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NATHANIEL J: OLESON (SBN #276695) GARY G. K.REEP (SBN 066482) 932 "D" Street, Suite 3 Ramona, California 92065 Tel: (760) 788-6624 Fax: (760)788-6414 Attomeys for Petitioners, John Albert Dummett, Jr., Gil Houston, Larry Lakamp, Milo L. Johnson, Joe Gtt, Markham Robinson, and the Constitution Party

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SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO JOHN ALBERT DUMMETT, JR.; MARKHAM ROBINSON, Chairman of the Executive Committee of the State Central Committee of the American Independent Party of California; THE CONSTITUTION PARTY; GIL HOUSTON; LARRY LAKAMP; MILO L. JOHNSON; and JOE OTT; Petitioners, Civil Action No.: 34-2012-80Q>i091 PETITIONERS' OPPOSITION TO DEMURRER Date: October26, 2012 R Y Time: 9:00 a.m. Dept.: 31 Judge: Hon. Michael P. Kenny Action Filed; March 20, 2012 F A X ' * ' ^ ^ ^

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CALIFORNIA SECRETARY OF STATE DEBRA BOWEN, in her official capacity; Respondent,

Petitioners John Albert Dummett, Jr., Markham Robinson, The Constitution Party, Gil Houston, Larry Lakamp, Milo L. Johnson, and Joe Ott (hereinafter collectively referred to as "PETITIONERS"), offer the following Opposition to the Demurrer of Respondent California Secretary of State Debra Bowen (hereinafter referred to as "BOWEN").

PETITIONER'S OPPOSITION TO DEMURRER

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I. ENfTRGDUCTIGN On March 20,2012, PETITIONERS filed the instant action against BOWEN. John Albert Dummett, Jr. (hereinafter referred to as "DUMME1T") was a write-in Presidential candidate in the 2012 California Republican Presidential primary, and is a write-in Presidential candidate for the 2012 Califomia General Election. Markham Robinson is Chairman of the Executive Committee of the State Central Committee of the American Independent Party of California (hereinafter referred to as "ROBINSON"). The Constitution Party (hereinafter referred to as "CONSTITUTION PARTY") is a national political party, and has nominated Virgil Goode as its Presidential candidate. Gil Houston (hereinafter referred to as "HOUSTON") is a registered California voter. Larry Lakamp (hereinafter referred to as "LAKAMP") is a registered Califomia voter. Milo L. Johnson (hereinafter referred to as "JOHNSON") isa registered Califomia voter. Joe Ott (hereinafter referred to as "OTT") is a registered California voter. PETITIONERS brought their petition seeking a determination by this Court as to whether BOWEN has verified that all candidates for the 2012 California Presidential primary election had provided proof that they possess the minimum qualifications for the Office of President of the United States, and, if not, PETITIONERS asked the Court to enjoin BOWEN from placing the names of such unverified candidates on the California Presidential primary election ballot, unless and until such time as BOWEN can show that each of said candidates have so verified their eligibility for the office. The underlying writ petition was filed on March, 20, 2012, and, on May 4, 2012, BOWEN filed a demurrer to PETITIONERS' writ petition. II. BOWEN HAS A DUTY TO ENSURE THAT CALIFORNIA ELECTION LAW IS FULLY COMPLIED WITH BY ALL CANDIDATES, INCLUDING BY NATIONAL PRESIDENTIAL CANDIDATES

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BOWEN alleges that the Secretary of State has no legal duty to detennine whether a presidential candidate is constitutionally eligible to serve as President of the United States. This allegation is without merit. First, the California Secretary of State website Chttp://wwvv.sos.ca.gov/admin/about-the-agency.htm) lists the duties of that office, including the duty of the chief elections officer for Califomia, to ensure that Califomia election laws are followed (Califomia Government Code 12172), the dut>' to investigate election fraud (California Govemment Code 12172), and the duty to advise candidates and local elections ofllcials on the qualifications and requirements for running for office (California Government Code 12172.5). (Writ Petition, paragraph 31). In order to fulfill the duty to advise candidates, the Secretary of State provides several documents with information concerning the qualifications and requirements for each elected position. Documents listing the qualifications and requirements are provided for all state and Federal offices, including the offices of Govemor and Lieutenant Governor; Secretary of State, Controller, and Treasurer; Attorney General; Insurance Commissioner; Member of the State Board of Equalization; State Senator and Member of the Assembly; United States Senator; United States Representative in Congress; and President ofthe United States. (Writ Petition, paragraph 32). The Secretary of State is required to verify that every candidate for these positions is eligible for the sought position, with one exception: those candidates that have been selected for the office of President ofthe United States by a national political party are not required to present to the California Secretary of State any documentation proving their eligibility for the office of President. As PETITIONERS showed in their Writ Petition, Elections Code 6901 forces the Secretary of State to disregard the duties of her office as chief elections official in the State of California with regard to the most important elected office in the United States. Political parties are not, and should not be, responsible for ensuring that Elections Laws are complied with, as the primary goal of the various parties is to promote and elect their candidates. For this reason, there are no Federal or State requirements

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compelling political parties to provide proof that their respective candidates are eligible for the offices sought. Contrary to the interests of the political parties, the duty of the Califomia Secretary of State is to verily that all candidates are eligible for the offices sought. This duty should properly extend to all candidates listed on the ballot, and not exempt a candidate simply because a national political party selects a particular candidate for President, and, for the Court to find otherwise would be to substitute the choice of unelected political party officials for the duty that the Secretary of State owes to the citizens of the State of Califomia, to ensure that the state's election laws are fully complied with. Finally, the language of California Elections Code 6901, compelling the Secretary of State to place any candidate nominated by a political party on tlie ballot, without veriiying tliat the candidate is eligible for the office, is in direct confiict with the requirements for Presidential eligibility in Article II of the United States Constitution. This is no trivial matter, as the Califomia Constitution provides; "The State ofCalifomia is an inseparable part of the United States of America, and the United States Constitution is the supreme law of the land." (California Constitution, Article III, 1). (Writ Petition, paragraph 38). Since the United States Constitution is the supreme law of the land, under both the United States and tlie California Constitutions (U.S. Constitution, Article VI, Clause 2; California Constitution, Article III, I), any statute which conflicts with the United States Constitution is an unconstitutional variance, and is, therefore, void and unenforceable. California Secretaries of State have historically exercised their due diligence by reviewing necessary background documents, verifying that the candidates that were submitted by the respective political parties as eligible for the ballot were, indeed, eligible. In 1968, the Peace and Freedom Party submitted the name of Eldridge Cleaver as a qualified candidate for President of the United States. The then Secretary of State, Mr. Frank Jordan, found that, according to Mr. Cleaver's birth certificate, he would be only 34 years old at the time of the general election, one year shy of the 35 years of age needed

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to be on the ballot as a candidate for President. Using his administrative powers, Mr. Jordan removed Mr Cleaver from the ballot. Mr. Cleaver, unsuccessfully, challenged this decision to the Supreme Court of the State of California, and, later, to the Supreme Court of the United States, which affirmed the actions of the Califomia Secretary of State by denying review of Cleaver's removal from the ballot. Cleaver v. .Jordan (1968) 393 U.S. 810, 89 S.Ct. 43. Similai-ly, in 1984, the Peace and Freedom Party listed Mr. Larry Holmes as an eligible candidate in the Presidential primary. When the then California Secretary of State, Daniel M. Bums, checked Mr. Holmes' eligibility, it was found that Mr. Holmes was, similarly, not eligible, and Mr. Holmes was removed from the ballot. The removal of ineligible candidates is not a relic of historical actions by California Secretaries ol State, as BOWEN too exercises this power to remove ineligible candidates from the ballot. Just this year, Peta Lindsay was selected by the Peace and Freedom Party to be their Presidential candidate on the 2012 Califomia primary ballot. BOWEN, however, rejected Ms. Lindsay, and refused to place her name on the ballot, because she is 27 years old, when the U.S. Constitution, Article 2, I , requires that candidates for President to be at least 35 years of age. There now exists a similar situation to that in which Califomia Secretaries of State have removed Presidential candidates from the ballot in the past, namely that the Democratic Party has submitted Barack Hussein Obama, Jr., as a Democratic Party candidate for President, when he is arguably ineligible for the office. Further, a similar situation may exist conceming the Republican Party candidacy of Mitt Romney. Since BOWEN has demonstrated by her actions that she can and does remove ineligible presidential candidates from the ballot, she should be required to make such verification of eligibility for all presidential candidates, and not just verily the eligibility of candidates from third parties. As discussed above, BOWEN is required by California statute to oversee Califomia elections, and to enforce Califomia election law. This requirement cannot be satisfied by attempting to transfer the duty to enforce election law to any other entity, such as to the Electoral College, political parties, or even to the California electorate. For this reason, PETITIONERS have shown sufficient facts to establish that

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BOWEN owes a duty and has failed to comply with said duty. III. RESPONDENTS CONCEDE THAT CALIFORNIA ELEC'J'IONS CODE SECTION 6901 IS UNCONSTITUTIONAL BOWEN cite the 2008 case Keyes v. Bowen as support for their argument that NOONAN did not state a cause of action against BOWEN in this instant case. Contrary to the assertions of BOWEN, Noonan v Bowen concems distinct issues of law and fact from Keyes v. Bowen. In the 2008 case of Keyes V. Bowen, the defendants raised California Elections Code Section 6901 as a defense to the action, and the court, in that case, agreed with said defense in the order dismissing the case. Whereas, herein, Noonan v. Bowen has been brought, in part, to challenge the Constitutionality ofCalifomia Elections Code Section 6901. RESPONDENTS, however, did not address the arguments regarding California Elections Code Section 6901, at all, and, therefore, waive any objection to PETITIONERS' argument. ("If the party against whom a complaint or cross-complaint has been filed fails to object to the pleading, either by demurrer or ajiswer, that party is deemed to have waived the objection unless it is an objection that the court has no jurisdiction of the subject of the cause of action alleged in the pleading or an objection that the pleading does not state facts sufficient to constitute a cause of action." Califomia Code of Civil Procedure Section 430.80(a).) BOWEN'S waiver of objection, in effect, concedes that Section 6901 is unconstitutional, and improperly prevents BOWEN from fulfilling her duties as Chief Election Officer of California. IV. PETITIOIsnERS' CLAIMS FOR RELIEF ARE NOT MOOT BOWEN alleges that because BOWEN officially certified names of candidates for tlie ballot as Presidential candidates on March 29, 2012, that this matter is moot. This allegation is without merit. PETITIONERS filed this writ on March 20, 2012, well in advance of BOWEN's certification on March 29,2012. In addition, BOWEN had a window oftimefrom January 7, 2012, through March 29,

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2012, to announce the certified list of candidates for the office of President of the United States for the 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 June 5, 2012, primary election. Potential candidates are not required to submit any nomination papers or signatures until after this period of time begins. BOWEN seems to contend that no lawsuit could ever be brought to challenge names on a primary election because no case could come before the Court on noticed motion prior to the deadline for certification of names. Such a rule would prohibit candidates, such as DUMMETT, from ever effectively challenging primary ballots because the names to be challenged would not be known until the start of BOWEN's certification period, and could not be brought after the period ended. Contrary to BOWEN'S contentions, PETITIONERS brought the underlying writ in a timely manner, and there exists an ongoing controversy regarding the names that appeared on the June 5, 2012, primary ballot, and for these reasons, this matter is not moot. V. THERE IS NO EFFECTFVE REMEDY AT THE FEDERAL L E V E L BOWEN alleges that there is a remedy available to PETITIONERS' contentions at the Federal level. This argument is without merit, as there is no mechanism at the Federal level to challenge ineligible candidates. Federal law allows Congress to resolve questions regarding the vote of a Presidential Elector (3 U.S.C. 15), but this is a remedy limited to problems with Electors, and does not extend to the eligibility of a candidate, as 3 U.S.C. 15 only allows for objections regarding "any vote or paper Irom the State." Since tliis action is a dispute over the eligibility of Barack Obama, and/or Mitt Romney, for the office of President of the United States, and not a dispute over whether the Electors properly cast their vote, this statute does not apply to the underlying issue at hand. In addition, a provision of the U. S. Constitution may not be disregarded by means of a popular vote of the people, as there are specific guidelines for amending the Constitution of the United States. In order to do so, the U.S. Constitution, Article 5, requires a two-thirds vote of both houses of Congress, anc ratification by three-fourths of all State legislatures in tlie United States. Even if the people ofthe United

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States voted to elect as President a candidate who did not qualify for the position, that vote would not be sufficient to overcome the Constitutional requirements for the office and make that candidate eligible. Once a name is placed on a ballot, voters are only concemed with whether they prefer one candidate over another candidate, as it can be rightfully inferred by said voters that the threshold issue of eligibility has already been determined by virtue ofthe candidate names having been placed on the ballot. Additionally, the candidates for the Office of President of the United States are not required to prove any eligibility issues to the voters at all, and, instead, candidates are tasked with convincing the voters to vote for that particular candidate over the other candidates. Because voters can, and do, vote for candidates that are liked by the voters, even if those candidates may not be eligible for the position, the voters do not have the power, or the right, to determine the eligibility of a candidate. For the Court to hold otherwise would be to strip all candidates not winning a majority of the votes cast of all political power, as the laws would be based upon the whims ofthe majority of voters, rather than on the Rule of Law. Furthermore, the Electoral College is not empowered with the authority to determine the eligibility of any candidate for President. In twenty-six States and the District of Columbia, Presidential Electors are prohibited by statute from voting in variance with their pledges, or the votes ofa majority of the voters in their State or District, as, ifthey do, they face civil and/or criminal penalties andfines.The act of determining eligibility is one that requires discretionary authority, so that a candidate found to be ineligible may be removed or precluded from placement on the ballot. However, any discretionary authority of the majority of the States' Presidential Electors has been removed by statute, and the Presidential Electors, instead, perform a ministerial function of casting their votes in accordance with the popular vote of the State that each Elector represents. Any assertion that the Electoral College has the authority to make any determination of a Presidential candidate's eligibility to serve in the office is unpersuasive, because, while the historical intent of the of the Electoral College was to allow for such determinations, the modern majority trend of the States is to limit tlie duties of the Presidential Electors to the ministerial role of casting a vote for the candidate chosen by the popular vote of their respective States

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or District. For these reasons, the ministerial power to determine and/or exclude a candidate's eligibility is not found within the Electoral College. Finally, political boards, committees, and panels, in general, such as the United States Congress, are not proper bodies for making determinations of eligibility in this situation because ofthe significant risk of "corrupt and partisan action" {Irby v. Barrett (AK, 1942) 163 S.W.2d 512, 514). Matters committed by the Constitution to the non-judicial branches of the Federal Government are political in naiuTQ. Baker V. Carr (1962) 269 U.S. 186,211. Thus, the Office of President of the United States is designed to decide political issues. In like manner, the United States Congress is a political body with the power to legislate political matters. In addition to its political powers. Congress has internal rules concerning whether to seat or remove their own members, but these rules do not extend to eligibility of candidates for the Office of President of the United States. Since both the Congress and the President are political bodies, any Congressional authority to determine whether a candidate meets the requirements for the Office of President would be suspect, as the determinations would depend on which political party was in the majority at the time. A related issue was considered by Court in Irby v. Barrett, which held: "If the Chairman and Secretary of the Committee have the right to say that because of the decision of this court petitioner is ineligible to be a candidate for office, they may also say, in any case, that for some other reason a candidate is ineligible. For instance, it has been held by this court in many election contests that one must pay his poll tax; that he must do so after proper assessment in thetimeand manner required by law, and that otherwise he is not eligible even to vote, and unless he were a voter he could not hold office. So with other qualifications, such as residence. May this question be considered or decided by the Chainnan and Secretary of the Committee? It may be that such power can be conferred upon them by laws ofthis State or the rules ofthe party; but it is certain that this has not yet been done. If this can be done, and should be done, the door would be opened wide for corrupt and partisan action. It might be certified that a prospective candidate has sufficiently complied with the laws of the State and the rules of a

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political party to become a candidate, and, upon further consideration, that holding might be recalled; and this might be done before that action could be reviewed in a court of competent jurisdiction and reversed in time for the candidate to have his name placed on the ticket. It would 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 afford small satisfaction if, after the ticket had been printed with the name of the candidate omitted, to have a holding by the court that the name should not have been omitted." (Irby v. Barrett (AK, 1942) 163 S.W.2d 512, 514). Since the Office of President ofthe United States is the most powerful position in the country, the risk of "corrupt and partisan action" is great ifthe authority to determine eligibility is placed in the hands of those who are likely to gain an advantage over their opposing political parties. Given this risk, the proper remedy for eligibilit>' disputes is to bring such disputes to the Court for a determination, rather than to Congress or to the Electoral College, and a Court has the power to make determinations of fact and law regarding controversies over the eligibility of a political candidate with little likelihood of partisan results. For all of these reasons, PETITIONERS have no remedy available at the Federal level. VI. THE DOCTRINE OF LATCHES DOES NOT BAR PETITIONERS' CLAIMS BOWEN alleges that PETITIONERS waited too long in filing their Writ Petition and, therefore, are barred by the doctrine of latches. This allegation is without merit. PETITIONERS timely filed their Writ Petition on March 20, 2012, in advance of BOWEN's certification on March 29, 2012. In addition, BOWEN had a window oftimefrom January 7, 2012, through March 29, 2012, to announce the certified list of candidates forthe office of President ofthe United States for the June 5, 2012, primary election. Because potential candidates are not required to submit any nomination papers or signatures until after this period of time begins, any writ petition regarding the certification of names for the ballot by BOWEN would be premature, and not yet ripe for resolution. If BOWEN's argument were to be accepted, no lawsuit could ever be brought to challenge names on a primary election under the doctrine of latches.

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because no case could come before the Court on noticed motion prior to the deadline for certification of 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NATHANIEL OLESON names, vvhich, as argued by BOWEN, would be untimely. Such a rule would prohibit candidates, such as DUMMETT, from ever effectively challenging primary ballots because the names to be challenged would not be known until the start of BOWEN's certification period, and could not be brought after the period ended. Contrary to BOWEN'S contentions, PETITIONERS brought the underiying writ in a timely manner and there exists an ongoing controversy regarding the names that appeared on the June 5, 2012, primary ballot, and for these reasons, this matter is not barred by the doctrine of latches.

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CONCLUSION For the foregoing reasons, BOWEN'S demurrer should be overruled. Dated: October 8, 2012. Respectfully Submitted,

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