2011-12-27 Swensson Proposed Pretrial Order

OFFICE OF STATE ADMINISTRATIVE HEARINGS
CARL SWENSSON,
Plaintiff
v.
BARACK OBAMA,
Defendant
STATE OF GEORGIA
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,,- ._" - - ..
l{> ". J" \ ,;; ..
NO.: OSAB-SECSTATE-CE-
1216218-60-MALIHI
KEVIN RICHARD POWELL,
Plaintiff
v.
BARACK OBAMA,
Defendant
STATE OF GEORGIA
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DOCKET NO.: OSAB-SECSTATE-CE-
1216823-60-MALIHI
PRE-TRIAL ORDER
NOW COME Plaintiffs Carl Swensson and Kevin Richard Powell
in the above-captioned cases, by and through undersigned counsel,
and file the following Pretrial Order:
(1) The name, address, phone number, fax number and E-mail
address of the attorney(s) who will conduct the hearing are as
follows:
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J. Mark Hatfield
Thomas E. Hatfield
Hatfield & Hatfield, P.C.
201 Albany Avenue
P.O. Box 1361
Waycross, Georgia 31502
(912) 283-3820
(912) 283-3819 Fax
mhatfield@wayxcable.com
(2) The estimated time required for hearing:
Direct examination: 2 hours
Cross examination: Unknown, as Plaintiffs do not know what
witnesses may be called by the defense.
Plaintiffs reserve 2 hours.
Total: 4 hours
(3) The following motion(s) are pending/anticipated for
consideration by the Court:
Motion:
Date filed:
Motion For Extension of Time to Respond to
Motions to Dismiss
Submitted by email December 22, 2011 after
4:30 p.m.
Plaintiffs additionally anticipate hereafter filing a motion
to sever the cases of Plaintiffs from the cases of
Plaintiffs Farrar, Lax, Judy, Malaren, and Roth; a motion
for the taking of the depositions of relevant witnesses,
including Michael R. Berlon and Georgia Secretary of State
Brian Kemp; and a motion to be permitted to videotape the
hearing and proceedings in these matters. Plaintiffs
reserve the right to file additional motions as issues may
dictate or as may hereafter be deemed necessary by
undersigned counsel for a full presentation of the merits of
these cases.
(4) The issues for determination by the Court are as
follows:
A. Whether or not Defendant Barack Hussein Obama II
satisfies the "natural born Citizen" requirement of
Article II, Section I, Clause 5 of the United States
Constitution; and
B. Whether or not Defendant Barack Hussein Obama II is
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eligible to be placed on the Georgia ballot for the
Presidency of the United States of America.
(5) The following is an in depth outline of the case and
contentions including specific statutes or rules or other source
of law upon which each issue is based and any special authorities
relied upon (please attach a copy of any case, statute, rule,
and/or regulation cited):
Plaintiffs contend that Defendant Barack Hussein Obama II
does not meet the ~ n a t u r a l born Citizen" requirement of
Article II, Section I, Clause 5 of the United states
Constitution regarding eligibility for the Presidency of the
United States of America. plaintiffs also contend that
Defendant's father, Barack Obama, Sr., was a native and
citizen of Kenya and a British subject who never became a
United States citizen.
Plaintiffs will rely upon the following legal authorities in
these cases:
United States Constitution:
Article II, Section I, Clauses 2 and 5
Twelfth Amendment
Fourteenth Amendment
Official Code of Georgia Annotated:
21-2-2
21-2-5
21-2-10
21-2-15
21-2-153
21-2-193
U.S. Supreme Court:
Minor v. Happersett, 88 U.S. 162, 22 L. Ed. 627 (1875).
(6) The types of relief sought are stated as follows:
A. Plaintiffs seek a ruling herein that Defendant Barack
Hussein Obama II does not satisfy the ~ n a t u r a l born
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Citizen" requirement of Article II, Section I, Clause 5
of the United States Constitution, and consequently,
that Defendant is not eligible to be placed on the
Georgia ballot for the Presidency of the United states
of America.
(7) The following facts are stipulated (if any):
A. None at this time. Counsel for Plaintiffs will seek to
reach stipulations with counsel for Defendant prior to
the hearing in these matters.
(8) The following is a list of all exhibits that will be
tendered at the hearing. Unless noted, the parties have
stipulated as to the authenticity of the exhibits listed and the
exhibits listed may be admitted without further proof of
authenticity. All exhibits shall be marked by counsel prior to
hearing. Parties shall consolidate exhibits by eliminating
duplicates and use a common numbering system for joint exhibits
so that one set of joint exhibits is presented to the Judge.
Exhibits shall be pre-marked by the parties sequentially starting
with "P-1." for the Plaintiffs' exhibits, and "D-1" for the
Defendant's exhibits. A copy of the exhibits shall be given to
the opposing party no less than 5 days before the hearing and to
the Judge when first identified at the hearing.
1. All documentary evidence received by the Georgia
Secretary of state's Office regarding Defendant's
eligibility as a candidate for the Presidency of the
United States.
2. Written challenges filed by both Plaintiffs herein.
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3. Certified copy of divorce proceedings and judgment in
Stanley Ann D. Obama v. Barack H. Obama, State of
Hawaii First Judicial Circuit, Division of Domestic
Relations, Docket Number 57972.
4. Birth certificate of Defendant Barack Hussein Obama II.
5. Documentation of the national citizenship of Barack
Obama, Sr.
6. Plaintiffs reserve the right to amend this exhibit
list, with notice to opposing counsel, prior to the
hearing of these matters.
(9) The testimony of the following persons may be
introduced by depositions:
Plaintiffs may introduce the testimony of the following
witnesses by deposition herein:
Michael R. Berlon
Brian Kemp
Any other witness whose deposition is taken prior to the
(10) The following are lists of witnesses and a brief
description of each witness' expected testimony and relation to
the issues for determination:
Plaintiffs may call the following witnesses herein:
1. Michael R. Berlon. This witness, Chairman of the
Democratic Party of Georgia, will testify to
information given and/or known to the Democratic Party
concerning Defendant's eligibility as a candidate for
the Presidency of the United States.
2. Brian Kemp. This witness, the Secretary of State of
Georgia, will testify as to any and all evidence
received by the Secretary of State's Office concerning
Defendant's eligibility as a candidate for the
Presidency of the United States.
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3. Plaintiffs Carl Swensson and Kevin Richard Powell.
These witnesses will testify as to the foundation and
bases for the challenges to the eligibility of
Defendant as a candidate for the Presidency of the
United States.
4. Defendant Barack Hussein Obama II. This witness will
testify as to his eligibility as a candidate for the
Presidency of the United States.
5. Plaintiffs reserve the right to amend this witness
list, with notice to opposing counsel, prior to the
Opposing counsel may rely on representation by the designated
party that she/he will have a witness present unless notice to
the contrary is given in sufficient time prior to the hearing to
allow the opposing party to subpoena the witness or obtain
her/his testimony by other means.
(11) The hearing can be avoided if the parties are able to
settle the dispute voluntarily. Mediation is available as a
possible means of resolving your differences without the
necessity of a formal hearing. The possibilities of settling the
case are:
None.
This 27th day of December, 2011.
201 Albany Avenue
P.O. Box 1361
(912) 283-3820
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ORDER
IT IS HEREBY ORDERED that the foregoing, including the
attachments thereto, constitutes the PRE-TRIAL ORDER in the above
cases upon filing with the Clerk and supersedes the pleadings
that may not be further amended except by order of the Court to
prevent manifest injustice.
SO ORDERED, this
day of ____________ , 2012.
MICHAEL MALIHI, JUDGE
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At .,rney for Intiffs
Georgia Bar No. 337509
4
J1kark tf
CERTIFICATE OF SERVICE
I, J. Mark Hatfield, Attorney for Plaintiffs, do hereby
certify that, pursuant to the Order entered in the above-
captioned matters regarding electronic service, I have this day
served the foregoing Pre-Trial Order upon:
Michael Jablonski
michael.jablonski@comcast.net
by email addressed thereto in order to insure proper delivery.
This 27th day of December, 2011.
HATFIELD & HATFIELD, P.C.
201 Albany Avenue
P.O. Box 1361
(912) 283-3820
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Page 1
Lex
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sNexis'
1 of 1 DOCUMENT
UNITED STATES CODE SERVICE
Copyright 2011 Matthew Bender & Company, Inc.
a member of the LexisNexis Group (TM)
All rights reserved.
CONSTITUTION OF THE UNITED STATES OF AMERICA
ARTICLE II. EXECUTIVE POWER
Go to the United States Code Service Archive Directory
USCS Const. Art. II, 1, Cl 2
Sec. 1, Cl 2. Presiden:ial electors.
Each State shall appoint :
:, in such Manner as the Legislature thereof may direct,
a Number of Electors, equal to the whole Number of Senators and Representatives
to which the State may be entitled in the Congress: but no Senator or Represen-
tative, or Person holding an Office of Trust or Profit under the United States,
shall be appointed an Elector.
HISTORY; ANCILLARY LAWS AND DIRECTIVES
Explanatory notes:
This clause is popularly known as the "Elector Appointments Clause".
NOTES:
Related Statutes & Rules:
Election of President and Vice President, generally, USCS Constitution,
Amendment 12.
Presidential and Vice Presidential electors for District of Columbia, USCS
Constitution, Amendment 23.
Presidential Elections and Vacancies, electors, 3 USCS 1 et seq.
Research Guide:
Am Jur:
25 Am Jur 2d, Elections 6.
77 Am Jur 2d, United States 17.
Annotations:
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Page 1
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1 of 1 DOCUMENT
Copyright 2011 Matthew Bender & Company, Inc.
CONST:TUTION OF THE UNITED STATES OF AMERICA
ARTICLE II. EXECUTIVE POWER
USCS Const. Art. II, 5 1, Cl 5
Sec. 1, Cl 5. Eligibility for office of President.
No Person except a natural born Citizen, or a Citizen of the United States, at
the time of the Adoptior of this Constitution, shall be eligible to the Office
of President; neither any Person be eligible to that Office who shall not
have attained to the Age of thirty five Years, and been fourteen Years a Resi-
dent within the United States.
Explanatory notes:
This clause is popularly known as the "Presidential Qualifications Clause".
Part of this clause is also popularly known as the "Natural Born Citizen
Clause".
NOTES:
Research Guide:
Am Jur:
3B Am Jur 2d, Aliens and Citizens 1879.
Immigration:
1 Immigration Law and Procedure (rev.
tion Law 1.03.
Citizenship 91.02.
5 94.01.
ed.), ch 1, General Scheme of Immigra-
ed.), ch 91, Survey of Nationality and
ed.), ch 94, Overview of Naturalization
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AMENDMENTS
AMENDMENT 12
USCS Const. Amend. 12
Election of President and Vice-President.
The Electors shall meet in their respective states and vote by ballot for Presi-
dent and Vice-President, one of whom, at least, shall not be an inhabitant of
the same state with themselves; they shall name in their ballots the person
voted for as President, and in distinct ballots the person voted for as Vice-
President, and they shall make distinct lists of all persons voted for as Presi-
dent, and of all persons voted for as Vice-President, and of the number of votes
for each, which lists they shall sign and certify, and transmit sealed to the
seat of the government of the United States, directed to the President of the
Senate; -- the President of the Senate shall, in the presence of the Senate and
House of Representative::, open all the certificates and the votes shall then be
counted; -- The person having the greatest number of votes for President, shall
be the President, if such number be a majority of the whole number of Electors
appointed; and if no person have such majority, then from the persons having the
highest numbers not exceeding three on the list of those voted for as President,
the House of Representatives shall choose immediately, by ballot, the President.
But in choosing the President, the votes shall be taken by states, the represen-
tation from each state having one vote; a quorum for this purpose shall consist
of a member or members from two-thirds of the states, and a majority of all the
states shall be necessary to a choice. And if the House of Representatives shall
not choose a President v.henever the right of choice shall devolve upon them, be-
fore the fourth day of :arch next following, then the Vice-President shall act
as President, as in case of the death or other constitutional disability of the
President. -- The person having the greatest number of votes as Vice-President,
shall be the Vice-President, if such number be a majority of the whole number of
Electors appointed, and if no person have a majority, then from the two highest
numbers on the list, the Senate shall choose the Vice-President; a quorum for
the purpose shall consist of two-thirds of the whole number of Senators, and a
majority of the whole number shall be necessary to a choice. But no person con-
stitutionally ineligible to the office of President shall be eligible to that of
Vice-President of the United States.
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1 of 1 DOCUMENT
Copyric,ht 2011 Matthew Bender & Company, Inc.
AMENDMENTS
AMENDMENT 14
USCS Const. Amend. 14, 1
Sec. 1. [Citizens of the United States.]
All persons born or naturalized in the United States, and subject to the juris-
diction thereof, are citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall abridge the privi-
leges or immunities of citizens of the United States; nor shall any State de-
prive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.
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1 of 59 DOCUMENTS
OFFICIAL CODE OF GEORGIA ANNOTATED
Copyright 2011 by The State of Georgia
*** Current Through the 2011 Extraordinary Session ***
*** Annotations Current Through October 14, 2011 ***
TITLE 21. ELECTIONS
CHAPTER 2. ELECTIONS AND PRIMARIES GENERALLY
ARTICLE 1. GENERAL PROVISIONS
Go =o the Georgia Code Archive Directory
O.C.G.A. 21-2-2
(2011)
21-2-2. Definitions
As used in this chapter, the term:
(.1) "Activities ct daily living" includes eating, toileting, grooming,
dressing, shaving, transferring, and other personal care services.
(.2) "Attendant care services" means services and supports furnished to an
individual with a physical disability, as needed, to assist in accomplishing ac-
tivities of daily living, instrumental activities of daily living, and health
related functions through hands-on assistance, supervision, or cuing.
(1) "Ballot" means "official ballot" or "paper ballot" and shall include
the instrument, whether paper, mechanical, or electronic, by which an elector
casts his or her vote.
(2) "Ballot labels" means the cards, paper, or other material placed on
the front of a voting machine containing the names of offices and candidates and
statements of questions to be voted on.
(3) "Call" or "the call," as used in relation to special elections or spe-
cial primaries, means the affirmative action taken by the responsible public of-
ficer to cause a special election or special primary to be held. The date of the
call shall be the date of the first publication in a newspaper of appropriate
circulation of such affirmative action.
(4) "Custodian" means the person charged with the duty of testing and pre-
paring voting equipment for the primary or election and with instructing the
poll officers in the use of same.
(4.1) "Direct recording electronic" or "DRE" voting equipment means a com-
puter driven unit for casting and counting votes on which an elector touches a
video screen or a button adjacent to a video screen to cast his or her vote.
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O.C.G.A. 21-2-2
(5)
"Election" oriinarily means any general or special election and shall
not include a primary or special primary unless the context in which the term is
used clearly requires that a primary or special primary is included.
(6)
"Election district" is synonymous with the terms "precinct" and "vot-
ing precinct."
(7)
"Elector" means any person who shall possess all of the qualifications
for voting now or hereafter prescribed by the laws of this state, including ap-
plicable charter provisLons, and shall have registered in accordance with this
chapter.
(8) "General election" means an election recurring at stated intervals
fixed by law or by the respective municipal charters; and the words "general
primary" mean a primary recurring at stated intervals fixed by law or by the re-
spective municipal charl:ers.
(9) "Health related functions" means functions that can be delegated or
assigned by licensed health care professionals under state law to be performed
by an attendant.
(10) "Independent" means a person unaffiliated with any political party or
body and includes candidates in a special election for a partisan office for
which there has not been a prior special primary.
(11) "Managers" means the chief manager and the assistant managers re-
quired to conduct primaries and elections in any precinct in accordance with
this chapter.
(12) "Municipal office" means every municipal office to which persons can
be elected by a vote of the electors under the laws of this state and the re-
spective municipal charters.
(13) "Municipality" means an incorporated municipality.
(14) "Nomination" means the selection, in accordance with this chapter, of
a candidate for a public office authorized to be voted for at an election.
(15)
"November election" means the general election held on the Tuesday
next following the first. Monday in November in each even-numbered year.
(16) "Numbered list of voters" means one or more sheets of uniform size
containing consecutively numbered blank spaces for the insertion of voters'
names at the time of and in the order of receiving their ballots or number slips
governing admissions to the voting machines.
(17) "Oath" shall include affirmation.
(18)
"Official ballot" means a ballot, whether paper, mechanical, or elec-
tronic, which is furnished by the superintendent or governing authority in ac-
cordance with Code Section 21-2-280, including ballots read by optical scanning
tabulators.
(19) "Official ballot label" means a ballot label prepared in accordance
with Article 9 of this caapter and delivered by the superintendent to the poll
officers in accordance with Code Section 21-2-328.
(20) "Paper ballot" or "ballot" means the forms described in Article 8 of
this chapter.
(21)
"Party nomina:ion" means the selection by a political party, in ac-
cordance with this chapter, of a candidate for a public office authorized to be
voted for at an election,
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O.C.G.A. 21-2-2
(22) Reserved.
(23) "Political body" or "body" means any political organization other
than a political party.
(24) "Political organization" means an affiliation of electors organized
for the purpose of influencing or controlling the policies and conduct of gov-
ernment through the nomination of candidates for public office and, if possible,
the election of its candidates to public office, except that the term "political
organization" shall not include a "subversive organization" as defined in Part 2
of Article 1 of Chapter 11 of Title 16, the "Sedition and Subversive Activities
Act of 1953."
(25) "Political party" or "party" means any political organization which
at the preceding:
(A) Gubernatorial election nominated a candidate for Governor and whose
candidate for Governor at such election polled at least 20 percent of the total
vote cast in the state for Governor; or
(B) Presidential election nominated a candidate for President of the
United States and whose candidates for presidential electors at such election
polled at least 20 percent of the total vote cast in the nation for that office.
(26) "Poll officers" means the chief manager, assistant managers, and
clerks required to conduct primaries and elections in any precinct in accordance
with this.chapter.
(27) "Polling place" means the room provided in each precinct for voting
at a primary or election.
(28) "Precinct" is synonymous with the term "voting precinct" and means a
geographical area, established in accordance with this chapter, from which all
electors vote at one polling place.
(29) "Primary" means any election held for the purpose of electing party
officers or nominating candidates for public offices to be voted for at an elec-
tion.
(30) "Public office" means every federal, state, county, and municipal of-
fice to which persons can be elected by a vote of the electors under the laws of
this state or the respective municipal charters, except that the term shall not
include the office of soil and water conservation district supervisor.
(31) "Question" means a brief statement of such constitutional amendment,
charter amendment, or other proposition as shall be submitted to a popular vote
at any election.
(32) "Residence" means domicile.
(33) "Special election" means an election that arises from some exigency
or special need outside the usual routine.
(34) "Special primary" means a primary that arises from some exigency or
special need outside the usual routine.
(35) "Superintendent" means:
(A) Either the judge of the probate court of a county or the county
board of elections, the county board of elections and registration, the joint
city-county board of elections, or the joint city-county board of elections and
registration, if a county has such;
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Page 4
O.C.G.A. 21-2-2
(B)
In the case of a municipal primary, the municipal executive commit-
tee of the political party holding the primary within a municipality or its
agent or, if none, the county executive committee of the political party or its
agent;
(C) In the case of a nonpartisan municipal primary, the person ap-
pointed by the proper municipal executive committee; and
(D) In the case of a municipal election, the person appointed by the
governing authority pursuant to the authority granted in Code Section 21-2-70.
(36) "Swear" shall include affirm.
(37)
"Violator" means any individual, partnership, committee, association,
corporation, limited lidbility company, limited liability partnership, profes-
sional corporation, trust, enterprise, franchise, joint venture, political
party, political body, candidate, campaign committee, political action committee
or any other political committee or business entity, or any governing authority
that violates any provision of this chapter.
(38) Reserved.
(39) "Voter" is synonymous with the term "elector."
(40) "Voting machine" is a mechanical device on which an elector may cast
a vote and which tabulates those votes by its own devices and is also known as a
"lever machine."
(41) "Write-in ballot" means the paper or other material on which a vote
is cast for persons whoE.e names do not appear on the official ballot or ballot
labels.
HISTORY: Code 1933, 34-103, enacted by Ga. L. 1964, Ex. Sess., p. 26, 1; Ga.
L. 1970, p. 347, 1; Ga. L. 1978, p. 1004, 1, 2; Ga. L. 1979, p. 964, 1;
Ga. L. 1982, p. 3, 21; Ga. L. 1982, p. 1512, 1; Ga. L. 1983, p. 140, 1;
Ga. L. 1984, p. 696, 1; Ga. L. 1988, p. 964, 1; Ga. L. 1989, p. 10, 1; Ga.
L. 1994, p. 279, 1; Ga. L. 1997, p. 590, 1; Ga. L. 1998, p. 145, 1; Ga. L.
1998, p. 295, 1; Ga. I. 1998, p. 1231, 1, 2, 25, 26; Ga. L. 2001, Ex.
Sess., p. 325, 1; Ga. L. 2002, p. 598, 1-1, 2-1; Ga. L. 2003, p. 151, 1;
Ga. L. 2003, p. 517, 1; Ga. L. 2005, p. 253, 1/HB 244; Ga. L. 2006, p. 888,
1/HB 1435; Ga. L. 2010, p. 914, 1/HB 540.
NOTES: THE 2006 AMENDMENT, effective January 1, 2007, added new paragraphs (.1)
and (.2); and substituted ""Health related functions' means functions that can
be delegated or assigned by licensed health care professionals under state law
to be performed by an attendant." for "Reserved." in paragraph (9).
THE 2010 AMENDMENT, effective July 1, 2010, deleted the second sentence in para-
graph (20), which read: "The term 'paper ballot' shall not include a ballot
card."
CROSS REFERENCES. --District supervisors; election procedure for elected super-
visors, 2-6-30. Probata court's authority to perform duties relating to elec-
tions, 15-9-30.
ADMINISTRATIVE RULES AND REGULATIONS. --Calls for primaries and elections, Offi-
cial Compilation of the (Rules and Regulations of the State of Georgia, Georgia
Election Code, Dates of ?rimaries and Elections, Sec. 183-1-8-.01.
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Page 1
LexisNexis'
1 of 1 DOCUMENT
*** Current. Through the 2011 Extraordinary Session ***
*** AnnotEtions Current Through October 14, 2011 ***
TITLE 21. ELECTIONS
CHAPTE 2. ELECTIONS AND PRIMARIES GENERALLY
Go to the Georgia Code Archive Directory
O.C.G.A. 21-2-5 (2011)
21-2-5. Qualifications of candidates for federal and state office; determina-
tion of qualifications
(a) Every candidate for federal and state office who is certified by the
state executive committee of a political party or who files a notice of candi -
dacy shall meet the constitutional and statutory qualifications for holding the
office being sought.
(b) The Secretary of State upon his or her own motion may challenge the
qualifications of any candidate at any time prior to the election of such candi-
date. Within two weeks after the deadline for qualifying, any elector who is
eligible to vote for a candidate may challenge the qualifications of the candi-
date by filing a written complaint with the Secretary of State giving the rea -
sons why the elector believes the candidate is not qualified to seek and hold
the public office for which he or she is offering. Upon his or her own motion or
upon a challenge being filed, the Secretary of State shall notify the candidate
in writing that his or her qualifications are being challenged and the reasons
therefor and shall advise the candidate that he or she is requesting a hearing
on the matter before an administrative law judge of the Office of State Adminis-
trative Hearings pursuant to Article 2 of Chapter 13 of Title 50 and shall in-
form the candidate of the date, time, and place of the hearing when such infor-
mation becomes available. The administrative law judge shall report his or her
findings to the Secretary of State.
(c) The Secretary of :: State shall determine if the candidate is qualified to
seek and hold the public office for which such candidate is offering. If the
Secretary of State determines that the candidate is not qualified, the Secretary
of State shall withhold :he name of the candidate from the ballot or strike such
candidate's name from the ballot if the ballots have been printed. If there is
insufficient time to str.ke the candidate's name or reprint the ballots, a
prominent notice shall be placed at each affected polling place advising voters
of the disqualification of the candidate and all votes cast for such candidate
shall be void and shall not be counted.
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(d)
In the event that a candidate pays his or her qualifying fee with a check
that is subsequently returned for insufficient funds, the Secretary of State
shall automatically find that such candidate has not met the qualifications for
holding the office being sought, unless the bank, credit union, or other finan-
cial institution returning the check certifies in writing by an officer's or di-
rector's oath that the bank, credit union, or financial institution erred in re-
turning the check.
(e) The elector filing the challenge or the candidate challenged shall have
the right to appeal the decision of the Secretary of State by filing a petition
in the Superior Court of Fulton County within ten days after the entry of the
final decision by the Secretary of State. The filing of the petition shall not
itself stay the decision of the Secretary of State; however, the reviewing court
may order a stay upon appropriate terms for good cause shown. As soon as possi-
ble after service of the petition, the Secretary of State shall transmit the
original or a certified copy of the entire record of the proceedings under re-
view to the reviewing court. The review shall be conducted by the court without
a jury and shall be confined to the record. The court shall not substitute its
judgment for that of the Secretary of State as to the weight of the evidence on
questions of fact. The court may affirm the decision or remand the case for fur-
ther proceedings. The court may reverse or modify the decision if substantial
rights of the appellant have been prejudiced because the findings, inferences,
conclusions, or decisions of the Secretary of State are:
(1) In violation of the Constitution or laws of this state;
(2) In excess of the statutory authority of the Secretary of State;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial
evidence on the whole record; or
(6) Arbitrary or capricious or characterized by an abuse of discretion or
a clearly unwarranted exercise of discretion.
An aggrieved party may obtain a review of any final judgment of the superior
court by the Court of Appeals or the Supreme Court, as provided by law.
HISTORY: Code 1933, 34-304, enacted by Ga. L. 1980, p. 312, 1; Ga. L. 1983,
P. 884, 6-1; Ga. L. 1934, p. 636, 1; Ga. L. 1985, p. 496, 1; Ga. L. 1986,
p. 32, 1; Ga. L. 1987, p. 1360, 1; Ga. L. 1989, p. 900, 1; Ga. L. 1993, p.
617, 1; Ga. L. 1997, p. 590, 2; Ga. L. 1998, p. 145, 1; Ga. L. 1998, p.
295, 1; Ga. L. 1999, p. 21, 1; Ga. L. 1999, p. 52, 1.
NOTES: CROSS REFERENCES. --Persons not eligible to hold office, Ga. Const. 1983,
Art. II, Sec. II, Para. III. Restriction on eligibility of commissioner of
transportation for state or federal elective office, 32-2-40. Eligibility of
commissioner of veterans service for state or federal elective office,
38-4-6.
Eligibility and qualifications of persons for public office generally, Ch. 2, T.
45.
JUDICIAL DECISIONS
EDITOR'S NOTES. --In ligat of the similarity of the provisions, decisions under
former Code Section 21-3-3 are included in the annotations for this Code sec-
tion.
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3FFICIAL CODE OF GEORGIA ANNOTATED
TITLE 21. ELECTIONS
O.C.G.A. 21-2-10 (2011)
21-2-10. Election of presidential electors
At the November election to be held in the year 1964 and every fourth year
thereafter, there shall be elected by the electors of this state persons to be
known as electors of President and Vice President of the United States and re-
ferred to in this chapter as presidential electors, equal in number to the whole
number of senators and lepresentatives to which this state may be entitled in
the Congress of the United States.
HISTORY: Laws 1824, Cobb's 1851 Digest, p. 235; Code 1863, 1251; Code 1868,
1332; Code 1873, 1311; Code 1882, 1311; Civil Code 1895, 89; Civil Code
1910, 103; Code 1933, 34-2501; Ga. L. 1958, p. 208, 1, 3; Code 1933,
34-1601, enacted by Ga. L. 1964, Ex. Sess., p. 26, 1; Ga. L. 1982, p. 3, 21;
Ga. L. 1993, p. 118, 1; Ga. L. 1998, p. 295, 1.
JUDICIAL DECISIONS
ELECTION OF PRESIDENTIAL ELECTORS IS A GENERAL ELECTION. Moore v. Smith, 140 Ga.
854, 79 S.E. 1116 (1913).
RESEARCH REFERENCES
AM. JUR. 2D. --25 Am. Jur. 2d, Elections, 6.
ALR. --Presidential and vice-presidential electors, 153 ALR 1066.
Title Note
Chapter Note
Article Note
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*** Current. Through the 2011 Extraordinary Session ***
TITLE 21. ELECTIONS
0.C.G.A. 21-2-15 (2011)
21-2-15. Applicability of chapter
This chapter shall apply to any general or special election in this state to
fill any federal, state, county, or municipal office, to any general or special
primary to nominate candidates for any such office, and to any federal, state,
county, or municipal election or primary for any other purpose whatsoever,
unless otherwise provided.
HISTORY: Code 1933, 34-102, enacted by Ga. L. 1964, Ex. Sess., p. 26, 1; Ga.
L. 1998, p. 295, 1.
JUDICIAL DECISIONS
GROUND FOR CONTEST APPLICABLE IN MUNICIPAL ELECTION. --Although the Georgia
Election Code was not applicable by its terms to municipal elections, in the ab-
sence of any statutory grounds for contest in the Georgia Municipal Election
Code, the ground for contest in former Code 1933, 34-1703 (see 0.C.G.A. 21-
2-522(c)) was a good ground of contest in a municipal election. Davidson v.
Bryan, 242 Ga. 282, 248 S.E.2d 657 (1978).
CITED in Jones v. Fortscn, 223 Ga. 7, 152 S.E.2d 847 (1967); Campbell v. Hunt,
115 Ga. App. 682, 155 S.E.2d 682 (1967); Hollifield v. Vickers, 118 Ga. App.
229, 162 S.E.2d 905 (19E8); League of Women Voters v. Board of Elections, 237
Ga. 40, 227 S.E.2d 225 (1976); Jarnagin v. Harris, 138 Ga. App. 318, 226 S.E.2d
108 (1976); Dolvin v. Town of Siloam, 246 Ga. 131, 269 S.E.2d 23 (1980).
OPINIONS OF THE ATTORNEY GENERAL
APPLICABILITY TO CITY ELECTIONS. --The provisions of the Election Code relating
to the "nomination of candidates" shall apply to city elections, except where
the provisions of the clarter differ from the code. 1967 Op. Att'y Gen. No. 67-
239.
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CFFICIAL CODE OF GEORGIA ANNOTATED
TITLE 21. ELECTIONS
ARTICLE 4. SELECTION AND QUALIFICATION OF CANDIDATES AND PRESIDENTIAL ELECTORS
PART 2. POLITICAL PARTY AND NONPARTISAN PRIMARIES
O.C.G.A. 21-2-153 (2011)
21-2-153. Qualification of candidates for party nomination in a state or
county primary; posting of list of all qualified candidates; filing of affidavit
with political party by each qualifying candidate; performance of military ser-
vice does not create vacancy
(a) A candidate for any party nomination in a state or county primary may
qualify by either of the two following methods:
(1) Payment of a qualifying fee pursuant to Code Section 21-2-131; or
(2)(A) The submission of a pauper's affidavit by any candidate who has
filed a qualifying petition as provided for in subsection (a.1) of this Code
section, by which the candidate under oath affirms his or her poverty and his or
her resulting inability to pay the qualifying fee otherwise required. The form
of the affidavit shall be prescribed by the Secretary of State and shall include
a financial statement which lists the total income, assets, liabilities, and
other relevant financial information of the candidate and shall indicate on its
face that the candidate has neither the assets nor the income to pay the quali-
fying fee otherwise required. The affidavit shall contain an oath that such can-
didate has neither the assets nor the income to pay the qualifying fee otherwise
required. The following warning shall be printed on the affidavit form prepared
by the Secretary of State, to wit: "WARNING: Any person knowingly making any
false statement on this affidavit commits the offense of false swearing and
shall be guilty of a felony." The name of any candidate who subscribes and
swears to an oath that such candidate has neither the assets nor the income to
pay the qualifying fee otherwise required shall be placed on the ballot by the
Secretary of State or election superintendent, as the case may be.
(B) If a candidate seeks to qualify for a county or militia district
office, the pauper's affidavit and financial statement shall be presented to the
county political party; otherwise, the candidate shall file his or her pauper's
affidavit and financial statement with the state political party.
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(a.1) No candidate shall be authorized to file a pauper's affidavit in lieu
of paying the qualifying fee otherwise required by this Code section and Code
Section 21-2-131
unless such candidate has filed a qualifying petition which
complies with the following requirements:
(1)
A qualifying petition of a candidate seeking an office which is voted
upon state wide shall be signed by a number of voters equal to one-fourth of 1
percent of the total nurther of registered voters eligible to vote in the last
election for the filling of the office the candidate is seeking and the signers
of such petition shall be registered and eligible to vote in the election at
which such candidate seeks to be elected. A qualifying petition of a candidate
for any other office shall be signed by a number of voters equal to 1 percent of
the total number of reg_stered voters eligible to vote in the last election for
the filling of the office the candidate is seeking and the signers of such peti-
tion shall be registered and eligible to vote in the election at which such can-
didate seeks to be elected. However, in the case of a candidate seeking an of-
fice for which there ha:; never been an election or seeking an office in a newly
constituted constituency, the percentage figure shall be computed on the total
number of registered voters in the constituency who would have been qualified to
vote for such office had the election been held at the last general election and
the signers of such pet:.tion shall be registered and eligible to vote in the
election at which such candidate seeks to be elected;
(2) Each person s:i.gning a qualifying petition shall declare therein that
he or she is a duly quaJified and registered elector of the state entitled to
vote in the next election for the filling of the office sought by the candidate
supported by the petition and shall add to his or her signature his or her resi-
dence address, giving municipality, if any, and county, with street and number,
if any. No person shall sign the same petition more than once. Each petition
shall support the candidacy of only a single candidate. A signature shall be
stricken from the petition when the signer so requests prior to the presentation
of the petition to the appropriate officer for filing, but such a request shall
be disregarded if made after such presentation;
(3) A qualifying petition shall be on one or more sheets of uniform size
and different sheets muEt be used by signers resident in different counties. The
upper portion of each sheet, prior to being signed by any petitioner, shall bear
the name and title of the officer with whom the petition will be filed, the name
of the candidate to be Eupported by the petition, his or her profession, busi-
ness, or occupation, if any, his or her place of residence with street and num-
ber, if any, the name of the office he or she is seeking, his or her political
party or body affiliation, if any, and the name and date of the election in
which the candidate is Eeeking election. If more than one sheet is used, they
shall be bound together when offered for filing if they are intended to consti-
tute one qualifying petition, and each sheet shall be numbered consecutively,
beginning with number ore, at the foot of each page. Each sheet shall bear on
the bottom or back thereof the affidavit of the circulator of such sheet, set-
ting forth:
(A) His or her residence address, giving municipality with street and
number, if any;
(B) That each signer manually signed his or her own name with full
knowledge of the contents of the qualifying petition;
(C) That each signature on such sheet was signed within 180 days of the
last day on which such petition may be filed; and
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(D) That, to the best of the affiant's knowledge and belief, the sign-
ers are registered electors of the state qualified to sign the petition, that
their respective residences are correctly stated in the petition, and that they
all reside in the county named in the affidavit;
(4)
No qualifying petition shall be circulated prior to 180 days before
the last day on which such petition may be filed, and no signature shall be
counted unless it was signed within 180 days of the last day for filing the
same; and
(5) A qualifying petition shall not be amended or supplemented after its
presentation to the appropriate officer for filing.
(b) Unless otherwise provided by law, all candidates for party nomination in
a state or county primary shall qualify as such candidates in accordance with
the procedural rules of their party; provided, however, that no person shall be
prohibited from qualifying for such office if he or she:
(1) Meets the requirements of such procedural rules;
(2) Is eligible tc hold the office which he or she seeks;
(3) Is not prohibited from being nominated or elected by provisions of
Code Section 21-2-7 or 21-2-8; and
(4) If party rules so require, affirms his or her allegiance to his or her
party by signing the following oath:
"I do hereby swear or affirm my allegiance to the (name of party) Party."
(c)(1) In the case of a general state or county primary, the candidates or
their agents shall commence qualifying at 9:00 A.M. on the fourth Monday in
April immediately prior to the state or county primary and shall cease qualify-
ing at 12:00 Noon on the Friday following the fourth Monday in April, notwith-
standing the fact that any such days may be legal holidays; provided, however,
that, in the case of a general primary held in the even-numbered year immedi-
ately following the official release of the United States decennial census data
to the states for the purpose of redistricting of the legislatures and the
United States House of Representatives, the candidates or their agents for po-
litical party nomination to county offices shall commence qualifying at 9:00
A.M. on the Wednesday immediately following the third Monday in May immediately
prior to such primary and shall cease qualifying at 12:00 Noon on the Friday im-
mediately following the Wednesday immediately following the third Monday in May,
notwithstanding the fact that any such days may be legal holidays, and provided,
further, that candidates for political party nomination to federal and state of-
fices in a general primary shall commence qualifying at 9:00 A.M. on the Wednes-
day immediately following the third Monday in May immediately prior to such pri-
mary and shall cease qualifying at 12:00 Noon on the Friday immediately follow-
ing the Wednesday immediately following the third Monday in May, notwithstanding
the fact that any such days may be legal holidays, and shall qualify in person
or by their agents with their respective political party in the state capitol
under such rules and regulations as the Secretary of State may promulgate and
provided, further, that all qualifying for federal and state offices on the last
day of the qualifying period shall be conducted in the chamber of the House of
Representatives in the state capitol. In the case of a special primary,
the can-
didate shall qualify no earlier than the date of the call for the special pri-
mary and no later than 25 days immediately prior to the date of such primary,
and such qualifying period shall be open for a minimum of two and
one-half days.
(2) If a political party has not designated at least 14 days immediately
prior to the beginning of qualifying a party official in a county with whom the
candidates of such party for county elective offices shall qualify, the election
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superintendent of the county shall qualify candidates on behalf of such party.
The election superintendent shall give notice in the legal organ of the county
at least
three days before the
beginning of qualifying giving the dates, times,
and
location for qualifying candidates on behalf of such political party.
(d)(1) Within two hoirs after the qualifications have ceased, the county ex-
ecutive committee of each political party shall post at the office of the county
election superintendent a list of all candidates who have qualified with such
executive committee, and the state executive committee of each political party
shall provide a list of all candidates who have qualified with such committee to
the office of the Secretary of State. If the election superintendent qualifies
the candidates for a political party in accordance with subsection (c) of this
Code section, the electLon superintendent shall post at his or her office a list
of all the candidates w.ao have qualified with such superintendent for such po-
litical party.
(2) Except as otherwise provided in Code Section 21-2-154, it shall be
unlawful for any person to add or remove any candidates from either of the lists
provided for in paragraph (1) of this subsection following the posting of such
lists unless such candidates have died, withdrawn, or been disqualified. Any
person who violates thi.; paragraph shall be guilty of a misdemeanor.
(e) Each candidate for party nomination described in subsection (a) of this
Code section shall file an affidavit with the political party at the time of his
or her qualifying stating:
(1) His or her full name and the name as the candidate desires it to be
listed on the ballot. The surname of the candidate shall be the surname of the
candidate as it appears on the candidate's voter registration card. After such
name is certified by the political party to the Secretary of State or the elec-
tion superintendent, the form of such name shall not be changed during the pri-
mary and election for which such affidavit is submitted;
(2) His or her residence, with street and number, if any, and his or her
post office address;
(3) His or her prfession, business, or occupation, if any;
(4) The name of his or her precinct;
(5) That he or she is an elector of the county of his or her residence
eligible to vote in the primary election in which he or she is a candidate for
nomination;
(6) The name of the office he or she is seeking;
(7) That he or she is eligible to hold such office;
(8) That the candidate has never been convicted and sentenced in any court
of competent jurisdiction for fraudulent violation of primary or election laws,
malfeasance in office, or felony involving moral turpitude under the laws of
this state or any other state or of the United States, or that the candidate's
civil rights have been restored and that at least ten years have elapsed from
the date of the completion of the sentence
without a subsequent conviction of
another felony involving moral turpitude;
(9) That he or she will not knowingly violate this chapter or rules or
regulations adopted under this chapter; and
(10) Any other information as may be determined by
the Secretary of State
to be necessary to comply with federal and state law.
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(f) Candidates for tle office of presidential elector or their agents who
have been nominated in accordance with the rules of a political party shall
qualify beginning at 9:D0 A.M. on the fourth Monday in April in the year in
which a presidential election shall be held and shall cease qualifying at 12:00
Noon on the Friday immediately following the fourth Monday in April, notwith-
standing the fact that any such days may be legal holidays; provided, however,
that, for presidential elections held in the even-numbered year immediately fol-
lowing the official release of the United States decennial census data to the
states for the purpose of redistricting of the legislatures and the United
States House of Representatives, candidates for the office of presidential elec-
tor who have been nominated in accordance with the rules of a political party
shall commence qualifying beginning at 9:00 A.M. on the Wednesday immediately
following the third Monday in May immediately prior to such election and shall
cease qualifying at 12:00 Noon on the Friday immediately following the Wednesday
immediately following the third Monday in May, notwithstanding the fact that any
such days may be legal holidays, and shall qualify in person or by their agents
with their respective political party in the state capitol under such rules and
regulations as the Secretary of State may promulgate.
(g) (1) Notwithstand_ng any provision of law to the contrary, any elected
public officer who is performing ordered military duty, as defined in Code Sec-
tion 38-2-279, shall be eligible for reelection in any primary or general elec-
tion which may be held :o elect a successor for the next term of office, and may
qualify in absentia as a candidate for reelection to such office. The perform-
ance of ordered military duty shall not create a vacancy in such office during
the term for which such public officer was elected.
(2) Where the giving of written notice of candidacy is required, any
elected public officer who is performing ordered military duty may deliver such
notice by mail, agent, or messenger to the proper elections official. Any other
act required by law of a candidate may, during the time such officer is on or-
dered military duty, be performed by an agent designated in writing by the ab-
sent public officer.
HISTORY: Code 1933, 3 , ,-1006, enacted by Ga. L. 1964, Ex. Sess., p. 26, 1;
Ga. L. 1966, p. 501, :; Ga. L. 1969, p. 329, 11; Code 1933, 34-1005, en-
acted by Ga. L. 1970, p. 347, 13; Ga. L. 1974, p. 4, 1; Ga. L. 1975, p. 575,
1; Ga. L. 1976, p. 20E- , 1; Ga. L. 1977, p. 1053, 4; Ga. L. 1978, p. 1004,
18; Ga. L. 1982, p. 3, 21; Ga. L. 1982, p. 1512, 5; Ga. L. 1983, p. 930,
4; Ga. L. 1984, p. 1038, 2; Ga. L. 1985, p. 206, 1; Ga. L. 1985, p. 496,
5; Ga. L. 1986, p. 32, f 1; Ga. L. 1987, p. 647, 2; Ga. L. 1987, p. 1360, 8;
Ga. L. 1989, p. 643, E; Ga. L. 1989, p. 903, 1; Ga. L. 1990, p. 243, 2;
Ga. L. 1992, p. 2510, 2; Ga. L. 1993, p. 118, 1; Ga. L. 1993, p. 617, 5;
Ga. L. 1994, p. 1406, f.; 4, 5; Ga. L. 1996, p. 145, 2; Ga. L. 1997, p. 590,
12; Ga. L. 1998, p. 295, 1; Ga. L. 2001, p. 240, 9; Ga. L. 2001, Ex. Sess.,
p. 325, 7; Ga. L. 2003, p. 517, 12-14; Ga. L. 2005, p. 253, 20/HB 244;
Ga. L. 2009, p. 311, 3/HB 156; Ga. L. 2011, p. 535, 2/HB 302; Ga. L. 2011,
p. 683, 4/SB 82.
NOTES: THE 2009 AMENDMENT, effective April 30, 2009, added subsection (g).
THE 2011 AMENDMENTS. --The first 2011 amendment, effective July 1, 2011, in
paragraph (c)(1) and in subsection (f), substituted "Wednesday immediately fol
-
lowing the third Monday in May" for "third Wednesday in June" throughout and
in-
serted "immediately" following "Friday"; inserted "immediately" in paragraph
(c) (2). The second 2011 amendment, effective July 1, 2011, in paragraph (d)(1),
in the first sentence, substituted "office of the county election superinten-
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*** Current: Through the 2011 Extraordinary Session ***
TITLE 21. ELECTIONS
CHAPTE2 2. ELECTIONS AND PRIMARIES GENERALLY
ARTIC1,E 5. PRESIDENTIAL PREFERENCE PRIMARY
O.C.G.A. 21-2-193 (2011)
21-2-193. List of names of candidates to appear on ballot; publication of
list
On a date set by the Secretary of State, but not later than 60 days preceding
the date on which a presidential preference primary is to be held, the state ex-
ecutive committee of each party which is to conduct a presidential preference
primary shall submit to the Secretary of State a list of the names of the candi-
dates of such party to appear on the presidential preference primary ballot.
Such lists shall be published on the website of the Secretary of State during
the fourth week immediately preceding the date on which the presidential prefer-
ence primary is to be held.
HISTORY: Code 1933, 34-1003A, enacted by Ga. L. 1973, p. 221, 1; Ga. L.
1980, p. 5, 1; Ga. L. 1987, p. 1360, 10; Ga. L. 1993, p. 118, 1; Ga. L.
1994, p. 1406, 7; Ga. L. 1997, p. 590, 19; Ga. L. 2007, p. 544, 3/SB 194;
Ga. L. 2011, p. 630, 2/HB 454.
NOTES: THE 2007 AMENDMENT, effective July 1, 2007, substituted "November 1 of"
for "December 31 in" near the beginning of the first sentence; and, in the mid-
dle of the last sentence, substituted "December" for "January" and inserted "im-
mediately preceding the year".
THE 2011 AMENDMENT, effective July 1, 2011, substituted the present provisions
of this Code section for the former provisions, which read: "Not later than No-
vember 1 of the year preceding the year in which a presidential preference pri-
mary is to be held, the state executive committee of each party which is to con-
duct a presidential preference primary shall submit to the Secretary of State a
list of the names of the candidates of such party to appear on the presidential
preference primary ballot. Such lists shall be published by the Secretary of
State in a newspaper of general circulation in the state during the first week
of December in the year :Lmmediately preceding
the year in which the presidential
preference primary is to be held."
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MINOR v. HAPPERSETT.
SUPREME COURT OF THE UNITED STATES
88 U.S. 162; 22 L. Ed. 627; 1874 U.S. 'SKIS 1354 ; 21 Wall.
162
March 29, 1875, Decided; OCTOBER, 1874 , Term
PRIOR HISTORY: [*'*1] ERROR to
the Supreme Court of Missouri; the
case being thus:
The fourteenth amendment to the
Constitution of the United States, in
its first section, thus ordains;
"All persons born or naturalized in
the United States, and subject to the
jurisdiction thereof, are citizens of
the United States, and of the State
wherein they reside. No State shall
make or enforce any law, which shall
abridge the privileges or immunities
of citizens of the Uniti:d States. Nor
shall any State deprive any person of
life, liberty, or property, without
due process of law; nor deny to any
person within its jurisdiction, the
equal protection of the laws."
1 See other sections, infra, p.
174.
And the constitution of the State
of Missouri
2
thus ordains:
"Every male citizen of the United
States shall be entitled to vote."
2 Article 2, 13.
Under a statute of the State all
persons wishing to vote at any elec-
tion, must previously have been regis-
tered in the manner pointed out by the
statute, this being a condition prece-
dent to the exercise of the elective
franchise.
In this state of things, on the
15th of October, 1872 (one of the days
fixed by law for the registration of
voters), [***2] Mrs. Virginia Minor,
a native born, free, white citizen of
the United States, and of the State of
Missouri, over the age of twenty-one
years, wishing to vote for electors
for President and Vice-President of
the United States, and for a represen-
tative in Congress, and for other of-
ficers, at the general election held
in November, 1872, applied to one Hap-
persett, the registrar of voters, to
register her as a lawful voter, which
he refused to do, assigning for cause
that she was not a "male citizen of
the United States," but a woman. She
thereupon sued him in one of the infe-
rior State courts of Missouri, for
wilfully refusing to place her name
upon the list of registered voters, by
which refusal she was deprived of her
right to vote.
The registrar demurred, and the
court in which the suit was brought
sustained the demurrer, and gave judg-
ment in his favor; a judgment which
the Supreme Court affirmed. Mrs. Mi-
nor now brought the case here on er-
ror.
LAWYERS , EDITION HEADNOTES:
Fourteenth constitutional Amendment
meaning of "citizen" -- right of
Suffrage not necessary privilege of
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18'4 U.S. LEXIS 1354, ***; 21 Wall. 162
citizen -- women not voters, under the
Constitution -- state Laws which con-
fer the right of suffrage upon men
alone, valid. --
Headnote:
1. Under the Fourteenth Amendment
to the United States Constitution, a
woman, who is a citizen of the United
States and of the State of Missouri,
is not a voter in that State, inasmuch
as the Constitution ard laws of the
State confine the right of suffrage to
men alone.
2. The word "citizen" in the Con-
stitution of the United States conveys
the idea of membership of a nation and
nothing more; women a:,:e citizens of
the United States.
3. The right of suffrage is not one
of the necessary privileges of a citi-
zen of the United States.
4. The Fourteenth Amendment did not
add to the privileges and immunities
of a citizen. The United States Con-
stitution did not add the right of
suffrage to the privileges and immuni-
ties of citizenship as they existed at
the time the Constitution was adopted.
5. Suffrage was not coextensive
with the citizenship of the States at
the time of its adoption. It was not
intended to make all citizens of the
U. S. voters.
6. A State Government is republican
in form, within the neaning of the
guaranty in that behalf, contained in
the United States Constitution, not-
withstanding women are not made vot-
ers.
7. The Constitution of the United
States does not confer the right of
suffrage upon anyone, and the consti-
tutions and laws of the several States
which commit that important trust to
men alone, are not necessarily void.
SYLLABUS
1. The word "cit_zen" is often
used to convey the idea of membership
in a nation.
2.
In that sense, women, of born
of citizen parents within the juris-
diction of the United States, have al-
ways been considered citizens of
the
United [***3] States, as much so be-
fore the adoption of the fourteenth
amendment to the Constitution as
since.
3. The right of suffrage was not
necessarily one of the privileges or
immunities of citizenship before the
adoption of the fourteenth amendment,
and that amendment does not add to
these privileges and immunities. It
simply furnishes additional guaranty
for the protection of such as the
citizen already had.
4. At the time of the adoption of
that amendment, suffrage was not coex-
tensive with the citizenship of the
States; nor was it at the time of the
adoption of the Constitution.
5. Neither the Constitution nor
the fourteenth amendment made all
citizens voters.
6. A provision in a State consti-
tution which confines the right of
voting to "male citizens of the United
States," is no violation of the Fed-
eral Constitution. In such a State
women have no right to vote.
COUNSEL: Mr. Francis Minor (with whom
were Messrs. J. M. Krum and J. B. Hen-
derson), for the plaintiff in error,
went into an elaborate argument, par-
tially based on what he deemed true
political views, and partially resting
on legal and constitutional grounds.
These last seemed to be thus resolv-
able:
1st. As a citizen [***4] of the
United States, the plaintiff was enti-
tled to any and all the "privileges
and immunities" that belong to such
position however defined; and as are
held, exercised, and enjoyed by other
citizens of the United States.
2d. The elective franchise is a
"privilege" of citizenship, in the
highest sense of the word. It
is the
privilege preservative of all rights
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1874 U.S. LEXIS 1354, ***; 21 Wall. 162
and privileges; and especially of the
right of the citizen tc participate in
his or her government.
3d.
The denial or abridgment of this
privilege, if it exist at all, must be
sought only in the func.amental charter
of government, -- the Constitution of
the United States. If not found
there, no inferior power or jurisdic-
tion can legally claim the right to
exercise it.
4th. But the Constitution of the
United States, so far from recognizing
or permitting any denial or abridgment
of the privileges of its citizens, ex-
pressly declares that 'no State shall
make or enforce any law which shall
abridge the privileges or immunities
of citizens of the United States."
5th. It follows that the provisions
of the Missouri constitution and reg-
istry law before recited, are in con-
flict with and must yield to the para-
mount authority (***51 of the Consti-
tution of the United States.
No opposing counsel.
OPINION BY: WAITE
OPINION
[*165] [**627 The CHIEF
JUSTICE delivered the opinion of the
court.
The question is prEsented in this
case, whether, since the adoption of
the fourteenth amendment, a woman, who
is a citizen of the United States and
of the State of Missouri, is a voter
in that State, notwithstanding the
provision of the constitution and laws
of the State, which confine the right
of suffrage to men alone. We might,
perhaps, decide the case upon other
grounds, but this question is fairly
made. From the opinion we find that
it was the only one decided in the
court below, and it LS the only one
which has been argued::sere. The case
was undoubtedly brought. to this court
for the sole purpose of having that
question decided by us, and in view of
the evident propriety there is of hav-
ing it settled, so far as it can be by
such a decision, we have concluded to
waive all other considerations and
proceed at once to its determination.
It is contended that the provisions
of the constitution and laws of the
State of Missouri which confine the
right of suffrage and registration
therefor to men, are in violation of
the [***6] Constitution of the United
States, and therefore void. The argu-
ment is, that as a woman, born or
naturalized in the United States and
subject to the jurisdiction thereof,
is a citizen of the United States and
of the State in which she resides, she
has the right of suffrage as one of
the privileges and immunities of her
citizenship, which the State cannot by
its laws or constitution abridge.
There is no doubt that women may be
citizens. They are persons, and by
the fourteenth amendment "all persons
born or naturalized in the United
States and subject to the jurisdiction
thereof" are expressly declared to be
"citizens of the United States and of
the State wherein they reside." But,
in our opinion, it did not need this
amendment to give them that position.
Before its adoption the Constitution
of the United States did not in terms
prescribe who should be citizens of
the United States or of the several
States, yet there were necessarily
such citizens without such provision.
There cannot be a nation without a
people. The very idea of a political
community, such as a nation is,
im-
plies an [*166] association of per-
sons for the promotion of their gen-
eral welfare. Each one of the [***7]
persons associated becomes a member of
the nation formed by the association.
He owes it allegiance and is entitled
to its protection. Allegiance and
protection are, in this [**628] con-
nection, reciprocal obligations. The
one is a compensation for
the other;
allegiance for protection and protec-
tion for allegiance.
For
convenience it has been found
necessary to give a name to this mem-
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18 -A U.S. LEXIS 1354, ***; 21 Wall. 162
bership. The object is :0 designate by
a title the person and the relation he
bears to the nation. Fir this purpose
the words "subject," "inhabitant," and
"citizen" have been ised, and the
choice between them is sometimes made
to depend upon the form of the govern-
ment. Citizen is now more commonly
employed, however, and as it has been
considered better suited to the de-
scription of one living under a repub-
lican government, it was adopted by
nearly all of the States upon their
separation from Great Britain, and was
afterwards adopted in Lhe Articles of
Confederation and in the Constitution
of the United States. When used in
this sense it is understood as convey-
ing the idea of membel:ship of a na-
tion, and nothing more.
To determine, then, who were citi-
zens of the United States before the
adoption [***8] of tt:.e amendment it
is necessary to ascertain what persons
originally associated themselves to-
gether to form the nation, and what
were afterwards admitted to member-
ship.
Looking at the Constitution itself
we find that it was ordained and es-
tablished by "the people of the United
States," and then going further
back, we find that these were the peo-
ple of the several States that had be-
fore dissolved the political bands
which connected them w.th Great Brit-
ain, and assumed a separate and equal
station among the powers of the earth,
and that had by Articles of Confed-
eration and Perpetual Jnion, in which
they took the name of "the United
States of America," entered into a
firm league of [*167] friendship
with each other for their common de-
fence, the security of their liberties
and their mutual and general welfare,
binding themselves to assist each
other against all force offered to or
attack made upon them, or any of them,
on account of religion, sovereignty,
trade, or any other pretence whatever.
3 Preamble, 1 ;tat. at Large,
10.
4 Declaration of Independence,
Ib. 1.
5 Articles of Confederation,
3, 1 Stat. at Large, 4.
Whoever, then, was one of the peo-
ple [***9] of either of these States
when the Constitution of the United
States was adopted, became ipso facto
a citizen -- a member of the nation
created by its adoption. He was one
of the persons associating together to
form the nation, and was, conse-
quently, one of its original citizens.
As to this there has never been a
doubt. Disputes have arisen as to
whether or not certain persons or cer-
tain classes of persons were part of
the people at the time, but never as
to their citizenship if they were.
Additions might always be made to
the citizenship of the United States
in two ways: first, by birth, and sec-
ond, by naturalization. This is appar-
ent from the Constitution itself, for
it provides 6 that "no person except a
natural-born citizen, or a citizen of
the United States at the time of the
adoption of the Constitution, shall be
eligible to the office of President,"
' and that Congress shall have power
"to establish a uniform rule of natu-
ralization." Thus new citizens may be
born or they may be created by natu-
ralization.
6 Article 2, 1.
7 Article 1, 8.
The Constitution does not, in
words, say who shall be natural-born
citizens. Resort must be had else-
where to ascertain [***10] that. At
common-law, with the nomenclature of
which the framers of the
Constitution
were familiar, it was never doubted
that all children born in a country of
parents who were its citizens became
themselves, upon their birth, citizens
also. These were natives, or natural-
born citizens, as distinguished from
aliens or foreigners. Some authori-
ties go further and include as citi-
zens children born within the juris
-
diction without reference to the citi-
zenship of their [*168] parents. As
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18 -1
4 U.S. LEXIS 1354, ***; 21 Wall.
162
to this class there have been doubts,
but never as to the first. For the
purposes of this case i: is not neces-
sary to solve these doubts. It is
sufficient for everything we have now
to consider that all children born of
citizen parents within the jurisdic-
tion are themselves citizens. The
words "all children" ae certainly as
comprehensive, when used in this con-
nection, as "all persor: s," and if fe-
males are included in the last they
must be in the first. That they are
included in the last is not denied.
In fact the whole argument of the
plaintiffs proceeds upon that idea.
Under the power to adopt a uniform
system of naturalization Congress, as
early as 1790, provided "that any
alien, being a [***11] free white
person," might be admitted as a citi-
zen of the United States, and that the
children of such persons so natural-
ized, dwelling within the United
States, being under twenty-one years
of age at the time of such naturaliza-
tion, should also be considered citi-
zens of the United States, and that
the children of citizens of the United
States that might be horn beyond the
sea, or out of the limits of the
United States, should be considered as
natural-born citizens. ' These provi-
sions thus enacted have, in substance,
been retained in all the naturaliza-
tion laws adopted since. In 1855,
however, the last prov _sion was some-
what extended, and all persons there-
tofore born or thereafter to be born
out of the limits of the jurisdiction
of the United States, whose fathers
were, or should be at the time of
their birth, citizens of the United
States, were declared to be citizens
also. '
8 1 Stat. at Large, 103.
9 10 Id. 604.
As early as 1804 it was enacted by
Congress that when any alien who had
declared his intention to become a
citizen in the manner provided by law
died before he was aczually natural-
ized, his widow and children should be
considered as citizens of the United
[***12]
States, and entitled to all
rights and privileges as such upon
taking the necessary oath; " and in
1855 it was further provided that any
woman who might lawfully be natural-
ized under the existing laws, married,
or [*169] who should be married to a
citizen of the United States, should
be deemed and taken to be a citizen. "
10 2 Id. 293.
11 10 Stat. at Large, 604.
From this it is apparent that from
the commencement of the legislation
upon this subject alien women and
alien minors could be made citizens by
naturalization, and we think it will
not be contended that this would have
been done if it had not been supposed
that native women and native minors
were already citizens by birth.
But if more is necessary to show
that women have always been considered
as citizens the same as men, abundant
proof is to be found in the legisla-
tive and judicial history of the
[**629] country. Thus, by the Con-
stitution, the judicial power of the
United States is made to extend to
controversies between citizens of dif-
ferent States. Under this it has been
uniformly held that the citizenship
necessary to give the courts of the
United States jurisdiction of a cause
must be affirmatively [***13] shown
on the record. Its existence as a
fact may be put in issue and tried.
If found not to exist the case must be
dismissed. Notwithstanding this the
records of the courts are full of
cases in which the jurisdiction de-
pends upon the citizenship of women,
and not one can be found, we think, in
which objection was made on that ac-
count. Certainly none can be found in
which it has been held that women
could not sue or be sued in the courts
of the United States. Again, at the
time of the adoption of the Constitu
-
tion, in many of the States (and in
some probably now) aliens could not
inherit or transmit inheritance.
There are a multitude of cases to
be
found in which the question has been
presented whether a woman was or was
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Page 6
1874 U.S. LEXIS 1354, ***; 21 Wall. 162
not an alien, and as such capable or
incapable of inheritance, but in no
one has it been insisted that she was
not a citizen because she was a woman.
On the contrary, her right to citizen-
ship has been in all cases assumed.
The only question has been whether, in
the particular case urder considera-
tion, she had availed herself of the
right.
In the legislative department of
the government similar [*170] proof
will be found. Thus, in the pre-
emption laws, [***14:
12
a widow,
"being a citizen off the United
States," is allowed to make settlement
on the public lands and purchase upon
the terms specified, and women, "being
citizens of the United States," are
permitted to avail themselves of the
benefit of the homestead law. 13
12 5 Stat. at Large, 455, 10.
13 12 Id. 392.
Other proof of like character might
be found, but certainly more cannot be
necessary to establish the fact that
sex has never been made one of the
elements of citizenship in the United
States. In this respect men have
never had an advantage over women.
The same laws precisely apply to both.
The fourteenth amendment did not af-
fect the citizenship of women any more
than it did of men. In this particu-
lar, therefore, the riglts of Mrs. Mi-
nor do not depend upon the amendment.
She has always been a citizen from her
birth, and entitled to all the privi-
leges and immunities of citizenship.
The amendment prohibited the State, of
which she is a citizen, from abridging
any of her privileges and immunities
as a citizen of the United States; but
it did not confer citizenship on her.
That she had before its adoption.
If the right of suffrage is one of
the necessary [***15] privileges of a
citizen of the United States, then the
constitution and laws of Missouri con-
fining it to men are in violation of
the Constitution of the United States,
as amended, and consequently void.
The direct question is, therefore,
presented whether all citizens are
necessarily voters.
The Constitution does not define
the privileges and immunities of citi-
zens. For that definition we must
look elsewhere. In this case we need
not determine what they are, but only
whether suffrage is necessarily one of
them.
It certainly is nowhere made so in
express terms. The United States has
no voters in the States of its own
creation. The elective officers of
the United States are all elected di-
rectly or indirectly by State voters.
The members of the House of Represen-
tatives are to be chosen by the people
of [*171] the States, and the elec-
tors in each State must have the
qualifications requisite for electors
of the most numerous branch of the
State legislature. 14 Senators are to
be chosen by the legislatures of the
States, and necessarily the members of
the legislature required to make the
choice are elected by the voters of
the State. " Each State must appoint
in such [***16] manner, as the legis-
lature thereof may direct, the elec-
tors to elect the President and Vice-
President. " The times, places, and
manner of holding elections for Sena-
tors and Representatives are to be
prescribed in each State by the legis-
lature thereof; but Congress may at
any time, by law, make or alter such
regulations, except as to the place of
choosing Senators. ' It is not neces-
sary to inquire whether this power of
supervision thus given to Congress is
sufficient to authorize any interfer-
ence with the State laws prescribing
the qualifications of voters, for no
such interference has ever been at-
tempted. The power of the State in
this particular is certainly supreme
until Congress acts.
14
Constitution, Article 1,
2.
15
Ib. Article 1, 3.
16
Ib. Article 2, 2.
17 Ib. Article 1, 4.
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1874 U.S. LEXIS 1354, ***; 21 Wall. 162
The amendment did Lot add to the
privileges and immunit_es of a citi-
zen. It simply furrL.shed an addi-
tional guaranty for the protection of
such as he already had. No new voters
were necessarily made by it. Indi-
rectly it may have had that effect,
because it may have increased the num-
ber of citizens entitled to suffrage
under the constitution and laws of the
States, but [***17] it operates for
this purpose, if at all, through the
States and the State laws, and not di-
rectly upon the citizen.
It is clear, therefore, we think,
that the Constitution has not added
the right of suffrage to the privi-
leges and immunities of citizenship as
they existed at the time it was
adopted. This makes it proper to in-
quire whether suffrage was coextensive
with the citizenship of the States at
the time of its adoption. If it was,
then it may with force be argued that
suffrage was one of the rights which
belonged to citizenship, and in the
enjoyment of which eve/y citizen must
be protected. [*172] But if it was
not, the contrary may with propriety
be assumed.
When the Federal Constitution was
adopted, all the States, with the ex-
ception of Rhode Islan6 and Connecti-
cut, had constitutions of their own.
These two continued to act under their
charters from the Crown. Upon an ex-
amination of those constitutions we
find that in no State were all citi-
zens permitted to vote. Each State
determined for itself 1,,ho should have
that power. Thus, in New Hampshire,
"every male inhabitant of each town
and parish with town Erivileges, and
places unincorporated in the State, of
twentyone [***18] years of age and
upwards, excepting paupers and persons
excused from paying taxes at their own
request," were its voters; in Massa-
chusetts "every male inhabitant of
twenty-one years of age and upwards,
having a freehold estE..te within the
commonwealth of the annual income of
three pounds, or any estate of the
value of sixty pounds;" in Rhode Is-
land "such [**630] as are admitted
free of the company and society" of
the colony; in Connecticut such per-
sons as had "maturity in years, quiet
and peaceable behavior, a civil con-
versation, and forty shillings free-
hold or forty pounds personal estate,"
if so certified by the selectmen; in
New York "every male inhabitant of
full age who shall have personally re-
sided within one of the counties of
the State for six months immediately
preceding the day of election . . . if
during the time aforesaid he shall
have been a freeholder, possessing a
freehold of the'value of twenty pounds
within the county, or have rented a
tenement therein of the yearly value
of forty shillings, and been rated and
actually paid taxes to the State;" in
New Jersey "all inhabitants . . . of
full age who are worth fifty pounds,
proclamation-money, clear estate in
the same, [***19] and have resided
in the county in which they claim a
vote for twelve months immediately
preceding the election;" in Pennsyl-
vania "every freeman of the age of
twenty-one years, having resided in
the State two years next before the
election, and within that time paid a
State or county tax which shall have
been assessed at least six months be-
fore the election;" in [*173] Dela-
ware and Virginia "as exercised by law
at present;" in Maryland "all freemen
above twenty-one years of age having a
freehold of fifty acres of land in the
county in which they offer to vote and
residing therein, and all freemen hav-
ing property in the State above the
value of thirty pounds current money,
and having resided in the county in
which they offer to vote one whole
year next preceding the election;" in
North Carolina, for senators, "all
freemen of the age of twenty-one years
who have been inhabitants of any one
county within the State twelve months
immediately preceding the day of elec-
tion, and possessed of a freehold
within the same county of fifty acres
of land for six months next before and
at the day of election," and for mem-
bers of the house of commons "all
freemen of the age of twenty- one years
[***20] who have been inhabitants in
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18"4 U.S. LEXIS 1354, ***; 21 Wall. 162
any one county within the State
twelve
months immediately preceding the day
of any election, and :than have paid
public taxes;" in South Carolina
"every free white man of the age of
twenty-one years, being a citizen of
the State and having:resided therein
two years previous to the day of elec-
tion, and who hath a freehold of fifty
acres of land, or a town lot of which
he hath been legally Eeized and pos-
sessed at least six months before such
election, or (not having such freehold
or town lot), hath been a resident
within the election di s trict in which
he offers to give his cote six months
before said election, and hath paid a
tax the preceding year of three shil-
lings sterling towards the support of
the government;" and in Georgia such
"citizens and inhabitants of the State
as shall have attained to the age of
twenty-one years, and ,shall have paid
tax for the year next preceding the
election, and shall have resided six
months within the counti."
In this condition of the law in re-
spect to suffrage in the several
States it cannot for a moment be
doubted that if it had been intended
to make all citizens of the United
States voters, the framers of the Con-
stitution [***21] would not have left
it to implication. So important a
change in the condition of citizenship
as it actually existec, if intended,
would have been expressLy declared.
[*174] But if further proof is
necessary to show that no such change
was intended, it can easily be found
both in and out of tha Constitution.
By Article 4, section 2, it is pro-
vided that "the citizens of each State
shall be entitled to all the privi-
leges and immunities of citizens in
the several States." If suffrage is
necessarily a part of citizenship,
then the citizens of each State must
be entitled to vote in the several
States precisely as their citizens
are. This is more than asserting that
they may change their residence and
become citizens of the State and thus
be voters. It goes to the extent of
insisting that while :etaining their
original citizenship they may vote in
any State. This, we think, has never
been claimed. And again, by the very
terms of the amendment we have been
considering (the fourteenth), "Repre-
sentatives shall be apportioned among
the several States according to their
respective numbers, counting the whole
number of persons in each State, ex-
cluding Indians not taxed. But when
the [***22] right to vote at any
election for the choice of electors
for President and Vice-President of
the United States, representatives in
Congress, the executive and judicial
officers of a State, or the members of
the legislature thereof, is denied to
any of the male inhabitants of such
State, being twenty-one years of age
and citizens of the United States, or
in any way abridged, except for par-
ticipation in the rebellion, or other
crimes, the basis of representation
therein shall be reduced in the pro-
portion which the number of such male
citizens shall bear to the whole num-
ber of male citizens twenty-one years
of age in such State." Why this, if it
was not in the power of the legisla-
ture to deny the right of suffrage to
some male inhabitants? And if suffrage
was necessarily one of the absolute
rights of citizenship, why confine the
operation of the limitation to male
inhabitants? Women and children
are,
as we have seen, "persons." They are
counted in the enumeration upon which
the apportionment is to be made, but
if they were necessarily voters be
-
cause of their citizenship unless
clearly excluded, why inflict the pen-
alty for the exclusion of males alone?
Clearly, no such form of words [***23]
would have been [*175] selected to
express the idea here indicated if
suffrage was the absolute right of all
citizens.
And still again, after the adoption
of the fourteenth amendment,
it was
deemed necessary to adopt a fifteenth,
as follows: "The right of citizens of
the United States to vote shall not be
denied or abridged by the
United
States, or by any State, on
account of
race, color, or previous condition of
servitude." The
fourteenth amendment
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88 U.S. 162, *; 22 L. Ed. 627, **;
Page 9
18"4 U.S. LEXIS 1354, ***; 21 Wall. 162
had already provided that no State
should make or enforce any law which
should abridge the privileges or immu-
nities of citizens of the United
States. If suffrage wes one of these
privileges or immunffies, why amend
the Constitution to prevent its being
denied on account of race, &c.? Noth-
ing is more evident than that the
greater must include the less, and if
all were already protected why go
through with the form of amending the
Constitution to protect a part?
It is true that the United States
guarantees to every State a republican
form of government. ' It is also true
that [**631] no Stte can pass a
bill of attainder, " and that no per-
son can be deprived of life, liberty,
or property without due process of
law. " [***24] All these several pro-
visions of the Constii:ution must be
construed in connection with the other
parts of the instrument, and in the
light of the surroLnding circum-
stances.
18 Constitution. Article 4, 5
4.
19 Ib. Article 1, 10.
20 Ib. Amendment 5.
The guaranty is of a republican
form of government. No particular
government is designated as republi-
can, neither is the exact form to be
guaranteed, in any manner especially
designated. Here, as in other parts
of the instrument, we a : :e compelled to
resort elsewhere to ascertain what was
intended.
The guaranty necessarily implies a
duty on the part of the States them-
selves to provide such a government.
All the States had gcvernments when
the Constitution was adopted. In all
the people participated to some ex-
tent, through their representatives
elected in the manner specially pro-
vided. [*176] These governments the
Constitution did not change. They
were accepted precisely as they were,
and it is, therefore, to be presumed
that they were such as it was the duty
of the States to provide. Thus we
have unmistakable evidence of what was
republican in form, within the meaning
of that term as employed in the Con-
stitution.
[***25] As has been seen, all the
citizens of the States were not in-
vested with the right of suffrage. In
all, save perhaps New Jersey, this
right was only bestowed upon men and
not upon all of them. Under these
circumstances it is certainly now too
late to contend that a government is
not republican, within the meaning of
this guaranty in the Constitution, be-
cause women are not made voters.
The same may be said of the other
provisions just quoted.Women were ex-
cluded from suffrage in nearly all the
States by the express provision of
their constitutions and laws. If that
had been equivalent to a bill of at-
tainder, certainly its abrogation
would not have been left to implica-
tion. Nothing less than express lan-
guage would have been employed to ef-
fect so radical a change. So also of
the amendment which declares that no
person shall be deprived of life, lib-
erty, or property without due process
of law, adopted as it was as early as
1791. If suffrage was intended to be
included within its obligations, lan-
guage better adapted to express that
intent would most certainly have been
employed. The right of suffrage, when
granted, will be protected. He who
has it can only be deprived of it by
[***26] due process of law, but in
order to claim protection he must
first show that he has the right.
But we have already sufficiently
considered the proof found upon the
inside of the Constitution. That upon
the outside is equally effective.
The Constitution was submitted to
the States for adoption in 1787, and
was ratified by nine States in 1788,
and finally by the thirteen original
States in 1790. Vermont was the first
new State admitted to the Union, and
it came in under a constitution which
conferred the right of suffrage only
upon men of the full age of twenty-one
years, having resided [*177] in the
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Page 10
88 U.S. 162, *; 22 L. Ed. 627, **;
1874 U.S. LEXIS 1354, ***; 21 Wall. 162
State for the space of one whole year
next before the election, and who were
of quiet and peaceable behavior. This
was in 1791. The next year, 1792,
Kentucky followed with a constitution
confining the right of suffrage to
free male citizens of the age of
twenty-one years who had resided in
the State two years or in the county
in which they offered to vote one year
next before the election. Then fol-
lowed Tennessee, in 1796, with voters
of freemen of the age of twenty-one
years and upwards, possessing a free-
hold in the county wherein they may
vote, and being inhabitants of the
[***27] State or freemen being in-
habitants of any one county in the
State six months immediately preceding
the day of election. Bat we need not
particularize further. No new State
has ever been admitted to the Union
which has conferred the right of suf-
frage upon women, and this has never
been considered a valid objection to
her admission. On the contrary, as is
claimed in the argument, the right of
suffrage was withdrawn from women as
early as 1807 in the State of New Jer-
sey, without any attempt to obtain the
interference of the United States to
prevent it. Since th'm the govern-
ments of the insurgent States have
been reorganized under a requirement
that before their representatives
could be admitted to seats in Congress
they must have adopted new constitu-
tions, republican in fcrm. In no one
of these constitutions was suffrage
conferred upon women, and yet the
States have all been restored to their
original position as States in the Un-
ion.
Besides this, citizenship has not
in all cases been mac.e a condition
precedent to the enjoyment of the
right of suffrage. Thus, in Missouri,
persons of foreign birth, who have de-
clared their intention to become citi-
zens of the United States, may under
[***28] certain circumstances vote.
The same provision is to be found in
the constitutions of Alabama, Arkan-
sas, Florida, Georgia, Indiana, Kan-
sas, Minnesota, and Texas.
Certainly, if the courts can con-
sider any question settled, this is
one. For nearly ninety years the peo-
ple have acted upon the idea that the
Constitution, when it conferred citi-
zenship, did not necessarily confer
the right of suffrage. If [*178]
uniform practice long continued can
settle the construction of so impor-
tant an instrument as the Constitution
of the United States confessedly is,
most certainly it has been done here.
Our province is to decide what the law
is, not to declare what it should be.
We have given this case the careful
consideration its importance demands.
If the law is wrong, it ought to be
changed; but the power for that is not
with us. The arguments addressed to
us bearing upon such a view of the
subject may perhaps be sufficient to
induce those having the power, to make
the alteration, but they ought not to
be permitted to influence our judgment
in determining the present rights of
the parties now litigating before us.
No argument as to woman's need of suf-
frage can be considered. We [***29]
can only act upon her rights as they
exist. It is not for us to look at
the hardship of withholding. Our duty
is at an end if we find it is within
the power of a State to withhold.
Being unanimously of the opinion
that the Constitution of the United
States does not confer the right of
suffrage upon any one, and that the
constitutions and laws of the several
States which commit that important
trust to men alone are not necessarily
void, we
AFFIRM THE JUDGMENT.
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STATE OF GEORGIA

: Docket Number: OSAH-SECSTATE-CE-
: 12 15136-60-MALIHI
Counsel for Plaint iffs: Orly Tait z
Counsel for Defendant : Michael Jablonski
: 12 15137-60-MALIHI
: Counsel for Plaint iff: Van R. Irion
Docket Number: OSAH-SECSTATE-CE-
12 162 18-60-MALIHI
: Counsel for Plaint iff: J. Mark Hat field
: 12 1682 3-60-MALIHI
DAVID FARRAR,
LEAH LAX,
CODY JUDY,
THOMAS MALAREN,
LAURIE ROTH,
Plaint iffs,
v.
BARACK OBAMA,
Defendant .
DAVID P. WELDEN,
Plaint iff,
v.
BARACK OBAMA,
Defendant .
CARL SWENSSON,
Plaint iff,
v.
BARACK OBAMA,
Defendant .
KEVIN RICHARD POWELL,
Plaint iff,
v.
:
Counsel for Plaint iff: J. Mark Hat field
BARACK OBAMA,
Defendant . F
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ORDER
On December 2 0, 2 011, t he Court consolidat ed t he above-st yled act ions. Plaint iff, David P.
Welden, has moved for aseparat e hearing.
The Court finds good cause t o grant t he Plaint iff's mot ion. Plaint iff Welden's case will be heard
at 9: 00 AM, January 2 6, 2 012 . All ot her cases will be heard immediat ely t hereaft er.
SO ORDERED, t his t he 2 7t h day of December, 2 011.
MICHAEL M. MALIHI, Judge
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2011-12-27 Swensson Proposed Pretrial Order

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OFFICE OF STATE ADMINISTRATIVE HEARINGS

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