OFFICE OF STATE ADMINISTRATIVE HEARINGS STATE OF GEORGIA

CARL SWENSON Plaintiff, v. BARACK OBAMA, Defendant.

KEVIN R. POWELL

Plaintiff, v.
BARACK OBAMA, Defendant.

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It is axiomatic in Georgia election law that the right "to hold office is the general

rule, ineligibility the exception." Patten v. Miller, 190 Ga. 123, 139, 8 S.E.2d 757, 768-

69 (1940); Avery, 17o Ga.

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Defendant's Brief on Allocation of Burden of Proof

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202, 204, 152 S.E. 239, 241

250 Ga. 240, 241, 296 S.E.2d 596, 598 (1982); McLendon v. Everett, 205 Ga. 713, 713, 55 S.E.2d 119, 12o (1949). The Georgia Supreme Court declared on several occasions

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that "a citizen may not be deprived of this right [to hold elective office] without proof of

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"to

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JAN 2 3 21)i;

Docket Number: OSAH-SECSTATE CE1216218-60-MALIHI

Docket Number: OSAH-SECSTATE-CE1216823-60-MALIHI

(1930); Westberry v. Saunders,

some disqualification specifically declared by law." E.g., Patten, 190 Ga. at 139, 8 S.E.2d at 769; McLendon, 205 Ga. at 716, 55 S.E.2d at
122.

The present case is different from the situation in Haynes v. Wells, 273 Ga. 106,

108, 538 S.E.2d 430, 433 (2000) where the Georgia Supreme Court held that at the time of qualifying a candidate for office must establish qualifications for office. To qualify in

that election each candidate was required by O.C.G.A. § 21-2-132(e) to provide with the "notice of candidacy with an affidavit stating: . . . [t]hat he or she is an elector of the

county or municipality of his or her residence eligible to vote in the election in which he or she is a candidate." Haynes, 273 Ga. at 108. The Supreme Court ruled that since

O.C.G.A. § 21-2-132(e) "required Haynes to file an affidavit attesting that he was eligible to vote in the fifth district" then the affidavit requirement placed an affirmative obligation on Haynes to establish his qualification for office. There is neither a notice of candidacy filed by the candidate nor a qualification

Presidential Preference Primary ballot. The state executive committee simply lists names that it wishes to have on the preference primary ballot. O.C.G.A. § 21-2-193. Haynes v. Wells only applies where "a candidate must swear by affidavit that they are

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election in which he

`an elector of the county or municipality of his or her residence eligible to vote in the
or she is a candidate.'" 273 Ga. at 107. No such requirement

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process nor an affidavit requirement for a political party to place a name on its

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for the preference primary. Ga. Comp. R. & Regs. r. 616-1-2-.o7, which places the burden of proof on the
O.C.G.A. § 24 14 1

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agency, is not instructive here.

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lies upon the party who is asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential." Plaintiffs assert that President Obama do

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states, "The burden of proof generally

not meet the qualifications for having his name appear on the Presidential Preference

Primary ballot. Given the presumption that the right "to hold office is the general rule, ineligibility the exception," Patten v. Miller, 190 Ga. 123, 139 (1940), plaintiffs should have the burden of proof. Respectfully submitted,

This 23d day of January,

2012

MICHAEL JABLONSKI Attorney for President Barack Obama

Michael Jablonski Georgia State Bar No. 385850

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26o Brighton Road NE Atlanta, Georgia 30309 404.290.2977 michael.jablonski@comcast.net

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OFFICE OF STATE ADMINISTRATIVE HEARINGS STATE OF GEORGIA

CARL SWENSON Plaintiff, v. BARACK OBAMA, Defendant.

Plaintiff, v.
BARACK OBAMA,

Defendant.

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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 the Defendant's Brief on Allocation of Burden of Proof by sending a copy via email addressed to:

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Mark Hatfield <mhatfield@wayxcable.com >

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KEVIN R. POWELL

CERTIFICATE OF SERVICE

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Docket Number: OSAH-SECSTATE CE1216218-60-MALIHI Docket Number: OSAH-SECSTATE-CE1216823-60-MALIHI

This 23d day of January,

2012

MICHAEL JABLONSKI

4lAitiAlatiag0661 7Z-4 Michael Jablonski Georgia State Bar No. 385850

260 Brighton Road NE Atlanta, Georgia 30309 404.290.2977 michael.jablonski@comcast.net

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