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OFFICE OF STATE ADMINISTRATIVE HEARINGS STATE OF GEORGIA DAVID P. WELDEN Plaintiff v. BARACK OBAMA Defendant : : : : : : : : :

Docket Number: OSAH-SECSTATE-CE1215137-60-MALIHI

: OPPOSITION TO DEFENDANT’S MOTION TO DISMISS The Plaintiff, David Welden, respectfully submits this opposition to Defendant’s motion to dismiss.

Statement of Facts For the reasons set forth below, none of the facts asserted by the Defendant are relevant. The only fact relevant to this case is the fact that the Defendant’s father was not a U.S. citizen. This fact has been repeatedly documented and stated by the party opponent, Defendant Obama. This fact is also evidenced by Plaintiff’s exhibit 6, previously submitted with Plaintiff’s pre-trial order and apparently authenticated by Defendant’s citation to this exhibit in Defendant’s “Statement of Material Facts Not in Dispute,” number 7.

Argument and Authority The lengths to which the Defendant goes in order to avoid the one relevant fact is telling. The Defendant asks this Court to interpret Georgia election code in a way that leaves the code in conflict with itself, goes against the plain language of the law, leaves the law without meaning, and conflicts with common sense. He then cites freedom-to-associate precedent to support an 1

assertion that has never been supported by such precedent, and which would nullify election codes in several states. All of these arguments are futile attempts to distract from the undeniable conclusion: Barack Obama is not Constitutionally-qualified to hold the office of President of the United States.

A. Statutory Authority Georgia Election Code states: “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(a). The Defendant claims that this clear code doesn’t apply to Presidential primaries, arguing that such primaries are not elections. See Def.’s Mtn. at 3. This argument is absurd. If the State of Georgia intended Presidential primaries to not be considered elections it would not codify the administration of such primaries within Title 21 of Georgia’s codes, entitled “Election Code.” The Defendant’s argument is an attempt to claim that an early part of Title 21 should be construed against its plain language in order to prevent that section from having an effect on a later section of Title 21. This argument requires an interpretation of law that leaves Title 21 internally conflicting. The Defendant requests this Court to read §21-2-5(a) to mean “Every candidate for federal and state office shall meet the constitutional and statutory qualifications for holding the office being sought, except candidates for President.” The code doesn’t make an exception for Presidential candidates. The Georgia legislature certainly could have included such an exception if they had intended such an exception. They didn’t include such an exception because they didn’t intend one. The Defendant’s argument also rests upon an assertion that §21-2-5(a) addresses “elections” and not “candidates.” However, §21-2-5(a) doesn’t contain the word “election.” It 2

does contain the word “candidate.” More specifically, it applies to “Every candidate…” §21-25(a)(emphasis added). Since the explicit prevails over the implicit, the “Every candidate” language in §21-2-5(a) negates the Defendant’s argument that that section implicitly exempts a special category of candidates. For the Defendant’s argument to make sense the Presidential primary would need to be administered without candidates. However, Georgia Election code specifically requires the political parties to “submit to the Secretary of State a list of the names of the candidates of such party to appear on the presidential preference primary ballot.” §21-2-193(emphasis added). The list of names submitted by the parties to the Secretary of State are “candidates,” in the Presidential primary. Id. §21-2-5(a) applies to “Every candidate for federal office,” and requires them to be constitutionally qualified to hold such office. Id. Therefore, §21-2-5(a) applies to the list of “candidates” submitted by political parties under §21-2-193. 1 Unlike the Defendant’s argument, Plaintiff’s clear-meaning reading of Georgia Election code leaves the code in harmony. Under the Defendant’s interpretation the word “candidate” would mean one thing in one section and would not mean the same thing in another section. According to the Defendant, in one section he is a candidate and in the other section he is not a candidate.

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Contrary to the Defendant’s assertion, nothing in O.C.G.A. §21-2-193 grants the Democratic Party of Georgia the “sole discretion” to determine which candidates will appear on the Democratic Presidential primary ballot. While the Party does have sole discretion to determine which candidates will appear on the list it submits to the Secretary of State, pursuant to §21-2193, the State of Georgia determines which candidates will appear on the ballot. The Defendant’s assertion presumes to place the Democratic Party in the shoes of the State. This bold statement reflects an arrogance regarding the Party’s authority in the election process. The Party doesn’t pay for Georgia’s ballots, or administer its elections. §21-2-193 grants the Party authority to choose candidates for its list. Nothing more. What the State does with that list is up to the State. The Defendant’s presumptuous view of the authority of the Party begins to explain his clearly erroneous interpretation of Georgia code. 3

The Defendant also argues that the “certification” mentioned in §21-2-5(a) refers to O.C.G.A. §21-2-154(a), and therefore the applicability of §21-2-5(a) has not “triggered” prior to the Presidential primary. See Def.’s Mtn. at 3. However, §21-2-5(b) clearly negates this argument. It states in relevant part, “The Secretary of State…may challenge the qualification of any candidate at any time prior to the election of such candidate.” §21-2-5(b)(emphasis added). Since no one has been elected to the office of President of the United States for the term of office beginning in January 2013, today is still “any time prior to the election of such candidate.” §212-5(b) clearly authorizes the Secretary of State to “challenge the qualification of any candidate” for the 2013 Presidential term at any time before the November 2012 general election, regardless of whether any certification has occurred, and regardless of what certification is being referred to in subsection (a). Again, the Plaintiff’s plain-language interpretation leaves Georgia Election code in harmony while the Defendant’s argument requires internal conflict within the same Title of Georgia code. Finally, the Defendant’s interpretation of Georgia code runs against common sense. It cannot be logically argued that the Georgia legislature passed a statute requiring “Every candidate for federal and state office” to meet the constitutional qualifications for office, yet it intended the State to ignore the clear disqualification of a candidate for the highest constitutional office in our country.

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B. Right-to-Associate Precedent Doesn’t Support Defendant’s Motion In his attempt to avoid the only substantive issue presented, the Defendant morphs rightto-associate precedent into a political party’s right to dictate how States’ administer elections. 2 See Def.’s Mtn. at 4-5. The Defendant argues that a political party’s right to determine who will be a member of the party somehow grants the party a Constitutional right to force a State into accepting the party’s decisions. No precedent supports this argument. 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.3 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 present situation. All involved political parties excluding a candidate because the party didn’t want to be associated with the candidate. In every case cited the candidate sued the party and/or state for inclusion on the ballot after being excluded.

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The Plaintiff also questions the Defendant’s standing to personally assert the Constitutional rights of the Democratic Party of Georgia. 3 While right-to-associate precedent has negated some state’s restrictive laws for recognizing political parties, these precedent have not forced states to accept all candidates for appearance on ballots without any screening of such candidates. 5

There are no cases 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 party’s authority above that of the state. This is why no such precedent exists. It is true that some states lack election codes authorizing any state officials to screen candidate selections 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 to not screen candidates. It is the states’ right to decide how to administer its elections. The fact that some states have decided to not protect their citizens from unqualified candidates does not mean that other states don’t have the right to screen candidates. It simply means that some states have left the screening to the political parties. Georgia has determined that it is in the best interest of its citizens to screen candidates prior to placement on the ballot. See §21-2-5. Right-to-associate precedent does not prevent Georgia from protecting its citizens in this manner. C. Right to Associate Doesn’t Negate Georgia Election Law The Democratic Party of Georgia’s Constitutional right to determine its membership coexists with Georgia’s right to govern Georgia. Georgia code does not interfere with the autonomy of the political party’s internal decision making because it does nothing to prohibit the parties from submitting any name to the Secretary of State for inclusion in the Presidential primary. The Party is free to submit Saddam Hussein or Mickey Mouse as their next Presidential candidate. However, Georgia is not required to accept such submissions and waste taxpayer money on ballots for such candidates. Georgia code does not prevent the political parties from submitting any name. Instead the code simply determines what the State does with the Party’s list of candidates after the Party has 6

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 the Party from choosing candidates to submit, in its “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 include the Defendant in its organization. The Party can and did include the Defendant in the Party’s list of candidates. The Party’s rights, however, end there. Its rights cannot force the State to place the Defendant’s name on a ballot after the State determines that the Defendant 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.4 The Defendant’s argument would logically require 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 Defendant’s argument fails. If his argument succeeds, many election codes across the country will need to be re-drafted. D. Defendant’s Conclusion is Offensive to the Constitution The Defendant states that the issue raised by the Plaintiff was “soundly rejected by 69,456,897 Americans in the 2008 elections.” See Def.’s Mtn. at 5. This statement reflects a complete lack of understanding regarding Constitutional protections.

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The Defendant’s belief that the Party somehow owns and has autonomy over the State’s primary election explains why he fails to understand the simple concept set forth here. 7

Contrary to the Defendant’s assertion, voters are not the final arbiters of whether an individual is qualified to hold office. America is a Constitutional Republic, not a democracy without a constitution. In a Constitutional Republic the power of the majority is limited and cannot infringe upon protected rights of a minority. The Constitution is an anti-majoritarian document; meaning that it protects individuals from invasions and usurpations by the majority. Constitutionally protected rights are held inviolate regardless of the majority’s desire to violate them. Without such protections any law enacted by Congress would be valid, even if it denied an individual their right to life, liberty, or property. Without the anti-majoritarian protection of the Constitution, Congress could legalize the killing of all Jews, for example, as was done in World War II Germany. Constitutional requirements are absolute, and must be followed regardless of how popular or unpopular such requirements may be, because they are in place to protect the minority. The Defendant’s presumption that popular vote overrides the Constitution demonstrates his lack of understanding of the Constitution and emphasizes the critical role played by this Court in protecting Americans from a tyrannical majority. Contrary to the Defendant’s statement, a minority of Americans have an absolute right to be protected from a non-natural-born-citizen being elected President. E. Contrary to the Defendant’s Assertion, No Court has Ruled on the Question Presented The Defendant asserts that the issue raised by the Plaintiff has been defeated by “every judicial body ever to have considered it,” citing dozens of cases. See Def.’s Mtn. at 5-6. However, unlike the instant case, every one of the cases cited was based upon an assertion that the Defendant was not born in the United States, or is not a citizen for some other reason.

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The matter before this Court has nothing to do with the birth place of the Defendant, nor does it assert that he is not a citizen of the United States. In fact, limited to this challenged primary election, the Plaintiff will stipulate that the Defendant was born in Hawaii, that the Defendant is a U.S. Citizen, and that the Defendant was Constitutionally-qualified to serve as a U.S. Senator. The Plaintiff makes no assertion regarding the Defendant’s passports, or social security number, or any other fact related to the Defendant, other than the one fact asserted at the beginning of this opposition: that the Defendant’s father was not a U.S. citizen. Contrary to the Defendant’s assertions, the issue presented by the Plaintiff is grounded on one uncontestable fact, and one clear definition from the U.S. Supreme Court. See Minor v. Happersett, 88 U.S. 162, 167 (1875).

F. Substantive Question for this Court Despite all of his attempts to misdirect this Court from the one substantive issue presented, the Defendant has failed to present grounds for dismissal. The Plaintiff respectfully requests that this Court consider his simple yet critically important grounds to prohibit the Defendant from appearing on the Georgia ballot: It is undisputed that President Obama’s father was never a U.S. citizen. To Plaintiffs’ knowledge Mr. Obama has never denied the fact that his father was not a U.S. Citizen, nor has he ever made any statements contrary to this fact. The U.S. Supreme Court has defined “natural-born citizens” as “all children born in a country of parents who were its citizens.” See Minor v. Happersett, 88 U.S. 162, 167 (1875). The Court in Happersett did go on to state that other sub-categories of people may or may not be within the broader term “citizen.” However, it did so only after specifically identifying the narrower category “natural-born citizens.” Id. The Happersett Court clearly understood and 9

established that “citizen” is a much broader term than “natural-born citizens.” Its discussion of “citizen” does not negate or alter its earlier definition of the term “natural-born citizens.” See Id. at 167-168. This precedent has never been questioned by any subsequent Supreme Court. This precedent is binding. Because it is undisputed that Mr. Obama’s father was not a U.S. citizen, the Defendant can never be a natural-born citizen, as that term was defined by the U.S. Supreme Court. Therefore, the Defendant cannot meet the Constitutional requirements to hold the office of President. See U.S. Const. Art. II Section 1.5 Georgia election code requires such a candidate to be stricken from any Georgia ballot. §21-2-5.

Conclusion For the reasons set forth herein, the Plaintiff respectfully requests that this Court deny the Defendant’s motion to dismiss.

_________________________ Van R. Irion Liberty Legal Foundation 9040 Executive Park Dr., Ste. 200 Knoxville, TN 37923 (423) 208-9953 van@libertylegalfoundation.com Attorney for Plaintiff

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Mr. Obama’s place of birth is completely irrelevant to this conclusion. The Plaintiff makes no assertion regarding Mr. Obama’s place of birth. 10

CERTIFICATE OF SERVICE Pursuant to the Order entered in this matter regarding electronic service, I certify that I have served the opposing party in this matter with a copy of Plaintiff’s Opposition Defendant’s Motion to Dismiss by sending a copy via e-mail addressed to: Michael Jablonski Michael.jablonski@comcast.net This the 19th day of December, 2011.

_________________________ Van R. Irion Liberty Legal Foundation 9040 Executive Park Dr., Ste. 200 Knoxville, TN 37923 (423) 208-9953 van@libertylegalfoundation.com Attorney for Plaintiff

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