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Docket Nos. 09-56827 (L), 10-55084
In the

United States Court of Appeals
For the

Ninth Circuit
WILEY S. DRAKE and MARKHAM ROBINSON, Plaintiffs-Appellants, ALAN KEYES, Ph.D., Ambassador, et al., Plaintiffs, v.

BARACK HUSSEIN OBAMA, et al., Defendants-Appellees.
_______________________________________

Appeal from a Decision of the United States District Court for the Central District of California, No. 09-CV-00082 · Honorable David O. Carter

REPLY BRIEF OF APPELLANTS
GARY G. KREEP, ESQ. CHRISTOPHER P. TUCKER, ESQ. UNITED STATES JUSTICE FOUNDATION 932 D Street, Suite 2 Ramona, California 92065 (760) 788-6624 Telephone (760) 788-6414 Facsimile Attorneys for Appellants, Wiley S. Drake and Markham Robinson

COUNSEL PRESS · (800) 3-APPEAL

PRINTED ON RECYCLED PAPER

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TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii I. II. III. IV. V. INTRODUCTION .......................................................................................... 1 STANDING .................................................................................................... 2 REDRESSABILITY ....................................................................................... 7 POLITICAL QUESTION ............................................................................... 8 CONCLUSION ............................................................................................... 9

CERTIFICATE OF COMPLIANCE ....................................................................... 10 CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES FEDERAL CASES Hollander v. McCain (2008) 566 F.Supp.2d 63 ................................................... 3, 4 Lujan v. Defenders of Wildlife (1992) 504 U.S. 555 ............................................. 2, 3 Williams v. Rhodes (1968) 393 U.S. 23 ..................................................................... 9

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I. INTRODUCTION This Appeal of the order granting Respondent Barack Obama’s Motion to Dismiss is limited to the issues affecting Appellant’s Dr. Wiley Drake (hereinafter referred to as “DRAKE”) and Markham Robinson (hereinafter referred to as “ROBINSON”). . It is our understanding that Dr. Taitz will be addressing the issues affecting her clients in her Reply Brief. This action was brought by, among others, Plaintiffs Dr. Wiley Drake and Markham Robinson (hereinafter referred to as “APPELLANTS”). Dr. Wiley Drake was the Vice Presidential nominee for the American Independent Party in the 2008 Presidential Election on the California ballot. Markham Robinson was the Chairman of the American Independent Party and was a pledged Presidential Elector for the American Independent Party in the 2008 Presidential Election for the California ballot. Dr. Taitz is representing Plaintiff Dr. Alan Keyes (hereinafter referred to as “KEYES”), herein, who was the Presidential nominee for the 1

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American Independent Party in the 2008 Presidential Election on the California ballot. II. STANDING Barack Hussein Obama (hereinafter referred to as “OBAMA”) contends that APPELLANTS lack standing because “they cannot demonstrate a particularized injury in fact traceable to Defendants’ conduct as would be necessary to establish standing.” (Appellees’ Answering Brief, page 12). To support this contention, OBAMA cited Lujan v. Defenders of Wildlife, which states: “We have consistently held that a plaintiff raising only a generally available grievance about government-claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large-does not state an Article III case or controversy.” Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, 573.

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The Court in Lujan cited examples of generally available grievances about government including: a suit challenging the propriety of certain federal expenditures (Id. at 574); a suit contending that Justice Black's appointment to this Court violated the Ineligibility Clause (Id. at 574); a suit challenging the Government's failure to disclose the expenditures of the Central Intelligence Agency (Id. at 575); and a suit to block an execution on the basis of ‘the public interest protections of the Eighth Amendment' (Id. at 577). The Court explained that, in these examples, the plaintiffs were alleging injuries that applied equally to the public at large. Unlike the examples in the Lujan case, KEYES and DRAKE were running for President and Vice President of the United States, respectively, and were on the ballot in California. APPELLANTS did not suffer a generalized injury that was no different than any suffered by the public at large, and, instead, were harmed in that one of the competitors for the office of President ran for that office without the right to do so, thus denying APPELLANTS the right to compete fairly in the election. (Hollander v. McCain (2008) 566 F.Supp.2d 63). As APPELLANTS discussed in their opening brief, the Hollander v. 3

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McCain Court noted, “courts have held that a candidate or his political party has standing to challenge the inclusion of an allegedly ineligible rival on the ballot, on the theory that doing so hurts the candidate's or party's own chances of prevailing in the election.” (Id. at 68). APPELLANTS have reason to believe that OBAMA was, and is, ineligible to serve in the office of President and his inclusion on the ballot in California hurt APPELLANTS’ chance at prevailing in the state, and, for that reason, APPELLANTS have standing in this matter, and the granting of the motion to dismiss should be vacated. OBAMA further argues that, if a candidate for a particular office lacks the votes to win an election, the candidate cannot show any injury if another candidate who won the election unlawfully ran for the office (Appellees’ Answering Brief, page 12-13). This argument would seem to indicate that, if a candidate for office lacks any chance at prevailing, he or she has no interest in whether his or her opponents are following the applicable election rules. The current rules regarding Presidential elections allow for a candidate to run for the office of President of the United States even if that candidate is not on the ballot in other states. However, if such a candidate could 4

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never challenge the eligibility of a national candidate on the grounds that this candidate could never win the office, does that mean that third party candidates should never run for the office of President because they could never challenge any improper action of the national candidates? Does the law, therefore, provide opportunities for, and encourage, majority party presidential candidates to skirt or ignore election rules and since, according to APPELLANTS, third party presidential challengers would never have standing to challenge such violations of the rules on the grounds that no third party candidate could ever hope to win enough votes? Such a result would never be acceptable in the jurisprudence of this Court because such a result would be unjust. History is replete with third party candidates that while, arguably, not on the ballot in enough state to win a majority of the Electoral College votes, could impact, and have impacted, the national Presidential election. One need only look at the Presidential campaigns of H. Ross Perot and George Wallace to see the reality of a Presidential election where neither of the major party candidates being able to obtain a majority of the Electoral College votes. As Judge 5

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Carter pointed out, “The Court: Well, there's another part to your argument that I really want to consider, and that is it would legitimize the two party system to such an extent that independent parties would never have an opportunity. In other words, the rise of Ross Perot for instance, which did get a substantial amount of the American Vote.” (Reporters Transcript, Volume II, Page 225, Lines 3-8). Again, the injury suffered here by APPELLANTS is the denial of right of all candidates to have a level playing field for the office sought. This simply means that all candidates running for the office must be eligible for the office, whether or not other candidates can obtain enough votes to actually win the office. If the likelihood of winning a particular office was the standard applied in order for a candidate to compel his or her opponents to follow the rules, then all actions against a potentially ineligible candidate would have to be based on the latest polling data. If this Court were to adopt OBAMA’S standard for standing in disputes over ineligible rivals, it would lead to absurd and unjust results. For example, if an ineligible rival dispute were to arise in a race like that of the South Carolina Senate race between Alvin Greene and Jim DeMint, where Mr. 6

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Greene has consistently polled very low numbers, then, in such a situation, Mr. Greene would be prevented from bringing an eligibility challenge because he would be unlikely to show that he would prevail if the suit were decided in his favor. As discussed above, a rival candidate has standing to challenge an ineligible rival, and, for that reason, the Court should vacate the dismissal in the court below, and remand the case for further proceedings. III. REDRESSABILITY APPELLANTS, contrary to APPELLEES’ contention, do not seek a remedy requiring “’a do-over’ of the election” (Appellees’ Answering Brief, page 15), as the Constitution provides for a line of succession in situations where the President is unable, or ineligible, to continue performing the duties of the office. As far as APPELLEES’ separation powers argument, if OBAMA is, as APPELLANTS allege, ineligible for the office that he now holds, then he cannot claim a separation of powers protection against any action taken by this Court, because he never lawfully 7

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became President, and is, therefore, not a part of any branch of the federal government. Further, this is not a matter that is subject only to the impeachment power of Congress, because impeachment applies to removing only those Presidents who were eligible for the office and validly elected. If OBAMA was never eligible to serve in the Office of the President, then he cannot be impeached, as he legally has never been President. Additionally, this matter is not whether OBAMA committed an impeachable offense while in office, although that may be true, or whether he subsequently became ineligible for the office, but that OBAMA was ineligible before he was elected and, therefore, is unconstitutionally holding the office of President. IV. POLITICAL QUESTION In attempting to frame this case as a non- judicable political question, APPELLEES rely on the historical purpose of the Electoral College, which was “to permit the most knowledgeable members of 8

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the community to choose the executive of a nation (Appellees’ Answering Brief, page 18, citing Williams v. Rhodes (1968) 393 U.S. 23, 43). Contrary to APPELLEES’ contention, this original purpose is no longer how the Electoral College operates, as the Electors’ discretion as to whom to cast a vote for has been, in at least half of the States, taken away by state statute. Electors now, essentially, perform a ministerial function and are compelled to cast their votes in a particular way or face criminal and/or civil sanctions under various state laws. Since Electors cannot vote in variance to the popular vote in the majority of their respective states, the Electoral College has no authority to render any decision as to the eligibility of a candidate and is, therefore, not a proper forum for deciding a dispute over the qualifications of a candidate for United States President. V. CONCLUSION Based on the forgoing, APPELLANTS respectfully request that this Court reverse the District Court’s order granting RESPONDENTS’ Motion to Dismiss regarding APPELLANTS 9

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Drake and Robinson. APPELLANTS also respectfully request that the Court remand the action for further proceedings in order to determine whether OBAMA fulfills the United States Constitution’s requirements for eligibility for the Office of President of the United States. Dated: October 27, 2010 Respectfully submitted, s/ Gary G. Kreep Gary G. Kreep Christopher P. Tucker UNITED STATES JUSTICE FOUNDATION Attorneys for Appellants, Wiley S. Drake and Markham Robinson

CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure. This brief uses a proportional typeface and 14-point font, and contains 1,647 words.

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CERTIFICATE OF SERVICE I hereby certify that on October 27, 2010 , I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. s/ Chris Avery

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