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Welden et al v Obama - U.S. Supreme Court Petition

Welden et al v Obama - U.S. Supreme Court Petition

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04 Jul 2012: Welden et al v Obama - U.S. Supreme Court Petition.

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04 Jul 2012: Welden et al v Obama - U.S. Supreme Court Petition.

For more information about Obama's eligibility issues, forged documents, criminal activities, and socialist Cloward-Piven based plans to bankrupt America see:
http://www.protectourliberty.org
http://cdrkerchner.wordpress.com
http://puzo1.blogspot.com

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QUESTIONS PRESENTED FOR REVIEW Question #1: Does the right to associate force states to accept any candidate from political parties for presentation on state primary ballots when such a candidate does not meet the minimum legal qualifications for the office sought, thereby negating state election laws and state control of elections?

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Question #2: Are all individuals born on U.S. soil Article II “natural born citizens,” regardless of the citizenship of their parents?

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ii PARTIES TO THE PROCEEDING Pursuant to Rule 14.2(b), the following list identifies all of the parties appearing here and before the Georgia Supreme Court, Georgia Superior Court, and Georgia Office of State Administrative Hearings. The Georgia Office of State Administrative Hearings consolidated four cases filed with that office by eight individuals. The Georgia Superior Court and Georgia Supreme Court thereafter treated the consolidated case as one action for purposes of appeal.

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1

Hereinafter this Petition will refer to the respondent, President Obama, also known as Barack Hussein Obama Jr., Barack Obama II, and Barry Soetoro, as “candidate Obama.” This reference is not intended to be disrespectful to the office of the President or to the individual Barack Obama. It is used only to identify the individual, separate from the office, to note that candidate Obama has not yet been elected to the term of office at issue in the instant litigation, and to simplify communication for purposes of this Petition.

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The respondent here, and appellee below for all cases, is Barack Obama. Mr. Obama was and is named in his private capacity as a candidate for the Office of President of the United States of America.1

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The petitioners here and appellants below are David Welden, Carl Swensson, and Kevin Richard Powell, all three of whom are individuals residing in Georgia. The other appellants below, David Farrar, Leah Lax, Cody Judy, Thomas Malaren, and Laurie Roth are not parties to the instant petition.

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iii

TABLE OF CONTENTS Questions Presented Parties to the Proceedings Table of Contents Table of Authorities Opinions Below Jurisdiction Page i ii

Statutory and Constitutional Provisions Involved

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I. Question I: Does the Right to Associate Force States to Accept Any Candidate from Political Parties for Presentation on State Primary Ballots When Such a Candidate Does Not Meet Minimum Legal Qualifications for the Office Sought, Thereby Negating State Election Laws and State Control of Elections?

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Reasons for Granting the Petition

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Statement of the Case

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2 2 2 4 6

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iii vii 1

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TABLE OF CONTENTS (cont.) II. Question II: Are All Individuals Born on U.S. Soil Article II-“Natural Born Citizens,” Regardless of the Citizenship of Their Parents? A. The Minor Court Defined Natural Born Citizen in Order to Reach its Holding Page 11

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D. Georgia’s Ruling Violates the Minor Court’s Holding that the 14th Amendment “Did Not Add to the Privileges and Immunities of a Citizen” E. This Court’s Wong Kim Ark Holding Does not Conflict with Minor and Does Not Support the Georgia Ruling

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C. The Minor Court’s Discussion of Other Categories of Citizen Confirms that The Court’s Definition of Natural Born Citizen is Part of its Holding

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B. Precedential Status of the Minor Court’s Definition of Natural Born Citizen

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14 16 17 18

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13

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v TABLE OF CONTENTS (cont.) F. Rules of Construction Support Petitioners’ Harmonized Readings of Minor and Wong Kim Ark G. Indiana State Court Lacked Jurisdiction to Reach the Article II Issue Conclusion Appendix Page 20

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Part C Georgia Secretary of State, Final Decision Adopting the Decision of the Georgia Office of State Administrative Hearings, February 7, 2012

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Part B Superior Court of Fulton County, State of Georgia, Order Granting Defendant Obama’s Motion to Dismiss Appeal, March 2, 2012

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Part A Georgia Supreme Court Orders Denying Review, April 4, 2012

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1a 1a 4a 10a

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21 25

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vi TABLE OF CONTENTS (cont.) Part D Georgia Office of State Administrative Hearings, Ruling All Persons on U.S. Soil to be Article II Natural Born Citizens, February 3, 2012 Part E Constitutional Provisions Involved – Article II §1 Clause 5; Amendments I & XIV Part F Statutory Provisions Involved – O.C.G.A. §§21-2-15 and 21-2-5 Page 13a

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25a 26a

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vii TABLE OF AUTHORITIES Cases Ankeny v. Governor, 916 N.E.2d 678 (Ind. Ct. App. 2009) Belluso v. Poythress, 485 F.Supp. 904 (N.D. Ga. 1980) Democratic Party of the U.S. v. Wisconsin, 450 U.S. 107 (1981) Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992) Page 22-24 7, 8

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Morton v. Mancari, 417 U.S. 535 (1974) Minor v. Happersett, 88 U.S. 162 (1875) United States v. Borden Co., 308 U.S. 188 (1939)

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Marbury v. Madison, 5 U.S. 137 (1805)

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Lyng v. N.W. Indian Cemetery Protective Assn., 485 U.S.439 (1988)

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Gen. Motors Accpt. Corp. v. United States, 286 U.S. 49 (1932)

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21 23 20, 22 21 11-16 21

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7, 8 7, 8

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viii

TABLE OF AUTHORITIES (cont.) Cases Page United States v. Tynen, 21 78 U.S. 88 (1870)

Wood v. United States, 41 U.S. 342 (1842) Constitution Article II §1 Amendment I Amendment XIV Statutes 28 U.S.C. 1257

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O.C.G.A. §21-2-5

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O.C.G.A. §21-2-15

Dictionary Black’s Law Dictionary, Bryan A Garner ed., 7th Ed., West 1999

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Passim 10 17, 20-22 2 2, 6, 9, 10 2, 6, 9 16, 19

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United States v. Wong Kim Ark, 169 U.S. 649 (1898)

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1 PETITION FOR A WRIT OF CERTIORARI The petitioners respectfully petition for a writ of certiorari to review the opinion and judgment of the Supreme Court for the State of Georgia.

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The Order of the Secretary of State, dated February 7, 2012, adopting the Decision of the Georgia Office of State Administrative Hearings, dated February 3, 2012, granting defendantrespondents’ motion for summary judgment, is reproduced at App. 8a-10a. The Decision of the Georgia Office of State Administrative Hearings, dated February 3, 2012, granting defendant-respondents’ motion for summary judgment, is reproduced at App. 11a-22a.

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The order of the Superior Court for the State of Georgia in the County of Fulton, dated March 2, 2012, dismissing petitioners’ appeal from the judgment of the Georgia Secretary of State, is reproduced at App. 2a-7a.

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The orders of the Supreme Court for the State of Georgia, dated April 4, 2012, affirming the opinion of the Georgia Superior Court for the State of Georgia in the County of Fulton are reproduced at App. 1a.

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OPINIONS BELOW

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2 JURISDICTION The judgment of the Supreme Court of the State of Georgia was entered on April 4, 2012. This petition is timely filed under 28 U.S.C. §1257 because it is being filed within 90 days of the entry of the judgment of the Supreme Court of Georgia. This Court has jurisdiction under 28 U.S.C. §1257 because the judgment of the Supreme Court of Georgia interpreted the United States Constitution to invalidate a statute of the state of Georgia, and by implication similar statutes in other states, and because the Georgia Supreme Court’s judgment negated rights of Georgia citizens specially set up under the United States Constitution. STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED The relevant constitutional provisions involved are Article II §1, and the First and Fourteenth Amendments, which are reproduced at App. 23a. The relevant statutory provisions involved are O.C.G.A. §§21-2-15 and 21-2-5, which are reproduced at App. 24a-27a.

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This is the first case to reach this Court that substantively addresses the definition of “natural born citizen” as that term is used in Article II of the U.S. Constitution. The Georgia Administrative Court

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STATEMENT OF THE CASE

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3 and Secretary of State properly denied all attempts to dismiss the instant case on procedural grounds, leaving a clean ruling on the legal question. The petitioners’ challenge in Georgia State Court was based upon an uncontested fact: that the respondent’s father was not a U.S. citizen; and upon the legal conclusion that a person must have two U.S. citizen parents to be a natural born citizen under Article II of the U.S. Constitution. The Georgia Office of State Administrative Hearings and Secretary of State ruled that any person born on U.S. soil is a “natural born citizen” as that term is use in Article II of the U.S. Constitution, regardless of the citizenship of the person’s parents.

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The Georgia Superior Court dismissed an appeal by erroneously deciding that the Georgia statute under which the petitioners challenged candidate Obama’s eligibility, violated the Democratic Party’s right to freedom of association. The Superior Court ruled that the Georgia statute was, therefore, inapplicable to Presidential primary elections. This argument had been raised and rejected by the Georgia Office of Administrative Hearings and the Georgia Secretary of State. The Georgia statute at issue explicitly states that it is applicable to “any general or special primary to nominate candidates” for state, local, and federal office. This is why the Georgia Administrative Court and Secretary of State applied the statute to the state’s Presidential primary

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4 election. The Superior Court’s ruling, therefore, invalidated a significant portion of Georgia’s law on grounds that it violates the U.S. Constitution. The Georgia Supreme Court refused review, adopting the ruling of the Georgia Superior Court. Together these rulings leave this Court with an opportunity to confirm state authority over Presidential primary elections, and to confirm its definition of natural born citizen under Article II of the Constitution. REASONS FOR GRANTING THE PETITION

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Since 2007 hundreds of lawsuits have been litigated challenging candidate Obama’s constitutional eligibility to hold office. As of the filing of this petition current Presidential candidate Mitt Romney may name Marco Rubio as a Vice Presidential running mate. Like candidate Obama, at least one of Mr. Rubio’s parents was not a U.S. citizen when Mr. Rubio was born. Regardless of whether Mr. Rubio turns out to be the next VP candidate, this issue is practically certain to arise again. When it does it will certainly result in hundreds more lawsuits, filed in courts across the country. Regardless of which end of the political spectrum the next candidate with a non-U.S. citizen parents may be on, his or her political opponents are virtually certain to raise this issue again.

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This Court’s ruling in the instant case could decisively confirm the definition of “natural born

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5 citizen” as that term is used in Article II. Such a decision would clear hundreds of cases from court dockets over the next few years. In addition, the Georgia Court’s ruling turns freedom to associate precedent on its head, expanding a political party’s legitimate right to exclude certain individuals into a party’s absolute authority to dictate to states regarding who will appear on state election ballots. This ruling negates a significant portion of Georgia’s election code. If applied to other states this precedent would represent a revolutionary shift in power between states and political parties, negating state authority over elections as established in Article II, Section 1 of the U.S. Constitution.

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The Georgia rulings challenged here dangerously expand power for political parties, deny constitutional state authority over elections, misapply this Court’s freedom to associate precedent, ignore this Court’s precedent in favor of dicta, ignore venerable rules of constitutional construction, ignore any difference between the legally distinguishable terms “citizen” and “natural born citizen,” and erroneously established that all persons born on U.S. soil are natural born citizens without regard to the citizenship of their parents. Each one of these errors will be compounded by courts across the country if they are not corrected by this Court.

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6 I. Question 1: Does the Right to Associate Force States to Accept Any Candidate from Political Parties for Presentation on State Primary Ballots When Such a Candidate Does not Meet Minimum Legal Qualifications for the Office Sought, Thereby Negating State Election Laws and State Control of Elections?

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The fact that the Georgia Legislature intended this section to apply to Presidential Primaries is made explicit by O.C.G.A. §21-2-15: “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

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“Every candidate for federal and state office…shall meet the constitutional and statutory qualifications for holding the office being sought.” O.C.G.A. §21-2-5.

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Georgia’s legislature has determined that it is in the best interest of the citizens of Georgia to screen candidates for minimum legal qualifications prior to placement on its primary ballots:

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Article II, section 1 of the United States Constitution states: “Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors” to the electoral college for election of the President of the United States. U.S. Const. Art. II §1.

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7 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.”

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The Georgia Court’s ruling is also unnecessary because Article II and the First Amendment are in harmony. State control over the election processes simply does not violate the right of political parties to determine who will and will not be accepted as members of those organizations. As a result, no precedent interpreting the right to associate supports the Georgia Court’s ruling.

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The Georgia Supreme Court’s conclusion is not supported by any precedent, invalidates Georgia election code, and would imply that election codes from several other states are similarly unconstitutional. Leaving the Georgia Courts’ ruling in place would threaten to negate all states’ control over Presidential primary elections, leaving political parties with absolute power over state Presidential primary elections. Such a result runs contrary to Article II, section 1. See U.S. Const. Art. II §1 (“Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors…”)(emphasis added).

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In the instant case the Georgia Superior and Supreme Courts disagreed with the Georgia Administrative Court and Secretary of State, the State’s high Court holding that application of §21-2-5 to Presidential primaries would violate a political parties’ right to freely associate.

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Several right-to-associate cases did involve candidates’ exclusion from ballots. See Democratic Party of U.S. v. Wisconsin, 450 U.S. 107 (1981); Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992); Belluso v. Poythress, 485 F.Supp. 904 (N.D.Ga. 1980). However, all of these cases are exactly opposite to the situation presented in the Georgia litigation. All of the above precedent involved political parties excluding a candidate because the party did not want to be associated with the candidate. In every case cited, the candidate sued the party or state for inclusion on the ballot after being excluded. The courts upheld the parties’ right to exclude individuals from membership in their parties. This does not, however, create a right for the party to dictate to states.

While right-to-associate precedent has negated some states’ restrictive laws for recognizing political parties, none of these precedent have forced states to accept all candidates for appearance on ballots without any screening of such candidates.

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The right to associate has been interpreted to allow private groups to determine who will and will not be members of the group. Democratic Party of U.S. v. Wisconsin, 450 U.S. 107 (1981); Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992); Belluso v. Poythress, 485 F.Supp. 904 (N.D.Ga. 1980). However, no court has extended this right beyond the confines of the private organization. A party can determine who it will include as members. That party can also determine which of those members will be its candidates. However, nothing in the Constitution or precedent forces a State to accept a party’s selection of candidates for appearance on a ballot.2

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9 There are no cases prior to the instant litigation where a political party’s decision to support a candidate created a Constitutional right to force a State to accept that decision. Such precedent would place the political parties’ authority above that of the state. This is why no such precedent exists. It is true that some states lack election codes authorizing a state official to screen candidate selections received from political parties. In these states political parties have essentially unfettered authority to determine which candidates appear on ballots. However, these instances represent decisions of the states’ legislatures to not screen candidates. It is the states’ right to decide how to administer its elections. See U.S. Const. Art. II §1. The fact that some states have decided to not protect their citizens from unqualified candidates does not mean that other states do not have the right to screen candidates. It simply means that some states have left the screening to the political parties.

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Right-to-associate precedent simply does not prevent Georgia’s Legislature from protecting its citizens in this manner because the right to associate easily coexists with the State’s right to determine the manner of choosing its Presidential electors. Georgia code does not interfere with the autonomy of any political party’s internal decision making because it does not prohibit the parties from submitting any name to the Georgia Secretary of State for inclusion in the Presidential primary. The political parties are free to submit Saddam Hussein or Mickey Mouse as their next Presidential candidate. However, Georgia

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10 is not required to accept such submissions and waste taxpayer money on ballots for such candidates. After the Georgia Court’s ruling, the political parties could choose to list former Presidents George Bush and Bill Clinton as candidates for the Presidential primary, despite the fact that both President Bush and President Clinton are disqualified to run for that office again by the 22 nd Amendment to the U.S. Constitution. Upon such listing the State of Georgia would have no choice but to place these candidates’ names on its ballots. This result demonstrates the error of the Georgia Court’s holding. Contrary to the Georgia Court’s holding, the political parties simply do not have unfettered dictatorial authority over the state of Georgia. Georgia code does not prevent the political parties from submitting any name. Instead the code simply determines what the State does with a party’s list of candidates after the party has forwarded its list to the State. See O.C.G.A. §21-2 et seq. This code does nothing to prevent any political party from excluding, or including, any person they choose to exclude or include. Nor does it prevent a party from choosing candidates to submit, in the party’s “sole discretion.” Georgia’s code simply exercises the State’s right to administer elections in a manner that best serves the citizens of the State. In the instant case Georgia’s Election code does nothing to infringe on the Democratic Party of Georgia’s right of association because the Party can and did accept the respondent into its organization. The Party can and did include the respondent in the

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11 Party’s list of candidates. The Party’s rights, however, end there. Its rights cannot force the State to place the respondent’s name on a ballot after the State determines that the respondent is obviously not qualified “to hold the office sought.” §21-2-5. The rights of the Party and of the State simply do not conflict. The Georgia Court’s holding logically requires a conclusion that no state can preclude any candidate from any primary ballot for any reason without violating a political party’s right to freely associate. Since many candidates have been disqualified from primary ballots for lack of qualification to hold the office sought, we can safely conclude that the Georgia Court’s holding is a gross misapplication of the right to associate. In order to protect the harmony between Article II and the First Amendment, and to protect the right of all states to control their elections, the petitioners respectfully request that this Court grant the instant petition. II. Question 2: Are All Individuals Born on U.S. Soil Article II “natural born citizens,” Regardless of the Citizenship of their Parents?

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The instant litigation challenged candidate Obama’s Constitutional eligibility to hold the office of President upon grounds that his father was not a U.S. citizen at the time candidate Obama was born. App.16a-17a. Petitioners cited this Court’s definition of “natural born citizen,” as that term is used in

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12 Article II of the Constitution, from the holding of Minor v. Happersett. 88 U.S. 162, 167-8 (1875). In response to this challenge the Georgia Secretary of State and Office of State Administrative Hearings reached the legal conclusion that “persons born within the borders of the United States are ‘natural born citizens’ for Article II, Section 1 purposes, regardless of the citizenship of their parents.” App. 21a.

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The Minor Court’s definition of “natural-born citizen” is binding precedent because the Court’s definition was necessary to reach its holding. 88 U.S. 162. The Minor Court’s definition of “natural-born citizen,” therefore, has not been abrogated by the dicta from Wong Kim Ark (WKA) or any other subsequent Supreme Court precedent. See 169 U.S. 649 (1898). Any rulings from other courts are simply incorrect. Unless and until this Court revisits this issue, the Minor Court’s definition is binding.

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The Georgia Secretary of State’s legal conclusion runs contrary to venerable rules of Constitutional construction. It relies heavily upon an Indiana State court that had already admitted it lacked jurisdiction to reach the Article II issue. Most importantly, it rests upon dicta that would negate this Court’s holding from Minor v. Happersett.

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13 A. The Minor Court Confirmed the Definition of Article II-Natural Born Citizen in Order to Reach its Holding In Minor v. Happersett the United States Supreme Court was presented the question: Does the 14th Amendment grant all citizens the right to vote? 88 U.S. 162. Minor, a woman living in Missouri, challenged that state’s constitutional prohibition against women voting. The Court held that women could be citizens before ratification of the 14 th Amendment, but that the 14th Amendment created no new privileges or immunities.

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It is clear that the Minor Court was referring to the term “natural born citizen,” as it appears in Article II of the Constitution because, in the paragraph preceding the definition quoted here, that Court quoted the Article II requirement that the President must be a “natural born citizen.” The Minor Court’s definition of natural born citizen is immediately followed by a statement that

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“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.” Id.

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To reach its holding the Minor Court defined the term “natural born citizen.” 88 U.S. at 167. It established that,

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14 “there have been doubts” about the broader class of people identified as “citizens.” Id. However, this statement is immediately followed by the clarification that there have “never been doubts” as to the narrower class of natural born citizens. Id. This understanding of the Minor Court’s statement is supported by its extensive discussion of the broader term “citizen” at the beginning of the Court’s opinion. Id. at 166. The Court concludes its discussion of the term “citizen” by stating, “When used in this sense it is understood as conveying the idea of membership of a nation, and nothing more.” Id. The Court, therefore, clearly established that the term “citizen” was to be understood to be very broad. With this in mind, the Minor Court’s statement is unambiguous: it established two distinct classes of people, citizens and natural born citizens; “citizen” is a broad term that is inclusive of all “natural born citizens,” and others. Id. All natural born citizens are citizens, but not all citizens are natural born citizens; as to the outer limits of the term “citizen” there are doubts; and as to the definition of “natural born citizen” there have “never been doubts”. Id. B. Precedential Status of the Minor Court’s Definition of Natural Born Citizen

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In order to reach its holding, the Minor Court first had to establish that Mrs. Minor was a citizen. It explicitly did so by determining that she was a natural born citizen: “For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the

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15 jurisdiction are themselves citizens.” Id. at 167. The definition the Court is using here is the Court’s own definition of natural-born citizen from earlier in the same paragraph. Because both of Mrs. Minor’s parents were U.S. citizens at the time she was born, and she was born in the U.S., she was a natural born citizen. Because all natural born citizens are also within the broader category “citizen,” Mrs. Minor was a citizen. This is why the Court did not need to resolve doubts about the outer limits of the term citizen. Mrs. Minor was a citizen because she was clearly within the narrower category of natural-born citizen.

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The Minor Court’s decision to establish that Mrs. Minor was a citizen because she was a natural born citizen followed the well-established doctrine of judicial restraint. Judicial restraint required the Minor Court to avoid interpreting the citizenship clause of the 14th Amendment if the circumstances presented in the case at hand did not require the Court to construe the 14th amendment’s citizenship clause in order to reach its holding. The facts presented did not require such an interpretation because the definition of natural born citizen was well-established and Mrs. Minor was a natural born citizen. So, the Court did not reach the 14th amendment’s citizenship clause. But this restraint did require the Court to conclude that Mrs. Minor was a citizen via its definition of natural-born citizen and its conclusion that all natural-born citizens are within the broader category of “citizens.” This is why it made the statement “For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider

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16 that all children born of citizen parents within the jurisdiction are themselves citizens.” Id. at 168. In other words, the Minor Court’s definition of “natural born citizen” was pivotal to reaching its holding.3 Because the Minor Court’s definition of “natural born citizen” was pivotal to reaching its holding, the Court’s definition is part of its holding and is, therefore, also precedent. See Black’s Law Dictionary 737 (Bryan A. Garner ed., 7th ed., West 1999) (“holding, n. 1. A court’s determination of a matter pivotal to its decision”); (see also Id. at 1195 defining “precedent” and quoting James Parker Hall, American Law and Procedure xlviii (1952); see also Black’s Law Dictionary at 465, distinguishing “dictum gratis”: “A court’s discussion of points or questions not raised by the record or its suggestion of rules not applicable in the case at bar.”). C. The Minor Court’s Discussion of Other Categories of Citizens Confirms that The Court’s Definition of Natural Born Citizen is Part of its Holding After establishing that Mrs. Minor was a citizen because she was a natural born citizen, the Court then discussed several other types of citizenship as general examples of its conclusion that
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Courts using judicial restraint are deciding to rely upon well-established law rather than delve into new and more debatable areas of law. The fact that the Minor Court deferred to the previously well-established definition of “natural born citizen” proves that this term was beyond debate at the time of the Minor Court’s opinion. That is why the Court states that there have never been doubts as to the definition of Article II natural born citizen.

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17 women could be citizens. However, it then returned to the specific case of Mrs. Minor, concluding: “The fourteenth amendment did not affect the citizenship of women any more than it did of men. In this particular, therefore, the rights of Mrs. Minor do not depend upon the amendment. She has always been a citizen from her birth, and entitled to all the privileges and immunities of citizenship.” Id. at 170. This discussion not only shows that the Minor Court explicitly distinguished the terms citizen and natural born citizen, it also shows that the Court determined that Minor was a citizen because she was a natural born citizen. Because citizen is a much broader term, but includes the narrower term natural born citizen, Minor was a citizen because she was a natural born citizen. D. Georgia’s Ruling Violates The Minor Court’s Holding that the 14th Amendment “Did Not Add to the Privileges and Immunities of a Citizen” The Georgia Secretary of State’s decision also runs contrary to the Minor Court’s holding that “The amendment did not add to the privileges and immunities of a citizen.” Id. at 171. The Minor Court established that if an individual did not have the right to vote before the 14th Amendment, then that citizen did not have the right to vote after the Amendment. Id. It is clear from this holding that if a person was not qualified to hold the office of President under Article II before the 14th Amendment, then he or she was not qualified to hold

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18 the office of President after the Amendment. Id. In other words, the holding of the Minor Court explicitly established that the 14th Amendment did not change the definition of natural born citizen under Article II. E. This Court’s Wong Kim Ark Holding Does not Conflict with Minor and Does Not Support the Georgia Ruling

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“[T]he single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of Chinese descent, who at the time of his birth are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the

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A review of the holding from WKA confirms this conclusion:

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The Supreme Court’s holding in Wong Kim Ark (“WKA”) did not alter or negate the definition of natural born citizen as established by the Minor Court. Compare United States v. Wong Kim Ark, 169 U.S. 649 (1898) with Minor, 88 U.S. 162. The holding of WKA answered the narrow question that was avoided by the Minor Court: namely construction of the citizenship clause of the 14th Amendment.

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19 first clause of the fourteenth amendment of the Constitution: ‘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.’ For the reasons above stated, this court is of the opinion that the question must be answered in the affirmative.” 169 U.S. at 705 (emphasis added).

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This makes sense because the WKA Court did not need to define the term natural born citizen in order to reach its holding. Had Mr. Ark been a natural born citizen as defined by the Minor Court, then the WKA case would never have been filed because Mr. Ark’s status as a citizen would never have been in question. Had Mr. Ark been a natural born citizen the WKA Court would not have had to resort to the 14th Amendment in order to find that he was a “citizen.” Because Mr. Ark was not a natural born citizen, the WKA court had no reason to construe the term natural born citizen in order to answer the question: Was Mr. Ark a citizen under the 14th Amendment? Therefore, any discussion within the WKA opinion that could possibly be construed to alter the Article II term “natural born citizen,” was unnecessary to reach the WKA holding and was, by definition, dicta. See Black’s Law Dictionary 465 (Bryan A. Garner e., 7th ed., West 1999)(defining Dictum Gratis).

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The WKA holding does not contain the term “natural born” nor does it mention Article II.

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20

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Also, to conclude that the WKA Court altered the definition of natural born citizen under Article II would also require a conclusion that the WKA court intended to overturn the Minor holding that the 14th amendment did not create any new privileges or immunities. Yet the WKA Court never made any such assertion, nor has any decision of this Court since WKA.

Nothing in the holding of Wong Kim Ark contradicts anything in Minor v. Happersett. Reading these two opinions with the distinction between “citizen” and “natural born citizen” in mind, and with the definitions of “holding,” “precedent,” and “dicta”

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To conclude that the WKA court altered the definition of natural born citizen under Article II would require a conclusion that dicta alters established precedent. This is simply not the rule. Dicta can be persuasive. Where the reasoning in dicta is logical and well supported, and where it does not conflict with precedent, it can be followed at the discretion of other courts. However, where dicta directly conflicts with precedent it cannot be followed by lower courts.

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Rather than construing the definition of the term “natural born citizen” under Article II, the WKA Court was construing the term “citizen” under the 14th Amendment. Regardless of the answer to the question answered by the WKA Court, it does nothing to change the requirements for the office of President.

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21 in mind, confirms that the Minor and Wong Kim Ark opinions do not conflict. Common sense and rules of construction tell us that if two laws, constitutional provisions, or court opinions can be read to not conflict, such an interpretation is more likely correct than an interpretation that requires conflict. A proper reading of these two opinions reveals that they conform to each other and complement each other.

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The Georgia Secretary of State’s decision concludes that any person born within the United States, regardless of the citizenship or legal status of their parents, is a “natural born citizen” under Article II of the United States Constitution. This conclusion violates venerable rules of Constitutional Construction established by this Court. In Marbury v. Madison this Court explained, “It cannot be presumed that any clause in the Constitution is intended to be without effect; and therefore such a construction is inadmissible.” 5 U.S. 137, 174 (1805).

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F. Marbury v. Madison’s Rule of Constitutional Construction Supports Petitioners’ Harmonized Readings of Minor and Won Kim Ark

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This reading of Minor and WKA respects the foundational principals of constitutional construction and legal interpretation because these cases were answering different questions regarding different aspects of the Constitution. This reading of Minor and WKA leave these two opinions in harmony.

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22 This rule is still in effect and a similar rule is used for statutory construction: “When there are two acts upon the same subject, the rule is to give effect to both if possible…The intention of the legislature to repeal must be clear and manifest.” United States v. Borden Co., 308 U.S. 188, 198 (1939). See also, Morton v. Mancari, 417 U.S. 535, 551 (1974); United States v. Tynen, 78 U.S. 88 (1870); Henderson’s Tobacco, 78 U.S. 652 657 (1870); General Motors Acceptance Corp. v. United States, 286 U.S. 49, 61 (1932); Wood v. United States, 41 U.S. 342, 362-63 (1842).

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Yet the Georgia Secretary of State’s ruling in the instant case, and reading of the WKA opinion, leaves Article II’s “natural born citizen” clause with no independent meaning separate from the meaning of “citizen” under the 14th Amendment. Citizen simply does not have the same legal meaning as the term “natural born citizen.” Article II uses the term natural born citizen in order to distinguish this type of citizen from other citizens. Yet the Secretary’s holding completely negates this distinction. Therefore, the Secretary’s holding violates venerable

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These rules of construction were wellestablished and well-known at the time the 14th Amendment was drafted. Had the drafters of the 14th Amendment intended that Amendment to alter the Article II definition of natural born citizen, they would have clearly stated so. Yet the term “natural born citizen” is not found anywhere within the 14 th Amendment. The Amendment also makes no reference to Article II.

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23 rules of Constitutional construction. Marbury, 5 U.S. at 174. The Secretary also reads the words “natural born” into the very explicit holding of the Supreme Court’s Wong Kim Ark decision. 169 U.S. 649 (1898). Yet neither the 14th Amendment nor the holding of Wong Kim Ark include the term “natural born.” The Wong Kim Ark court was determining the meaning of the broader term “citizen” under the 14 th Amendment. Id. at 705. Its holding was highly factspecific. Id. Its holding neither mentioned Article II nor the term “natural born.” Id. The Georgia Secretary of State’s conclusion that all persons born on U.S. soil are Article IInatural born citizens, regardless of their parents’ citizenship, violates every rule of legal interpretation.

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The Georgia Secretary of State’s decision relies heavily upon an Indiana State Appellate Court opinion. See App.17a-22a. citing Ankeny v. Governor, 916 N.E.2d 678 (Ind. Ct. App. 2009). However, a cursory reading of the Ankeny opinion should lead any court to immediately recognize the limited value of that opinion.

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Ankeny was a challenge brought by pro-se litigants in Indiana against that state’s Governor. Id. at 679. While litigation by pro-se parties certainly

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G. Indiana State Court Lacked Jurisdiction to Reach the Article II Issue

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24 does not, by itself, negate the value of an opinion, it certainly should raise some concerns. Most pro-se litigants cannot be expected to present courts with fully researched and briefed arguments in support of their constitutional assertions. Addtionally, the Defendant in Ankeny was a sitting Governor with all the resources of the state at his disposal. Id. This picture explains the very one-sided presentation of the issues and the ultimate result in Ankeny.

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Much more striking, however, is the fact that the Ankeny Court admitted that the plaintiff lacked standing. Id. at 684. Since the plaintiff lacked standing, the Ankeny Court lacked jurisdiction to reach any substantive issue presented. Yet after reaching this conclusive finding, the Ankeny court took it upon itself to construe Article II of the U.S. Constitution. While a court may use alternative means to reach a holding, it should not construe the U.S. Constitution to do so. Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439, 445-46 (1988) (“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.”). Judicial restraint requires all courts to avoid construing any clause of the Constitution if avoiding such construction is at all possible. Id. By pushing forward to give its opinion on the meaning of Article II, after ruling that it lacked jurisdiction in the case, the Ankeny Court ignored judicial restraint, ignored rules of constitutional construction, ignored direct precedent from this Court, and ignored the Article III constitutional limits on its own authority.

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25 In other words, the Ankeny Court’s decision to reach the constitutional question demonstrates that Court’s failure to understand the most basic doctrines applied by this Court when construing the Constitution. With this fact in mind, the Ankeny Court’s opinion regarding the meaning of Article II and the 14th Amendment should be avoided at all costs by any other court. Yet the Georgia Administrative Court, Georgia Secretary of State, and other courts across the country are citing Ankeny as decisive on the natural born citizen issue. CONCLUSION

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Respectfully submitted, Van R. Irion Liberty Legal Foundation 9040 Executive Park Drive, Ste.200 Knoxville, TN 37923 (423) 208-9953

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J. Mark Hatfield, Esq. Hatfield & Hatfield, P.C. 201 Albany Avenue P.O. Box 1361 Waycross, Georgia 31502 (912) 283-3820

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For the reasons discussed above the petitioners respectfully request a writ of certiorari be granted.

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1a APPENDIX Part A Supreme Court of Georgia Orders Denying Review, April 4, 2012 SUPREME COURT OF GEORGIA Case No. S12D1059 Atlanta, April 04, 2012

The Honorable Supreme Court met pursuant to adjournment. The following order was passed.

DAVID P. WELDON v. BARACK OBAMA

SUPREME COURT OF THE STATE OF GEORGIA

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Clerk's Office, Atlanta

I certify that the above is a true extract from minutes of the Supreme Court of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. Lia C. Fulton, Chief Deputy Clerk

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Trial Court Case No. 2012CV211537

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Upon consideration of the Application for Discretionary Appeal, it is ordered that it be hereby denied. All the Justices concur.

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From the Superior Court of Fulton County.

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2a SUPREME COURT OF GEORGIA Case No. S12D1077 Atlanta, April 04, 2012 The Honorable Supreme Court met pursuant to adjournment. The following order was passed.

KEVIN RICHARD POWELL v. BARACK OBAMA From the Superior Court of Fulton County.

Upon consideration of the Application for Discretionary Appeal, it is ordered that it be hereby denied. All the Justices concur. Trial Court Case No. 2012CV211528

SUPREME COURT OF THE STATE OF GEORGIA Clerk's Office, Atlanta

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Witness my signature and the seal of said court hereto affixed the day and year last above written. Lia C. Fulton, Chief Deputy Clerk

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I certify that the above is a true extract from minutes of the Supreme Court of Georgia.

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3a SUPREME COURT OF GEORGIA Case No. S12D1076 Atlanta, April 04, 2012 The Honorable Supreme Court met pursuant to adjournment. The following order was passed.

CARL SWENSSON v. BARACK OBAMA From the Superior Court of Fulton County.

Upon consideration of the Application for Discretionary Appeal, it is ordered that it be hereby denied. All the Justices concur. Trial Court Case No. 2012CV211527

SUPREME COURT OF THE STATE OF GEORGIA Clerk's Office, Atlanta

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Witness my signature and the seal of said court hereto affixed the day and year last above written. Lia C. Fulton, Chief Deputy Clerk

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I certify that the above is a true extract from minutes of the Supreme Court of Georgia.

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4a APPENDIX Part B Superior Court of Fulton County, State of Georgia, Order Granting Defendant Obama’s Motion to Dismiss Appeal, March 2, 2012

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CARL SWENSSON, Petitioner, v. CIVIL ACTION FILE NO.2012CV211527 BARACK OBAMA, Respondent.

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BARACK OBAMA and SECRETARY OF STATE Respondents.

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DAVID FARRAR, LEAH LAX, CODY ROBERT JUDY, LAURIE ROTH, Petitioners, v. CIVIL ACTION FILE NO.2012CV211398

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IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA

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5a KEVIN RICHARD POWELL, Petitioner, v. CIVIL ACTION FILE NO.2012CV211528 BARACK OBAMA, Respondent. DAVID P. WELDEN, Petitioner, v. BARACK OBAMA, Respondent.

CIVIL ACTION FILE NO.2012CV211537

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The above-captioned actions are before the Court on the Petitioner(s) for Judicial Review of Petitioners David Farrar, et al., Carl Swensson, Kevin Richard Powell, and David P. Welden, which were filed in this Court on February 13, 2012, and February 15, 2012, respectively. Although initially assigned to four (4) different Superior Court Judges, the matters were transferred to the Honorable Chief Judge Cynthia D. Wright, to whom the first-filed case was assigned (Farrar, et al. v. Obama, et al., Civil Action File No. 2012CV11398), because each is an appeal of the same decision issued on February 3, 2012 by Administrative Law Judge Michael M. Malihi in the Office of State Administrative Hearings and thereafter adopted by the Secretary of State.

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ORDER GRANTING RESPONDENT BARACK OBAMA’S MOTION(S) TO DISMISS

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6a Presently before the Court is the Motion to Dismiss of Respondent Barack Obama, filed in each of the above-referenced actions of February 27, 2012. The Motion(s) to Dismiss are identical in form and substance and will, therefore, be addressed by the Court in one consolidated Order to be applied in each case. Now, having considered the Motion(s) to Dismiss, the other pleadings of record, and applicable Georgia law, the Court finds as follows:

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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 possible 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 review to the reviewing court. The review shall be conducted by the court without a jury and shall be confined to the record.

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Petitioners filed their Appeal/Petition for Judicial Review of the Secretary of State’s decision in this Court pursuant to O.C.G.A. §21-2-5(e), which provides as follows:

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7a Petitioners allege that Respondent Barack Obama is not a “natural born citizen”4 and, thus, is not qualified for candidacy in Georgia’s 2012 Presidential Primary. Despite its application in the court below, this Court does not believe that O.C.G.A. §21-2-5 applies in this case because the challenge at issue involves the Presidential Preference Primary, which by its terms, is an opportunity for electors “to express their preference for one person to be a candidate for nomination.” O.C.G.A. §21-2-191. The Presidential Preference Primary apportions delegates, but neither elects nor nominates candidates for the Presidency. Therefore, because Respondent Barack Obama is not yet a “candidate” for the Presidential election in question and because the Presidential Preference Primary is not an “election” within the meaning of O.C.G.A. §212-1, et seq., §21-2-5 does not apply. See §21-2-2(5) and 21-2-5. Moreover, it is well established in Georgia as elsewhere in the United States that voters vote on “presidential electors,” rather than voting directly for a candidate, when voting for the Office of President of the United States. O.C.G.A §21-2-172. The political parties’ candidates for President are determined by convention of the political party. See O.C.G.A. §§21-2-191 to 21-2-200. In the case of a democratic candidate for President, the Democratic Party of Georgia has the sole discretion to determine the qualifications of potential candidates and the name(s) to be included on its Presidential Preference
4

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Petitioners claim is based, in part, on a contention that at the time of his birth, Respondent’s father was not a citizen of the United States.

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8a Primary ballot. O.C.G.A. §21-2-193; see Duke v. Cleland, 954 F.2d 1523 (11th Cir. 1992); Duke v. Cleland, 884 F.Supp. 511, 515-16 (N.D.Ga. 1995). The Secretary of State is prohibited by the Fourteenth Amendment of the United States Constitution and Georgia statutory law from infringing on the associational rights of the electors. O.C.G.A. §§21-2-172 to 21-2-200; Duke v. Cleland, 884 F.Supp. at 515-16 (N.D.Ga. 1995). Even if the Secretary of State believes that a challenger’s claims are valid, the Secretary of State may not interfere with a political party’s internal decision-making. Id. Based upon Georgia law and governing precedent, the Court finds it has no authority to exercise jurisdiction over the Democratic Party of Georgia’s selection of the name(s) to be included in the Presidential Preference Primary or to examine the qualifications of those individuals. Therefore, these actions should be DISMISSED in accordance with O.C.G.A. §9-11-12(b).

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Additionally, even if the Court had determined that O.C.G.A. §21-2-5 applied to these matters and provided the Court with appellate jurisdiction over same, the Court finds that Petitioners have failed entirely to perfect personal service upon Respondent(s) as required by O.C.G.A. §21-2-5(e) and O.C.G.A. §9-11-4. See Bible v. Bible, 259 Ga. 418, 418 (1989). Therefore, IT IS HEREBY ORDERED AND ADJUGED that Respondent Barack Obama’s

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9a Motion(s) to Dismiss in the above matters are GRANTED, and the above actions are hereby DISMISSED. SO ORDERED this the 2nd day of March 2012.

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CYNTHIA D. WRIGHT, Chief Judge Fulton County Superior Court

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10a APPENDIX Part C Final Decision of the Georgia Secretary of State, February 7, 2012, Adopting the Decision of the Georgia Office of Administrative Hearings IN THE OFFICE OF THE SECRETARY OF STATE STATE OF GEORGIA DAVID FARRAR, LEAH LAX, CODY ROBERT JUDY, LAURIE ROTH, Petitioners, v. Docket Number: OSAHSECSTATE-CE-121513660-MALIHI BARACK OBAMA Respondent. DAVID P. WELDEN, Petitioner, v.

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BARACK OBAMA, Respondent.

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Docket Number: OSAHSECSTATE-CE-121513760-MALIHI

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11a CARL SWENSSON, Petitioner, v.

Docket Number: OSAHSECSTATE-CE-121621860-MALIHI

FINAL DECISION5

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Petitioners filed candidate challenges pursuant to O.C.G.A. §21-2-5(b) contending that Respondent does not meet the State of Georgia’s eligibility requirements for his name to be listed on the 2012 Presidential Preference Primary ballot. Judge Michael Malihi, Administrative Law Judge (“ALJ”) for the Office of State Administrative Hearings, held a hearing on each candidate challenge on January 26, 2012 and entered an initial decision for the above-captioned cases on February 3, 2012.

Judge Michael Malihi previously consolidated the above-captioned candidate challenges for the purpose of issuing his initial decision. Those candidate challenges remain consolidated for the purpose of issuing this Final Decision.

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KEVIN RICHARD POWELL, Petitioner, v. Docket Number: OSAHSECSTATE-CE-121682360-MALIHI BARACK OBAMA, Respondent.

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BARACK OBAMA, Respondent.

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12a The Secretary of State formally adopts the initial decision of the ALJ into this final decision. Therefore, IT IS HEREBY DECIDED THAT the above-captioned challenges are DENIED.

BRIAN P. KEMP Georgia Secretary of State

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SO DECIDED this 7th day of February, 2012.

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13a APPENDIX Part D Decision of Georgia Office of State Administrative Hearings, February 3, 2012, Ruling All Persons Born on U.S. Soil to be Article II Natural Born Citizens OFFICE OF STATE ADMINISTRATIVE HEARINGS STATE OF GEORGIA

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BARACK OBAMA, Respondent.

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DAVID P. WELDEN, Petitioner, v.

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DAVID FARRAR, LEAH LAX, CODY ROBERT JUDY, LAURIE ROTH, Petitioners, v. Docket Number: OSAHSECSTATE-CE-121513660-MALIHI BARACK OBAMA Respondent.

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Docket Number: OSAHSECSTATE-CE-121513760-MALIHI

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14a CARL SWENSSON, Petitioner, v.

Docket Number: OSAHSECSTATE-CE-121621860-MALIHI

DECISION6

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This Decision has been consolidated to include the four challenges to President Obama's candidacy filed by Plaintiffs David Farrar, et al., David P. Welden, Carl Swensson, and Kevin Richard Powell. Section I of this Decision applies only to the case presented by Ms. Taitz on behalf of Mr. Farrar and his co-plaintiffs, Leah Lax, Cody Judy, Thomas Malaren, and Laurie Roth, and does not pertain, in any way, to the cases of Mr. Welden, Mr. Swensson, and Mr. Powell. Section II applies to all Plaintiffs.

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Plaintiffs allege that Defendant President Barack Obama does not meet Georgia's eligibility requirements for candidacy in Georgia's 2012 presidential primary election. Georgia law mandates that candidates meet constitutional and statutory requirements for the office that they seek. O.C.G.A. §

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KEVIN RICHARD POWELL, Petitioner, v. Docket Number: OSAHSECSTATE-CE-121682360-MALIHI BARACK OBAMA, Respondent.

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BARACK OBAMA, Respondent.

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15a 21-2-5(a). Mr. Obama is a candidate for federal office who has been certified by the state executive committee of a political party, and therefore must, under Georgia Code Section 21-2-5, meet the constitutional and statutory qualifications for holding the Office of the President of the United States. Id. The United States Constitution requires that a President be a "natural born [c]itizen." U.S. Const. art. II, § 1, cl. 5.

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As required by Georgia Law, Secretary of State Brian Kemp referred Plaintiffs' challenges to this Court for a hearing. O.C.G.A. § 21-2-5(b). A hearing was held on January 26, 2012. The record closed on February 1, 2012. Plaintiffs Farrar, Lax, Judy, Malaren, and Roth and their counsel Orly Taitz, Plaintiffs Carl Swensson and Kevin Richard Powell and their counsel J. Mark Hatfield, and Plaintiff David P. Welden and his counsel Van R. Irion, all appeared and answered the call of the case. However, neither Defendant nor his counsel, Michael Jablonski, appeared or answered. Ordinarily, the Court would enter a default order against a party that fails to participate in any stage of a proceeding. Ga. Comp. R. & Regs. 616-1-2-.30(1) and (5). Nonetheless, despite the Defendant's failure to appear, Plaintiffs asked this Court to decide the case on the merits of their arguments and evidence. The Court granted Plaintiffs' request. By deciding this matter on the merits, the Court in no way condones the conduct or legal scholarship of Defendant's attorney, Mr. Jablonski. This Decision is entirely based on the law, as well as

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16a the evidence and legal arguments presented at the hearing. I. Evidentiary Arguments of Plaintiffs Farrar, et al. Plaintiffs Farrar, Lax, Judy, Malaren, and Roth contend that President Barack Obama is not a natural born citizen. To support this contention, Plaintiffs assert that Mr. Obama maintains a fraudulently obtained social security number, a Hawaiian birth certificate that is a computergenerated forgery, and that he does not otherwise possess valid U.S. identification papers. Further, Plaintiffs submit that Mr. Obama has previously held Indonesian citizenship, and he did not use his legal name on his notice of candidacy, which is either Barry Soetoro or Barack Obama Soebarkah. (Pl.s' Am. Compl. 3.)

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At the hearing, Plaintiffs presented the testimony of eight witnesses7 and seven exhibits in support of their position. (Exs. P-1 through P-7.) When considering the testimony and exhibits, this Court applies the same rules of evidence that apply to civil nonjury cases in superior court. Ga. Comp. R. & Regs. 616-1-2-.18(1)—(9). The weight to be given to any evidence shall be determined by the Court based
Originally, Ms. Taitz indicated to the Court that she would offer the testimony of seven witnesses. However, during her closing argument, Ms. Taitz requested to testify. Ms. Taitz was sworn and began her testimony, but shortly thereafter, the Court requested that Ms. Taitz step-down and submit any further testimony in writing.

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17a upon its reliability and probative value. Ga. Comp. R. & Regs. 616-1-2.18(10). The Court finds the testimony of the witnesses, as well as the exhibits tendered, to be of little, if any, probative value, and thus wholly insufficient to support Plaintiffs' allegations.8 Ms. Taitz attempted to solicit expert testimony from several of the witnesses without qualifying or tendering the witnesses as experts. See Stephens v. State, 219 Ga. App. 881 (1996) (the unqualified testimony of the witness was not competent evidence). For example, two of Plaintiffs' witnesses testified that Mr. Obama's birth certificate was forged, but neither witness was properly qualified or tendered as an expert in birth records, forged documents or document manipulation. Another witness testified that she has concluded that the social security number Mr. Obama uses is fraudulent; however, her investigatory methods and her sources of information were not properly presented, and she was never qualified or tendered as an expert in social security fraud, or fraud investigations in general. Accordingly, the Court cannot make an objective threshold determination of these witnesses' testimony without adequate knowledge of their qualifications. See Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872 (1957) (for the testimony of an expert witness to be received, his or her qualifications as such must be first proved).
8

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The credibility of witnesses is within the sole discretion of the trier of fact. In non-jury cases that discretion lies with the judge. See Mustang Transp., Inc. v. W. W. Lowe & Sons, Inc., 123 Ga. App. 350, 352 (1971).

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18a None of the testifying witnesses provided persuasive testimony. Moreover, the Court finds that none of the written submissions tendered by Plaintiffs have probative value. Given the unsatisfactory evidence presented by the Plaintiffs, the Court concludes that Plaintiffs' claims are not persuasive. II. Application of the "Natural Born Citizen" Requirement

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The definition of this clause has been the source of much debate. See, e.g., Gordon, Who Can Be President of the United States: The Unresolved Enigma, 28 Md. L. Rev. 1 (1968); Jill A. Pryor, Note, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, 97 Yale L.J. 881 (1988); Christina S. Lohman, Presidential Eligibility: The Meaning of the Natural-Born Citizen Clause, 36 Gonz. L. Rev. 349 (2000); William T. Han, Beyond Presidential Eligibility: The Natural Born Citizen Clause as a Source of Birthright Citizenship, 58 Drake L. Rev. 457 (2010).

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Plaintiffs allege that President Barack Obama is not a natural born citizen of the United States and, therefore, is not eligible to run in Georgia's presidential primary election. As indicated supra, the United States Constitution states that "[n]o person except a natural born Citizen . . . shall be eligible for the Office of the President . . .”9 U.S. Const. art. I, §1, cl. 5.

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19a States citizen. Plaintiffs contend that, because his father was not a U.S. citizen at the time of his birth, Mr. Obama is constitutionally ineligible for the Office of the President of the United States. The Court does not agree. In 2009, the Indiana Court of Appeals ("Indiana Court") addressed facts and issues similar to those before this Court. Ankeny v. Governor, 916 N.E.2d 678 (Ind. Ct. App. 2009). In Ankeny, the plaintiffs sought to prevent certification of Mr. Obama as an eligible candidate for president because he is not a natural born citizen. Id. at 681. The plaintiffs argued, as the Plaintiffs argue before this Court, that "there's a very clear distinction between a 'citizen of the United States' and a 'natural born Citizen,' and the difference involves having [two] parents of U.S. citizenship, owing no foreign allegiance." Id. at 685. The Indiana Court rejected the argument that Mr. Obama was ineligible, stating that children born within the United States are natural born citizens, regardless of the citizenship of their parents. Id. at 688. This Court finds the decision and analysis of Ankeny persuasive. The Indiana Court began its analysis by attempting to ascertain the definition of "natural born citizen" because the Constitution does not define the term. Id. at 685-86; See Minor v. Happersett, 88 U.S. 162, 167 (1875) ("The Constitution does not, in words, say who shall be natural born citizens. Resort must be had elsewhere to ascertain that"); see also United States v. Wong Kim Ark, 169 U.S. 649 (1898) (noting that the only mention of the term "natural born citizen" in the

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20a Constitution is in Article II, and the term is not defined in the Constitution). The Indiana Court first explained that the U.S. Supreme Court has read the Fourteenth Amendment and Article II (natural born citizen provision) in tandem and held that "new citizens may be born or they may be created by naturalization." Id. at 685 (citing Minor, 88 U.S. at 167); See U.S. Const. amend. XIV, § 1. ("All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States . . . ."). In Minor, the Court observed 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 authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. Id. at 167-68.

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Plaintiffs ask this Court to read the Supreme Court's decision in Minor as defining natural born citizens as only "children born in a country of parents

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21a who were its citizens." 88 U.S. at 167. However, the Indiana Court explains that Minor did not define the term natural born citizen. In deciding whether a woman was eligible to vote, the Minor Court merely concluded that children born in a country of parents who were its citizens would qualify as natural born, and this Court agrees. The Minor Court left open the issue of whether a child born within the United States of alien parent(s) is a natural born citizen.

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Next, the Indiana Court looked to United States v. Wong Kim Ark, in which the Supreme Court analyzed the meaning of the words "citizen of the United States" in the Fourteenth Amendment and "natural born citizen of the United States" in Article II to determine whether a child born in the United States to parents who, at the time of the child's birth, were subjects of China "becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the fourteenth amendment . . ." Id. at 686 (citing Wong Kim Ark, 169 U.S. at 653). The Indiana Court determined that the two provisions "must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution." Id. (citing Wong Kim Ark, 169 U.S. at 654). The Indiana Court agreed that "[t]he interpretation of the constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history." Id. (citing Wong Kim Ark, 169 U.S. at 655) (internal citation omitted). The Wong Kim Ark Court extensively examined the common law of England in its decision and concluded that Wong Kim Ark, who was born in the United States to

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22a alien parents, became a citizen of the United States at the time of his birth. Wong Kim Ark, 169 U.S. at 705.10

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The Wong Kim Ark Court explained:

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It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction, of the English Sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign State, or of an alien enemy in hostile occupation of the place where the child was born. Id. at 658. Further: Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth. Id. at 660 (quoting Inglis v. Trustees of

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The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith" or "power," of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual . . . and were not restricted to naturalborn subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction of the King. 169 U.S. at 655.

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23a

Relying on the language of the Constitution and the historical reviews and analyses of Minor and Wong Kim Ark, the Indiana Court concluded that: “persons born within the borders of the United States are "natural born citizens" for Article II, Section 1 purposes, regardless of the citizenship of their parents. Just as a person ‘born within the British dominions [was] a natural-born British subject’ at the time of the framing of the U.S. Constitution, so too were those "born in the allegiance

Sailors' Snug Harbor, 28 U.S. (3 Pet.) 99, 164 (1830) (Story, J., concurring)). And: The first section of the second article of the constitution uses the language, 'a natural-born citizen.' It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the constitution, which referred citizenship to the place of birth. Id. at 662 (quoting Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 576 (1856) (Curtis, J., dissenting)). Finally:

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All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. Id. at 662-63 (quoting United States v. Rhodes, (1866) (Mr. Justice Swayne)).

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24a of the United States natural-born citizens.” 916 N.E.2d at 688. The Indiana Court determined that a person qualifies as a natural born citizen if he was born in the United States because he became a United States citizen at birth.11 For the purposes of this analysis, this Court considered that President Barack Obama was born in the United States. Therefore, as discussed in Ankeny, he became a citizen at birth and is a natural born citizen. Accordingly,

SO ORDERED, February 3, 2012.

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This Court recognizes that the Wong Kim Ark case was not deciding the meaning of "natural born citizen" for the purposes of determining presidential qualifications; however, this Court finds the Indiana Court's analysis and reliance on these cases to be persuasive.
11

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MICHAEL M. MALIHI, Judge

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President Barack Obama is eligible as a candidate for the presidential primary election under O.C.G.A. § 21-2-5(b).

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CONCLUSION

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25a

Part E Constitutional Provisions Involved– Article II §1 Clause 5; Amendment I; Amendment XIV Article II §1 Clause 5: “No person except a natural born citizen, or a citizen at the time of the adoption of this Constitution, shall be eligible to the Office of President.”

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Amendment XIV § 1: “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 United 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.”

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Amendment I: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble; and to petition the government for a redress of grievances.”

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26a Part F Statutory Provisions Involved – O.C.G.A. §§21-215 and 21-2-5 O.C.G.A. §21-2-15: “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.” O.C.G.A. §21-2-5: “Qualifications of candidates for federal and state office; determination of qualifications

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(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 candidate. Within two weeks after the deadline for qualifying, any elector who is eligible to vote for a candidate may challenge the qualifications of the candidate by filing a written complaint with the Secretary of State giving the reasons 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

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(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 candidacy shall meet the constitutional and statutory qualifications for holding the office being sought.

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27a being filed, the Secretary of State shall notify the candidate in writing that his or her qualifications are being challenged and the reasons therefore 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 Administrative Hearings pursuant to Article 2 of Chapter 13 of Title 50 and shall inform the candidate of the date, time, and place of the hearing when such information 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 the 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 strike 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. (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 financial institution returning the check certifies in writing by an officer's or director's oath that the

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28a bank, credit union, or financial institution erred in returning 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 possible 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 review 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 further 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:

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(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;

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29a

(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.”

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