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The 2012 Texas Ballot Challenge

Presented by Kelly Canon (in collaboration with jbjd)

2012 jbjd and kjcanon

Even before the Presidential primary season in 2008, most of us already knew: to be Constitutionally eligible for President (or Vice President) 1. you have to be a Natural Born Citizen 2. you have to be 35 years old 3. you have to live in the U.S. for 14 years

But, for the first time, millions of us began wondering how to determine the candidates satisfied that eligibility. (And what does Natural Born Citizen mean, anyway?)

Why this sudden seismic shift from civic complacency, to concern? (In other words, what got our attention.)

Rumors had sprouted that Barack Obama, then Democratic Presidential nominee wannabe, was not a Natural Born Citizen.

Mr. Obamas campaign addressed these rumors by posting this now familiar web site on June 12, 2008.

Screenshot of the Fight the Smears website, 2008 (top half)

Screenshot of the Fight the Smears website, 2008 (bottom half)

Note: this version of Fight the Smears was designed to be used after the Presidential nominating convention but before the general election.
How do I know?

Because the language in the footer changes, depending on the phase of the campaign.

However, while the Obama campaign launched the Fight the Smears web site in June 2008;

they fabricated and copyrighted it back in 2007.

<Description> Barack Obama 2008 Presidential Campaign: Fight the Smears <Title> Fight the Smears: The Truth About Baracks Birth Certificate Copyright 2007 Barack Obama

The Obama campaign shared their production with other venues, including LA Times, Daily Kos, and Annenberg Political FactCheck, all of whom subsequently reported they could confirm the images authenticity. How? Because they got it directly from the Obama campaign.

Millions of us who had questioned whether the nominee wannabe was eligible to be President now saw Fight the Smears. Our reaction?

We began analyzing pixels on the computer screen trying to prove whether the image was real.

jbjd hadnt even considered whether Barack Obama was eligible to become President before June 12, 2008. All of her time and energy was focused on making sure Senator Hillary Clinton got the job. But then, she saw Fight the Smears, on the candidates newly minted web site. Here are some things which caught her attention.

Under the heading, The Truth About Baracks Birth Certificate, there was this: Smears claiming Barack Obama doesnt have a birth certificate arent actually about that piece of paper theyre about manipulating people into thinking Barack isnt an American citizen.

And this. The truth is, Barack was born in 1961 in the state of Hawaii, a native citizen of the United States of America.

And this.
Next time someone talks about Baracks birth certificate, make sure they (sic) see this page.

The line, Barack Obamas Official Birth Certificate appeared directly above a facsimile of an official-looking document, in green, entitled, Certification of Live Birth, which indicated he was born in Hawaii.

The attribution in the footer at the bottom of the page clearly stated: Paid for by Barack Obama.

What was her reaction to Fight the Smears?

(Actually, she said something else, but she cleaned up the language for this presentation.)

Keep in mind that as of June 12, 2008, jbjd, like most of us, knew nothing about the laws governing the identification of funding and authorizing sources for political expenditures; or limiting a bona fide identification document to one generated by the issuing authority.

She couldnt distinguish between a birth certificate and a certification.

She had no idea the difference between a native citizen versus one who was natural born. (She didnt know what natural born meant, anyway.)

But she could read the imprinted word in the heading of the form on the screen was certification, not certificate.

And she was certain natural born, not native, was the language in the Constitution.

Common sense told her, doubt everything said in Fight the Smears, which was bought and paid for by the Presidential candidate who insisted he was Constitutionally eligible for office; for the admitted purpose of dispelling rumors, he had lied!

Or, maybe it was both common sense and common law. Because like Barack Obama, jbjd is also a lawyer. (Hence the jd, for Juris Doctor.) Either way, she knew even before viewing that June 2008 Certification

electronic images visible only with the aid of a computer screen constitute evidence of absolutely nothing
(let alone prove that a Presidential candidate is Constitutionally eligible for the job).

Perhaps more importantly; jbjd knew that the lawyers working on the Obama campaign certainly knew Fight the Smears meant nothing, too.

Now, mired up to here with trying to prevent Obama from stealing Clintons nomination; for the first time, jbjd began to suspect he might not be Constitutionally eligible for the job.

But, unlike those of us who were focusing on how to establish he hasnt satisfied Constitutional eligibility; jbjd began asking who is responsible for determining he has?

So began her foray into Presidential eligibility. And, in no time at all, she was jolted out of decades of civic neglect. Because as she discovered; while the Constitution spells out the prerequisite to Presidential eligibility, citizens have enacted no laws which require any state actor, that is, a government official, to check. And, equally shocking, is this:


No matter how often or how strenuously people repeat the claim that the definition is fixed by reference to any other written work. Because, as the Constitution instructs, defining its terms falls under the jurisdiction of the justices of the federal appellate court, and not individual citizens. (The U.S. Supreme Court is both an appellate court and a court of original jurisdiction.)

THERE IS NO LEGALLY BINDING DEFINITION OF THE TERM, NATURAL BORN CITIZEN. Whats more, there will only be a legally binding definition of natural born citizen when a federal appellate court issues a ruling in a case directly on point. Furthermore, no matter how often or how strenuously people repeat the claim that the court has already issued such a ruling; it has not.


I dont know; your guess as good as mine.



This means, in order to be eligible to be President, the candidate has to at least be a citizen, whether natural born

and, given the shenanigans jbjd observed on Fight the Smears, she now doubted whether any documentary evidence available in the public record could establish Mr. Obama was even that! She determined to figure out who was authorized to certify the candidates Constitutional eligibility.

jbjd studied the provisions in the Constitution with respect to elections; and, reviewed selected state election codes. Almost immediately, she realized 1. No law requires state Electors to only elect a President who is Constitutionally eligible for the job. (On the other hand; voters in several states have passed laws requiring Electors to cast votes for the nominees of their political party!)

2. Congress is only required to Certify the vote of the Electors for President as to procedure, not Constitutional eligibility. (The Constitution doesnt use the term Electoral College.)

3. The Chief Justice of the U.S. Supreme Court swears in to office, the President the Electors elected.

Now, she realized the country could end up with a lawfully elected but Constitutionally ineligible President unless Clinton supporters at the convention were able to forestall Obamas nomination!

But what if Obama became the Democratic Presidential nominee, even assuming he is Constitutionally ineligible for the job. Given existing laws; at this point, could anything be done to prevent his election?

The answer came to jbjd in the beginning of August, 2008 (at 3:00 in the morning).

Candidates cannot get elected unless their names are on the ballot.
So, if you think a candidate is ineligible to be President


And, while elections are a state affair; voters will likely not cast their votes for a candidate on the ballot in one state, knowing he was unqualified to get on the ballot in another.

jbjd did her best to share this epiphany. She urged citizens throughout the blogosphere to check election laws in our states. Several writers from Texas seemed particularly irate about the eligibility situation. So jbjd, who is not from Texas, looked up our laws. She struck oil.

ELECTION CODE TITLE 11. PRESIDENTIAL ELECTIONS CHAPTER 192. PRESIDENTIAL ELECTORS AND CANDIDATES 192.031. PARTY CANDIDATE'S ENTITLEMENT TO PLACE ON BALLOT. (a) A political party is entitled to have the names of its nominees for president and vice-president of the United States placed on the ballot in a presidential general election if: (1) the nominees possess the qualifications for those offices prescribed by federal law; (3) the party's state chair delivers the written certification to the secretary of state before the later of (A) 5 p.m. of the 70th day before presidential election day

Party candidates for President and Vice President are entitled to have their names on the general election ballot only when they are federally qualified for the job; and the state party chair delivers the names to the Secretary.
(Not every state requires ballot eligibility!)

ELECTION CODE TITLE 11. PRESIDENTIAL ELECTIONS Sec. 192.033. CERTIFICATION OF CANDIDATES FOR PLACEMENT ON BALLOT. (a) Except as provided by Subsection (c), the secretary of state shall certify in writing for placement on the general election ballot the names of the candidates for president and vice-president who are entitled to have their names placed on the ballot. (b) The secretary of state shall deliver the certification to the authority responsible for having the official ballot prepared in each county before the later of the 68th day before presidential election day or the second business day after the date of final adjournment of the party's national presidential nominating convention.

The Secretary is only authorized to put on the general election ballot the names of party candidates entitled to appear.

There were laws saying applications to get on the primary ballot had to be filed with the chair of the state party; laws saying those applications were public documents upon filing; and laws saying citizens aggrieved that party chairs refused requests to hand over these documents, could get the court to order compliance (under an action called Mandamus).

jbjd posted these Texas election laws all over the internet and then, wishing us the best; resumed her work on getting Clinton the nomination.

Barack Obama was sworn in as the 44th President of the United States of America on January 20, 2009.

Okay, so, we Texans who questioned Barack Obamas Constitutional eligibility; failed to prevent his name from appearing on the 2008 general election ballot.

But now that hes running for re-election, can we keep his name off the ballot in 2012?

Because thanks to jbjd; heres what we know now that we didnt know then.

Paid political advertisements

official identification.

YouTube Ad for Fight the Smears (as part of the Ads by Google service, 2009)

Attack Watch Ad, 2012 (previously Fight the Smears)

DNC Re-election Ad, 2011 (launching the image The Truth About Barack Obamas Birth Certificate)

Source code for The Truth About Barack Obamas Birth Certificate, loaded on DNC Services Corporation web site April 27, 2011, at 5:09 AM.

We know the Secretary of State determines which candidates are federally qualified and, therefore, entitled to appear on the ballot.

We know her standard for establishing federal qualification is to have the candidate submit a ballot application claiming Constitutional eligibility, accompanied by an oath under the pains and penalties of perjury, this is the truth.
Look at the application she devised for Independent and Write-in Presidential and Vice Presidential candidates to get on the general election ballot.

Write-In (or Independent) Candidate General Election Ballot Application to Secretary of State

Write-In (or Independent) Candidate General Election Ballot Application to Secretary of State

The Republican Party of Texas (RPT) adopted the Secretarys standard for ascertaining that the candidates applying to the primary ballot met federal qualification.

True, the law only states you have to be federally qualified to be entitled to get on the general election ballot. However, the only time state party chairs can establish this federal qualification is when candidates file applications with them, to get on the primary ballot.

RPT: Candidate Primary Ballot Application to Party Chair

RPT: Candidate Primary Ballot Application to Party Chair

And, in Texas, lying to the state party chair with respect to the ballot is like lying to the Secretary of State.
Sec. 37.01. DEFINITIONS. In this chapter:

(2) "Governmental record" means: (A) anything belonging to, received by, or kept by government for information, including a court record; (B) anything required by law to be kept by others for information of government; (E) an official ballot or other election record; or (3) "Statement" means any representation of fact. Sec. 37.02. PERJURY. (a) A person commits an offense if, with intent to deceive and with knowledge of the statement's meaning: (1) he makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath; (b) An offense under this section is a Class A misdemeanor.

And I know these applications are all they used for candidate authentication, because they told me so.

Screen-cap: RPT Response to Request for Documents

The Texas Democratic Party (TDP) also used candidate applications. But as you will see; that was the end of the resemblance to the forms used by both the Secretary and the RPT.

TDP: Candidate Primary Ballot Application to Party Chair

TDP: Candidate Primary Ballot Application to Party Chair

And I know these applications are all they used for candidate authentication, because they told me so.

Screen-cap: TDP Response to Request for Documents

Know what this means? Neither the Presidential nor the Vice Presidential nominee of the Democratic Party will be entitled to appear on the Texas general election ballot. And only the Republican Vice Presidential nominee who submitted a ballot application in the primary has been federally qualified for the job.

But we also know the Secretary ordinarily doesnt see these party applications

because these electronic transmissions are the only information she requires the parties to submit to support getting the names of their candidates on the primary ballot.
Democratic Party Candidates:

Republican Party Candidates:

In fact, we know she isnt interested in seeing them. Because we met with Keith Ingram, Elections Director, and offered to show these to him. But he fobbed us off with a wave of his hand: Go tell it to the Legislature.

Perhaps most importantly, we now know that . regardless of whether the nominees for President and Vice President have established federal qualification, Secretary Andrade will certify their names to the ballot merely assuming entitlement, anyway.

Because thats what she did in 2008.

So how do we stop her from doing this again in 2012?

Legal action.
But we need your help.

The 2012 Texas Ballot Challenge.

Are you in?

Read more at .