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AL - 2012-10-11 - MvC - PLAINTIFFS' Motion for Summary Judgment and Memo in Support and Motion to Shorten Response Time to 5 Days

AL - 2012-10-11 - MvC - PLAINTIFFS' Motion for Summary Judgment and Memo in Support and Motion to Shorten Response Time to 5 Days

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Published by: Jack Ryan on Oct 15, 2012
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C i v i l A c t i o nN o . : C V - 1 2 - 1 0 5 3 - R BETH CHAPMAN In her official capacity as Secretary State of Defendant.


PlaintiffsHUGH MCINNISH (MCINNISH) and VIRGIL H. GOODE, JR. (GOODE), and pursuant Rule 56 of the AlabamaRulesof Civil Procedure, to move this honorablecourt for judgment as to Plaintiff-s' Verified Complainton groundsthat there is no issueof summary materialfact and that the Plaintiffs are entitledto a judgment as a matterof law, and in support thereforePlaintiffs submit the followins memorandum.

INTRODUCTION The candidates the ballot in Alabamafor the November GeneralElection include on BARACK OBAMA (OBAMA), MITT ROMNEY (ROMNEY), VIRGIL H. GOODE,JR, (GOODE).GARY JOHNSON(JOHNSON), AND JILL STEIN (STEIN). None of thesehave

proventhat they meet the requirementfor being a naturalbom citizen as requiredby U. S. Constitution, Article II, Section 1, Cl 5. This has caused nationalcontroversyto arise,and calls a for this questionto be clearly settled. Because numerousquestions have beenraisedby forensic experts and govemment sources, question Obama's the of eligibility is especially acute. As with the presidential electionof 2008,candidate OBAMA hasneverestablished his eligibility for the presidencyof the United States. Indeed,neitherOBAMA, nor the Democratic Party of Alabamahaseven statedthat OBAMA is a "naturalborn citizen." The only evidenceof OBAMA's allegedbirth within the United States come in the form of an electronicversion has posted the internet. on However,therehasbeenevidence showthat this "birth certificate" to has eitherbeenalteredor is entirelyfraudulent.No physical, papercopy, or copy on any other medium,hasever beenpresented firmly establish to that OBAMA was indeedborn within the UnitedStates. Yet even if his purported"birth certificate"is to be believed,OBAMA was born to a motherwho was a citizenof the United States, and a fatherwho was a Kenyan citizen. (What todayis "Kenya" was at the time of Obama's alleged birth known as "British EastAfrica.") The U.S. Constitution requires that all who serveas President the United States of must be "natural born citizenfs]." The Supreme Court hasdefinedthis term to meana child born to two citizen parents. SinceOBAMA was not born to both parentswho were citizensof the United States, he is not a "naturalbom citizen"as requiredby the U.S. Constitution. Under either scenario,it is clear that OBAMA hasnot established eligibility for the Office of the President the United States, of and it is evidentthat he can not, underany circumstance, establish eligibility. his

DefendantSecretary StateBeth Chapmanhas sworn an oath to "supportthe of Constitutionof the United States, and the Constitutionof the Stateof Alabama," and to "faithfully and honestlydischarge duties" of her office. As part of her oath to uphold both the constitutions, Defendantis duty bound to meteout and enforcethe requirements eligibility of underthe U.S. Constitution. The eligibility of OBAMA must be dealt with now. Plaintiffs, and the rest of the voters in the stateof Alabama,must be assured that if they casttheir votes for OBAMA in the general electionthat their voteswill not be in vain. The DemocraticParty, and much more the general Alabamaelectorate, will have beenled down the primrosepath, and will be effectively defrauded, the issueis not settlednow but ratherafter the election. if

STATEMENT OF FACTS On or aboutApril 2011, only afteryearsinto his presidency, undermediaand and political pressure, OBAMA publishedon the intemet an electronicversionof a purportedbirth certificate alleginghis birth in Honolulu,Hawaii on August4.1961to Americancitizenmother, StanleyAnn Dunham,and Kenyan British subjectfather,Barack Obama,Sr. Verified Compl. fl 6. No physical,papercopy, or copy on other medium,of the actuallong form birth certificatehas beenproducedin order to definitively establishOBAMA's birth within the United Verified Compl. fl 8. Instead,there is credibleevidencethat the "birth certificate" States. publishedon the internetwas alteredor otherwisefraudulent.Exhibit l. Even if this birth certificateis authentic,it would only establish that OBAMA was born to a U.S. citizen mother,StanleyAnn Dunham,and a fatherwho was a British subject. In fact,

Barack Hussein Obama OBAMA'sfather, Sr, wasnevera citizenof the UnitedStates, only was in theUnitedStates a student on visa,andwaslaterdeported from the UnitedStates. On February 2,2012 PlaintiffHughMclnnish, together with his attorney others, and visitedtheOfficeof the Secretary State, whichtheHon.Emily Thompson, of at Deputy Secretary State, of speaking inthe absence andforthe Secretary State, of of represented thather officewouldnot investigate legitimacy anycandidate, violatingherduties the of thus under the U.S.andAlabama constitutions. Verified Compl. 19. fl

"The party moving for a summaryjudgment must make a prima facie showingthat there are no genuineissuesof material fact and that he is entitledto a judgment as a matterof law, Fincher,583So. 2d at 257. If this showingis made,the burdenthen shiftsto the nonmovant to prima facieshowingby'substantial rebutthe movant's Falls v. JVC America,Inc.,7 evidence."' So.3d 986,989 (Ala. 2008) citing Fincherv. Robinson Bros.Lincoln-Mercury, lnc.,583 So.2d 2 5 6( A l a . 1 9 9 1 ) . Evidenceis "substantial"if it is of "such weight and quality that fair-mindedpersons in the exercise impartialjudgment can reasonably of infer the existence the fact soughtto be of proved."I4/est FoundersLife Assurance v. Co.,547 So. 2d870 (Ala. 1989).

ARGUMENT ThereIs CredibleEvidenceof FraudIn Candidate Obama'sPurported"Birth Certificate". Plaintiffs allegationsare substantiated the swom affidavits of Sheriff JosephArpaio by

Posse. Exhibitl. Arizona, hisinvestigative theColdCase and team, of Maricopa County,

Sheriff Arpaio was first askedto undertake investigationinto Mr.Obama'slong-form birth an certificatein August of 201I upon petition by 250 residents Maricopa County. Arpaio of Affidavit fl 2. The Cold CasePosse was commissioned SheriffArpaio in October2011and is by comprised former law enforcement of investigators practicingattorneys. at fl 5. Mr. and Id. Michael Zullo was the lead investigatorfor the Cold CasePosse and was chargedwith the task of determiningwhetherthe electronicdocumentreleased the White Houseas OBAMA's birth by certificatewas, in fact, authentic.Zullo Affidavit fl 6. In February2012,the Cold CasePosse informed Sheriff Arpaio that therewas likely forgery involved with the documents. atll7. Id. Mr. Zullo concluded that "the document published the White Housewebsiteis, at minimum, on misleading the public as it hasno legalimport and cannotbe reliedon as a legaldocument to verifuingthe date,placeand circumstance BarackObama's of birth." Id. atlll. Mr. Zullo'sconclusions "were based upon,but not limited to, input from numerous expertsin the areasof typesetting, computergenerated documents, forensicdocumentanalysis and Adobe computerprograms,as well as, review of Hawaii statelaw, Hawaii Department of Healthpoliciesand procedures, and comparisons with numerousother birth records."Zullo Affidavit fl 7. In the courseof their investigation, also chronicleda seriesof "The investigators inconsistent and misleadingrepresentations variousHawaii governmentofficials havemade that over the pastfive yearsregardingwhat, if any, original birth recordsare held by the Hawaii Department Health." Exhlibit I, Zullo Affidavit fl 12. of Mr. Zullo's conclusions were also supported the affidavit of JeromeCorsi, Ph.D.,a by journalist and authorcurrently employedas a SeniorStaff Reporterby WND.com. Dr. Corsi holds a Ph.D. from Harvard University and hasextensivelyresearched OBAMA and his past. Dr. Corsi utilized his extensiveresearch publish his book "Where'sthe Birth Certificate:The to

CaseThat Barack Obamais Not Eligible to Be President." Exhibit I, Corsi Affidavit,'u9. Dr. Corsi aidedthe Cold CasePosse's investigationby turning over all the research conducted he to write his book, as well as any subsequent research. Exhibit I, Corsi Affidavit fl 6. At Mr. Zullo's request, Corsi flew to Phoenix,Arizona to meetwith the Cold CasePosse Dr. and presentthe evidence had producedfor the book and relevantresearch conductedsubsequenlly. at he he Icl publishedand/orprivate, "revealsand showsa likelihood that key fl7. Dr. Corsi'sresearch, identity papersfor President Obamahave beenforged,including his long-form birth certificate released the White Houseon April 27,201l, and his SocialSecurityNumber."Id alll8. Dr. by Corsi similarly concludedthat "thereare significantissues fact that are in disputeas to where of he was born,Hawaii as he claims,or outsideof the United States and its territories" Exhibit I. Corsi Affidavit fl 9. Havingbeenpresented evidence investigator Zullo and Dr. Corsi,Sheriff the by Mr. Arpaio concludedthat "forgery and fraud was likely committedin key identity documents includingPresident Obama's long-formbirth certificate, Selective his ServiceCard,and his SocialSecurityNumber." Exhibit I, Arpaio Affidavit fl 7. Sheriff Arpaio basedhis conclusions on indications that "PresidentObama'slong-form birth certificateis a computer-generated document, was manufactured electronically,and it did not originatein a paperformat, as claimed by The White House."Id. ln sum,SheriffArpaio unequivocally stated that "thereis probable causethat the documentis a forgery, and thereforeit cannotbe usedas a verification,legal or otherwise, the date,place or circumstance BarackObama'sbirth." Id. aIl 8. of of


erritories T Citizen Parents.

Even if OBAMA's electronicbirth certificateis authentic,despitethe evidenceto the contrary,OBAMA cannotbe eligible because is not a "naturalborn citizen" which requires he that a personbe born in the United States its territoriesto two U.S. citizen parents. or Any discussion eligibility mustbeginwith the originaltext. Article II, Sec.1, Cl. 5 of of the U.S. Constitution states:

"No Personexcepta naturalborn Citizen,or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President;neither shall any Personbe eligible to that Office who shall not have attainedto the Age of thirty five Years,and beenfourteenYearsa Residentwithin the United States." The foundersof the U.S. Constitutionwere very concerned aboutthe dangerof foreign influence underminingAmerican society,so much so, that JohnJay wrote five FederalistPapers the on dangers foreign influence(#2-6), and GeorgeWashingtonwarneddirely aboutit in his of "FarewellSpeech" 1796: in "Againstthe insidiouswiles of foreigninfluence conjureyou to believeme, (l fellow-citizens)thejealousy of a free peopleought to be constantlyawake,since history and experience prove that foreign influenceis one of the most banefulfoes of republicangovernment". In order to protectand safeguard againstthis foreign influence,the founding fathers placedwithin the U.S. Constitution uniquerequirement the President the United the that of States, highestoffice in the land, be a "naturalbom citizen." The term "naturalborn citizen" the was well established the time the Constitutionwas draftedand enacted, at coming from the law of nationsas compiled and set forth in the historic treatisethe "Law of Nations," a treatise

craftedby the renownedEmmerich de Vattel, Exhibit II, and which the framersconsulted and repliedupon in crafting and enactingthe Constitution. In a section titled "Of the CitizensandNatives"the "Law of Nations"confirmedof the differencebetweencitizensand naturalbom citizensas follows. "The citizensare the membersof the civil society;bound to this societyby certain duties,and subjectto its authority,they equally participatein its advantages. The natives, natural-born citizens.are thoseborn in the country. of parents or who are citizens."

"Law of Nations,"Book l, Chapter19,S 212 (emphasis added). Vattel went on to clarifl' and confirm, the "country of the father is the country of the son." Id. Not coincidentally, U.S. Supreme the Court in The Venus, U.S. 253 (1814),Justice l2 JohnMarshall,in a caseentirelydecided the legalconcepts the law of nations, by of directly quotesthe abovedefinition by Vattel almostverbatim. JusticeMarshall wrote: "Vattel, who, though not very full to this point, is more explicit and more satisfactory it than any other whosework has fallen into my hands,says'The on citizens the members the civil society; are of boundto this societyby certain duties,and subjectto its authority,they equally participatein its advantages. The nativesor indigenesare thosebom in the country of parentswho are citizens. Societynot being able to subsistand to perpetuate itself but by the children of the citizens,thosechildren naturally follow the condition of their fathers,and succeed to all their rights."'

The Venus,l2US 253,289(1814). Justice Marshall wenton to explain: "The writers upon the law of nationsdistinguishbetweena temporaryresidence in a foreign country for a specialpurposeand a residence accompanied with an placeof abode.The latter is styled by Vattel intentionto make it a permanent "domicile," which he definesto be, "a habitationfixed in any place,with an intentionof always stayingthere." Sucha person,saysthis author,becomes a memberof the new society,at leastas a perrnanent inhabitant,and is a kind of citizen of an inferior order from the native citizens,but is nevertheless united and subjectto the societywithout participatingin all its advantages".

Id. at278. Thus, The Venusstandsfor the propositionthat allegiance one'scountry cannotbe to established residence by because is easily disintegrated it when a personmovesback to his nativecountry. The framerswanteda solid bond to one'scountry. Citizenshipthroughthis temporaryallegiancecannotbe what the framerswere intendingwhen requiring the future president be a "naturalbom citizen," for the purposeof the preventionof foreign influence. to The framersdesiredand mandated that a deepabiding allegiance the United States the to for future president must be had, as this personwould be the CommanderIn Chief of the U.S. Armed Forces.They were looking for allegiance derivedfrom at leastnaturalized U.S. citizen parents, the standingof a "Native," who had legally thrown off native allegiances on and pledged sole allegiance their new nation,not the temporaryallegiance inhabitants, to of simply changed by movingresidence. The definition that a naturalbom citizen was one born in the country with two citizen parents, was the prevalentview of the time. In his landmarktreatise"A Treatiseon Citizenship," followingthe law of nationscodifiedin Vattel's"Law Of Nations,"AlexanderPeterMorse definitivelysetforth and reiterated accepted on "naturalbom citizer," "A citizen,in the the law largestsense, any native or naturalized personwho is entitled to full protection in the is exercise and enjoyment of the so-calledprivate rights. The natural born, or native is one who is born in the country, of citizen parents." Morse, AlexanderPeter,A Trealiseon pp.xi (1881)."Under the view of the law of nations,natives,or natural born Citizenship citizens,are thoseborn in the country, of parentswho are citizens." Id. at $7 (Emphasis added).


Even more, there is clear evidencethe founding fathersstudied,utilized, and incorporated the law of nationscodified in Vattel's"Law of Nations" in the crafting and enactingof the U.S. Constitution, and frequentlyconsultedVattel's "Law of Nations" thereoftenfor guidance.

In a letter from Benjamin Franklin to CharlesDumas,editor of the 1775edition of the Law of Nations,Franklin specificallythanksDumasfor providing him with copiesof the "Law of Nations." This foundins father and framer wrote:

"l am much obligedby the kind present you havemadeus of your editionof Vattel. It cameto us in good season, when the circumstances a rising state of makeit necessary frequently consultthe law of nations. to Accordinglythat copy, which I kept, (after depositingone in our own public library here,and sendingthe otherto the Collegeof Massachusetts as you directed,) Bay, has beencontinually in the hands of the membersof our Congress, now sitting, who are much pleased with your notesand preface,and have entertaineda high and just esteem their author." for BenjaminFranklinLetter,pp. l. This letterof BenjaminFranklinis a certifiedcopy from the Library of Congress.Franklin, who was instrumental the drafting and enactingof the U.S. in providesconfirmationthat thosedrafting the U.S. Constitutionwere "frequently Constitution, consulting"the law of nationscodified in "Law of Nations." The framersthen knew of and incorporated definition of "naturalborn citizen" which was provided twice within the "Law the of Nations."

Not surprisingly,a direct reference legal incorporationof the law of nationsas codified to in Vattel's"Law of Nations"alsoappeared the U.S. Constitution in itself. In Article l, Section powersfor the legislativebranch. One of these 8, the U.S. Constitutiongrantedenumerated powerswas "To define and punishPiraciesand Feloniescommittedon the high seas, enumerated Art. I, s. 8, c. l0 (emphasis and Offenses againstthe Law of Nations;" U.S. Constitution,


added).The framerstook care in incorporatingand recognizingthe law of nations,and providing Congress with a meansof legislatingcrimescommittedagainstit.

Even after the Constitutionwas written, Vattel's "Law of Nations" continuedto be consulted utilizedby the leaders the United States. October5,1789, President and of On George Washington borrowedfrom the New York SocietyLibrary a copy of Vattel's"Law of Nations," as evidenced his entry in the ledger. An article with the picture of the ledgerhasbeen by attached Exhibit 2 with a confirmationby the headLibrarian of the New York SocietyLibrary as that the article is accurate. This abundance evidence,from historicaltreatises, of SupremeCourt decisions, and other provesthat the definition of naturalbom citizen is one who is born in the United authorities, States two U.S. citizenparents. to In short,a prima facie casehasbeenpresented that OBAMA was neitherborn in the UnitedStates is he a naturalborn citizengenerally.It is thusincumbent nor upon the Secretary of Stateto verify his eligibility pursuantto her constitutional duty, and to do otherwisewould be to abdicate authority as the chief electionsofficer of Alabama. If shedoesnot exercise her this constitutional duty shehas no "raisond'€tre"to be the Secretary Stateoverseeing of the presidential electionin Alabama.

The Secretary StateMust Verif.vThe Eligibilit)'Of The Candidates of BeforePlacingTheir Nameson the AlabamaBallot. Mandamushas frequentlybeenusedto compela stateofficial to comply with the U.S. Constitution.Seee.g. P.R. v. Branstad,483 U.S. 219 (1987)ln Branstad,the governorof Puerto fuco soughtextraditionof an allegedmurdererfrom the stateof Iowa. When the governorof Iowa refusedto follow the Extradition Clauseof the U.S. Constitutionand failed to tum over the 1l

accused murderer,a writ of mandamus was issuedcommandingthe govemor of Iowa to follow the U.S. Constitutionand turn over the allegedmurderer. In issuingthe writ of mandamus, the Supreme Court madeclear that "when a plain official duty, requiring no exerciseof discretion,is to be performed,and performanceis refused,any personwho will sustainpersonalinjury by suchrefusalmay have a mandamus compelits performance," citing Board of to Id. Liquidation McComb,92 U.S.531,541 (1876). v. "Mandamusis a drasticand extraordinary writ, to be issuedonly where thereis (1) a clear legal right in the petitionerto the order sought;(2) an imperativeduty upon the respondent to perform,accompanied a refusalto do so; (3) the lack of anotheradequate by remedy;and (4) properlyinvokedj urisdiction of the court." Ex parte Integon Corp., 672 So.2d 497 499 (Ala. ,

1 ees).
ClearLeealRieht. Plaintiffshavea clearlegalright to the ordersought. Plaintiff Mclnnish is a citizenof Alabamaand of the United States.He is a registered voter who will vote in the 2012 general election. He payseachyear all the numeroustaxeshe owes,which typically include income taxes,real estatetaxes,and salestaxes,amongothers.Further,he is burdenedwith his shareof the nationaldebt to the extentof approximately$50,000,which for him and his wife, risesto a sumof $100,000, and if his four grandchildren includedto a sum of $300,000, debtwhich are a is rapidlygrowing. Plaintiff Mclnnish has a manifestinterestin the maintenance lawful, constitutional of goverTrment, that it is vital to the well being of his property,himself, and his progeny. He in certainlyhasa clear legal right to have the state'schief electionsofficer perform her dutiesto ensure honestelectionsin furtherance maintaininga stable,constitutionalgovernment. of


In addition to being a citizen of Virginia and of the United States, Plaintiff Virgil H. Goode,Jr. is a candidatefor the Office of President the United Statesfor the Constitution of Party in a numberof other states. Plaintiff Goodehasbeenplacedon the 2012 Alabama election ballot for the office of President the United States.It is a clear violation of his right to run for of office to have ineligible candidates on the sameballot. SeeHollander v. McCain, 566 mn F.Supp.2d 63,68(D.N.H. 2008)("To be sure,courtshaveheld that a candidate his political or party hasstandingto challengethe inclusionof an allegedlyineligible rival on the ballot, on the theorythat doing so hurts the candidate's party'sown chances prevailing in the election"). or of

Impetrativeduty upon the respondent perform. accompanied a refusalto do so. to by The Secretary Stateis responsible overseeing elections,and the printing of of for all ballots, the Stateof Alabama.Codeof Alabama$ 17-14-20, seq.The imperative in et duty of the Secretary Stateof Alabama stemsfrom the oath of office that sheswore at the time she of assumed office. The AlabamaConstitution provides: "All members the legislature, all officers,executive judicial, beforethey enter of and and upon the executionof the dutiesof their respective offices, shall take the following oath or affirmation: I, ..., solemnly swear(or affirm, as the casemay be) that I will supportthe Constitutionof the United States, and the Constitutionof the Stateof Alabama,so long as I continuea citizen thereof;and that I will faithfully and honestlydischarge the dutiesof the office upon which I am aboutto enter,to the bestof my ability. So help me God. " Ala. Const. 1901, XVI, F279,cl. l. of art. Ala. Code$ l7-9-3 instructs Secretary Stateas follows: "(a) The following persons the of shall be entitledto havetheir namesprinted on the appropriate ballot for the generalelection,


provided they are otherwisequalified for the office they seek...."(Emphasisadded.) (Thoseso entitledare then listed,e.g.,thosecertified by their respective parties.)

"[P]rovided they are otherwisequalified" is not mere surplusage addedat whim by the Legislature, was includedin the law for a substantive but purpose.By allowing only thosewho are "otherwisequalified" to appearon the ballot the statuteunquestionably implies that therewill be thosewho seekoffice who are not qualified,and suchpersonsare not entitled,nor even permitted,to have their nameson the ballot. This phrasemakesclear that the lawmakerswere anticipatingthat namesmight be submittedto the Secretary Statewhich were legitimateprima of facie, but not legitimatede.facto,and that suchas theseshouldnot be allowed on the ballot by the State'sChief ElectionsOfficial. The U.S. Constitution,which the Secretary Statetook an of oath to uphold,providesa specificset of requirements one to be eligible for the Office of for President the United States.As the Supreme of Court hasclarified,"...thepowerandjurisdiction of the Stateis exclusive, with the exception the provisions to the numberof electors of as andthe ineligibility of certainpersons, framedthat Congressional Federalinfluencemight be so and excluded." McPherson Blacker,146U.S. l, 35 (1892). The states v. may not in any way alter the eligibility requirements mandated the Constitution. by

The oath of office is the common root from which the three branches sovernment of springforth. It is so vital to our form of government that JusticeMarshall cited the Supreme judicial review. Marbury v. Madison,5 U.S. Court Justices' oath as the groundsfor establishing 137. In fidelity to her oath of office, supra, in which sheswore (or affirmed) that shewould "...support... Constitution the Stateof Alabama...," the of and in view of the instructions contained Ala. Code $ 17-9-3, in supra,codifiedin law underthe U.S. Constitution, the


Secretary Statehas an imperativeduty to determinewhetherthe candidates of meet the Constitutional requirements the Presidency for and are eligible for placementon the ballot. It is inherentto her dutiesas the chief electionsofficer that any candidate that is nominatedor elected by the stateof Alabamamust be verified as eligible for that office.

The Secretary State,acting on behalf of the stateof Alabama,must, of course,obey the of U.S. Constitution."lt would be superfluous restate the occasions which this Courthas to all on imposedupon stateofficials a duty to obey the requirements the Constitution,or compelled of the performance suchduties;it may suffice to refer to Brown v. Board of Education,349 U.S. of 294 (1955),andCooperv. Aaro4 358 U.S. I (1958)." Branstad,483U.S. at228. lf the Secretary Stateallows an ineligible personto run for the Office of President the United of of States would be in directviolationof the U.S. Constitution.This outcomecannotbe allowed. it

Yet on February2,2012 Plaintiff Mclnnish, togetherwith his attomey and others,visited the Office of the Secretary State,during which meetingthe Hon. Emily Thompson,Deputy of Secretary State,speakingin the absence and for the Secretary State,represented her of of of that office would not investigate legitimacyof any candidate, the thus violating her dutiesunderthe U.S. and AlabamaConstitutions.It is clear that the Secretary Stateis unlawfully refusingto of performher constitutionalduty and must thereforebe orderedto do so.

Lack of Another AdequateRemedy. Alabama'sElection Conteststatutes, list $17-9-3et. seq,govem only an enumerated of electedoffices that may be contested.This statuteallows for challenges all Alabama state to officers,as well as thoseelectedto the judiciary in the state. This statutedoesnot mentionany federaloffice, and specificallydoesnot mentionthe Office of President the United States. of


AlabamaCode g 17-16-44further provides: "No jurisdiction existsin or shall be exercised anyjudge or court to entertain by any proceedingfor ascertaining legality, conduct,or resultsof any election, the exceptso far as authority to do so shall be speciallyand specificallyenumerated and set down by statute." AlabamaCode $ 17-9-3is thus the only electionconteststatute, and it doesnot provide for a contest the electionof the President the United States.Moreover,Code $ 17-16-44 to of jurisdiction to challenge specificallyeliminates other elections. Thus, there is no other adequate remedy. The Secretary Stateis the sole government of official who is in a position to interdict the nameof an illegitimate candidate and excludeit from the ballot. If the Secretary Statefailed to perform this duty, it would mean shewas violating the of highest law of this land,the U.S. Constitution. would alsomeanthat a wrong of the most It serioussort would go unattended, namely one or more personsaboutwhom therewere legitimate questions concemingtheir eligibility for the Office of President the United States of would be placedon the ballot -- and possiblyevenelected that office -- without beingeligibleto hold for it. But equity demands that for every wrong therebe a remedy. In this instancethe obvious remedyis an extraordinarilysimple one. It is to requireeachcandidate do what every to teenager requiredto do to get a learner's is driving permit. It is to producea bona fide birth certificate,and the Secretary Stateis the official to do that. of

ProperlyInvoked Jurisdictionof the Court. Circuit courtshave originaljurisdiction to hearcases involving mandamus pursuantto Ala. Code$ 6-6-640. Seee.g.Ex parte Collins,84 So. 3d 48, 50 (Ala. 2010).


All of the elementsprerequisite the issuance a writ of mandamus for of have beenmet. It is clearthat the Secretary Statehas a duty to veriS the eligibility of the candidates the of for Office of President the United States, of includingthe eligibility of candidate OBAMA.

AlabamaCode $17-16-44 DoesNot Bar This Action.

The aforementioned AlabamaCode $ 17-16-44 provides: "No jurisdiction exists in or shall be exercised any judge or court to entertain by any proceedingfor ascertaining legality, conduct,or resultsof any election, the exceptso far as authority to do so shall be speciallyand specificallyenumerated and set down by statute."

In the caseof Rice v. Chapman,5l So. 3d 281(2010) AlabamaSupreme the Court invoked 'Jurisdiction AlabamaCode $ 17-16-44, so-called the strippingstatute," and concluded that it had no jurisdictionto hearthe lawsuit.Ricev. Chapman,5l So. 3d 281 (2010). In Rice,theplaintiff soughtto preventthe RepublicanParty from canvassing votescastfor a possibly ineligible candidate who had allegedlynot timely qualified. The Alabama SupremeCourt found that the preventionof a party from canvassing voteswould "impact the 'conduct"'of the Republican Primaryelection,one of the specificallyprohibitedactions.It was for this reasonthat the Court jurisdiction. foundthat $ 17-16-44 stripped Court from havingsubject the matter Yet it is only proceedings that entertainthe "legality, conduct,or resultsof any election" prevents.Unlike Rice,this lawsuitdoesnot seekto question legalityof the that $17-16-44 the election,nor doesit impact the "conduct"of the election,nor doesit contestthe resultsof an election. Ratherthis lawsuit is aboutthe eligibility of thoseseekingto participatein the election and the duty of the Secretary Stateto determinethe eligibility of thoseattemptingto of participate.None of theseactionswill affect the "legality, conduct,or results"of the2012


general election.In fact,the eligibilityof thecandidates be determined before can long the election place. takes Thus,noneof theprohibited actions gI 7-16-44areimplicated this of by instant lawsuitandthis lawsuitis not banedby thatstatute. Further, doesnot preempt U. S. Constitution its demands the in made a on 517-16-44 candidate the officeof President theUnitedStates. for of


For the foregoingcompelling reasons, Plaintiffs respectfullyrequestthat this honorable court expeditiouslyissuea summaryjudgment in favor of Plaintiffs, and issuea writ of mandamus orderingDefendantBeth Chapmanto verifu the eligibility of all the candidates for the Office of President the United States requiring from eacha bona fide birth certificate of by sentdirectly to her from the official in chargeof the depositorywhere such is held, and verifying that eachis of the character and quality of that requiredfor a teenager receivea driver's to permit, beforeplacing them on the2012 generalelectionballot. Petitioners learner's also ask for suchotherrelief as plead in the Verified Complaintwhich may bejust or proper.

Plaintiffs respectfullyrequestan expediteddecisiondue to the quickly approaching elections which are a mere one month away. Accordingly, Plaintiff respectfullyrequests that Defendant'sresponse time to this motion be shortenedto 5 calendar days from the date of serviceof the Verified Complaint and this motion.



Lany Klayman, Esq, Klayman Law Firm 2020Pennsylvania Ave. NW, Suite800 Washington, DC 20006

Tel:(310) 59s-0800
Email: leklayman@gmail.com Pro Hac Vice Pendins

. DeanJohnson (J

L. Dean Johnson, P.C. 4030Balmoral SuiteB Dr., Huntsville, 35801 AL ) T e l :( 2 5 6 88 0 -5 1 7 7 ( ) F a x : 2 5 6 8 8 0 -5 1 8 7 Email Johnson_dean(@bellsouth.net :


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