.41, Or. Dismissing at 6; citing Schwarzenegger v. Fred Martin

Wartsila N. Am., Inc., 485 F.3d 450, 460 (9th Cir. 2007).

If more needs to be said regarding the District Courts ruling, or the

C. Preliminary Injunctions Are Often Used to Prohibit Future Action It is well established that a plaintiff seeking preliminary relief need not demonstrate that irreparable injury is certain to occur, but only that it is likely in the absence of an injunction. Los Angeles v. Lyons, 461 U.S. 95, 103, (1983); Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 441, (1974); O'Shea v.

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Littleton, 414 U.S. 488, 502, (1974); see also 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 2948.1, p. 139 (2d ed.1995). In the instant litigation the Defendant/Appellees have sent notices, almost

identical to the notice at issue, to the Arizona Secretary of State following every previous Democratic national convention. See Ex. 1. They will, without doubt,
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Appellees statements on this issue, then stare decisis no longer has any meaning.

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Motor Co., 374 F.3d 797 (9th Cir. 2004); See also Holland Am. Line Inc. v.

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To establish personal jurisdiction a plaintiffs allegations, taken as true, must

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Second Amended Compl., at 8-10 & 51,52.

D. Robinson and 3 U.S.C. 15 are Inapplicable

Contrary to Defendants assertion, Robinson v. Bowen and 3 U.S.C. 15 are

inapplicable to the instant case, and are inapplicable to all pre-election candidate challenges of competing-candidates qualifications. See Dkt. 10, Applees Opp. at

3 U.S.C. 15 addresses the responsibilities and operations of the electoral college, not the preceding public elections for President that are held by the states.

the states. To argue that it does requires a conclusion that 3 U.S.C. 15 is superior to the U.S. Constitution itself.

Article II, paragraph 2 states in relevant part Each state shall appoint, in

(emphasis added). 3 U.S.C. 15, on the other hand, sets forth procedures for

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counting electoral votes in Congress, after the states have determined which electors they will appoint. In other words, 3 U.S.C. 15 applies to the process that occurs after the

general election. 3 U.S.C. 15 has nothing to do with how the states determine which electors they will appoint.
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such manner as the legislature thereof may direct, a number of electors

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This statute simply does not apply to public elections for President that are held by

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14; citing 567 F. Supp. 2d at 1147 (N.D. Cal. 2008).

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send another such notice absent this Courts order prohibiting such action. R.10,

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candidate challenges of competing candidates qualifications prior to state-held public elections, this would mean that an act of Congress can take away the States rights to determine how their elections are to be governed. The Constitutional

clause [I]n such manner as the legislature thereof may direct would be negated

by a simple act of Congress. See U.S. Const. Art. VI, 2. But it is well established

Congress cannot alter the Constitution, except via the amendment process. See U.S. Const. Art. V.

procedures that are followed pursuant to the third paragraph of Article II. But the Appellees argument would have 3 U.S.C. 15 negate the second paragraph of Article II. This interpretation violates every doctrine of legal interpretation, and

construction. See Marbury v. Madison 5 U.S. 137, 174 (1805). As Chief Justice

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Marshall explained, It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it. 5 U.S. 137, 174 (1805). All of the problems with the Defendants assertion regarding 3 U.S.C. 15

are also negated by, well, a simply reading 3 U.S.C. 15. Nothing in the statute
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particularly violates the Supreme Courts rules regarding Constitutional

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It is obvious that Congress intent with 3 U.S.C. 15 was to set forth the

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that the Constitution is superior to acts of Congress. See U.S. Const. Art. VI.

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If the Defendants were correct that 3 U.S.C. 15 somehow prevents

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electors in such manner as the legislature thereof may direct. U.S. Const. Art. VI, 2.

The instant litigation is about DNC misrepresentations that affect how the states will determine which electors the states choose to appoint. The instant

litigation has nothing to do with how those electors may or may not vote in the

inapplicable to the instant litigation.

E. Underlying Case is Not a Birther Case

Appellants as birthers. Dkt. 6, Appellees Opp. at 8. As the Appellants pointed out in their motion, and their filings with the District Court, the instant case has nothing to do with where Mr. Obama was born. The Appellants make no

factual allegation made is that Mr. Obamas father was never a United States

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citizen.

The instant litigation revolves around one simple legal assertion: That the

Supreme Court has defined the term natural born citizen, as that term is used in Article II, establishing the eligibility requirements for all Presidential candidates.

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allegations regarding the location or circumstances of Mr. Obamas birth. The only

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The Appellees opposition attempts to prejudice this Court by labeling the

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electoral college process, after the public elections. 3 U.S.C. 15 is completely

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indicates or implies an intention to preempt the States right to select Presidential

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litigation with cases that raise completely different facts and legal issues.

Appellees slander simply demonstrates their fear of the simple legal fact asserted in the instant litigation.

Appellees opposition document also relies upon the Indiana appellate court

decision Ankeny v. Governor of Indian. Dkt. 6 at 8, citing 916 N.E.2d 678 (2009).

demonstrates the weakness of Appellees position on the central legal issue. Appellants motion has already established the truly shocking and obvious

F. Appellees Misrepresent Supreme Court Precedent Appellees statement that the Minor Court expressly left open the definition of natural born citizen is a clear misrepresentation of precedent. See

While the Minor Court did follow its definition of natural born citizen with a

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statement that there have been doubts about the broader class of people identified as citizen, the Courts opinion is clear that the doubt the Court was referring to was doubt as to the outer limits of the very-broad term citizen. See 88 U.S. at 167. This statement did not imply doubt regarding the Courts definition of natural born citizen. Id. In fact, the next sentence of the Minor Courts opinion
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Dkt.6 at 9.

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flaws afflicting the Ankeny opinion. See Dkt. 4-1 at 16-17.

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The fact that Appellees still cite this case, and other cases that rely upon Ankeny,

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Appellees use of a slanderous label is their attempt to group the instant

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natural born citizens. Id.

This understanding of the Minor Courts statement is supported by its extensive discussion of the broader term citizen at the beginning of the Courts

opinion. Id. at 166. The Court concludes its discussion of the term citizen by

stating, When used in this sense it [citizen] is understood as conveying the idea of

established that the term citizen in its opinion was to be understood to be very broad. With this in mind, the Minor Courts statement is unambiguous: it

citizen is a broad term that is inclusive of all natural born citizens; as to the outer limits of the term citizen there are doubts; and as to the definition of natural born citizen there have never been doubts. Id.

citizen under the 14th Amendment. That is what the Wong Kim Ark Court was

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left to determine. Id. The holding from Wong Kim Ark did not address the

definition of the term natural born citizen nor did it address Article II qualifications to serve as President. See 169 U.S. 649 at 702 (1898). Despite their misrepresentation of Minor, the Appellees document does

correctly point out that the holding of the Wong Kim Ark opinion establishes that
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The Minor Court did expressly leave open the outer boundaries of the term

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established two distinct classes of people, citizens and natural born citizens;

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membership of a nation, and nothing more. Id. The Court, therefore, clearly

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expressly states that there have never been doubts as to the narrower class of

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quoting the holding from 169 U.S. 649, 702. The fact that the term citizen is legally distinct from natural born citizen, is the central issue presented by the

instant litigation. The fact that the Appellees admit that holding from Wong Kim Ark addressed the term citizen, and not natural born citizen, shows that even the Appellees understand that Wong Kim Ark is inapplicable to the instant case, and

citizen as that term is used in Article II.

G. Plaintiff/Appellants Have Standing

order to maintain a suit. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 52 at FN2 (2006); Bowsher v. Synar, 478 U.S. 714, 721, (1986). Because Plaintiff Dummett has standing in the instant case, all other plaintiffs,

claims. Id.

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Appellees Complaint alleges that Plaintiff Dummett is an FEC-registered

candidate for the office of President, that his name will appear on the ballot in several states, that he is registered with several states as a write-in candidate, and that he will be irreparably harmed by the appearance of Mr. Obama on ballots for the same office because such appearance would inevitably lead to votes being cast
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including Liberty Legal Foundation and Mr. Maroney, may proceed with their

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First, it is well established that only one Plaintiff needs to have standing in

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that Wong Kim Ark did not alter the Minor Courts definition of natural born

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those born in the United states are citizens, not natural born citizens. Dkt. 6 at 8,

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Second Amended Compl., 21-23 & 25. Taking these facts as true, Mr. Dummett

has established standing. See Drake v. Obama. 664 F.3d 774, 783 (9th Cir. 2011)(Noting that Plaintiff Gail Lightfoot was a write-in candidate; Id. at 782).

Appellees assertion of collateral estoppels also fails because this Court will not consider collateral estoppel on appeal where the issue was not raised in the

It is not enough that the party introduce the decision of the prior court; rather, the party must introduce a sufficient record of the prior proceeding to enable the trial

F.2d 765, 769 (9th Cir.), cert. denied, 444 U.S. 979 (1979)(emphasis added). In the instant case the Appellees make passing reference to a case that was originally filed in a Tennessee state court, asserted state claims that were

the other courts factual findings that were specific to Tennessee. Also, had this

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issue been raised with the Arizona Court, or if it is raised with that Court after remand, the Plaintiffs below would have, can, and will join a new Presidential candidate as a named party to the instant litigation, thereby completely negating the collateral estoppel argument.

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distinguishable from the instant litigation, and was dismissed in part based upon

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court to pinpoint the exact issues previously litigated. United States v. Lasky, 600

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lower court. Hernandez v. City of Los Angeles, 624 F.2d 935, 937 (9th Cir.1980).

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for Mr. Obama that would have otherwise been cast for Mr. Dummett. R.10,

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that collateral estoppel arguments will not be considered on appeal unless they have been fully litigated in the lower court. Because the Appellants have not had

an opportunity to address this issue in the lower court, this issue should not be considered by this Court. H. Constitutional Supremacy

career. Binding precedent establishes that Mr. Obama is not eligible to be nominated for the office of President. For laws to have any meaning they must be

branch refuses to uphold a clear requirement of our Constitution, then America will no longer be a nation of laws.

For all the reasons set forth above the Plaintiff/Appellants request that this

Respectfully submitted on this the 10th Day of Elul, in the year of our Lord

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2012 (a.k.a. August 29, 2012). _s/Van R. Irion_________________ Van R. Irion (TNBPR#024519) Liberty Legal Foundation 9040 Executive Park Drive, Ste. 200 Attorney for Plaintiff/appellants (423) 208-9953

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Court GRANT this motion.

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enforced without bias and regardless of perceived political fallout. If the judicial

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Upholding the Constitution is more important that any individuals political

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Situations like the instant case demonstrate why this Court has established

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It is hereby certified that on 10th Day of Elul, Year of our Lord 2012 (a.k.a. August 29, 2012), a copy of Appellants Reply in Support of Motion for Preliminary Injunction was filed electronically. Parties may access this filing through the Courts electronic filing system. _s/Van R. Irion_________________ Van R. Irion Liberty Legal Foundation 9040 Executive Park Drive, Ste. 200 Attorney for Plaintiff/appellants (423) 208-9953

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CERTIFICATE OF SERVICE