What's Your Evidence?

The Birther Lawsuits: Status & Summary

This Blog was first published in August 2008, when the first "birther" case was filed by Mr. Philip Berg in Federal District Court of the Eastern District of Pennsylvania. It was initially published to fill a void by providing a fact-based analysis of the various birther theories.

Since then, more than 200 additional "birther" cases have been filed. At least 50 such cases have been dismissed, including many cases that the courts dismissed sua sponte, before Defendants were required to respond. Additionally, many new "shocking discoveries" have splattered over the www in the past year, with promises that this time, the "smoking gun" has been found that will prove the birthers right. To date, those believing such promises have been sorely disappointed.

Thankfully, over the last many months, several other great blogs have been published, which debunk birther myths and examine new "evidence" and legal theories offered by the birthers.

Because this blog was initially started to fill a void that no longer exists thanks to these other great blogs, we have discontinued updates on the various birther theories, although we will continue to maintain the research previously published here - see below for an outline of these issues. However ...

For the latest developments, we recommend ...

Subscribe to Jack Ryan's Scribd page to get copies of all the birther court filings and other relevant documents.

Check out Fogbow for the latest birther news.

Blogs:  There are many good ones, and we worry that we might not have named them all, so please let us know if we forgot to list one, but these are our top four choices.

Obama Conspiracy Theories:  This is probably the most comprehensive and current blog addressing various birther theories. Doc Conspiracy addresses much of the information here -- and much much more -- in magazine-syle articles that are easy to read and understand.

Native & Natural Born Citizenship Explored:  This is another blog that provides frequent updates and information on various birther claims. NBC has focused a lot on the military birthers and has some great stuff.

Bad Fiction:  This is the best blog for information on the community of birthers. The blogger provides "this week in birthers" summaries of all the various activities by the birther attorneys, bloggers, and other commentors.

Barackryphal: This blog focuses on a few discreet issues - but the blogger "breaks news" with terrific original research. One primary focus of research on this blog is the claims of and person behind the "Ron Polarik" COLB forgery claims.

Oh For Goodness Sake: This blog combines breaking news in birther land with hilarious commentary on the birther cast and crew.

Thanks so much for all your support!!!

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So far, we have considered the following claims set forth in Mr. Berg's pleadings:

BIRTH CERTIFICATE / FORGERY CLAIMS

• Was Obama's COLB Forged? Did Obama Post a Forged COLB on his Campaign's Website? (Updated 12/30)
  
  
  • More - Polarik's Claims (Updated 12/29)
    
    
  • More - Reports that Obama's COLB is Authentic (Updated 12/30)
    
    
  • Is Factcheck.org in the tank for Obama?  Is Factcheck.org owned by the Chicago Annenberg Challenge?

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KENYA-RELATED CLAIMS

• Was Obama Born in Kenya? Is Obama a Kenyan Citizen?
  
  
• Was Obama Born in Kenya? (Part 2 - Grandmother/Family Claims) (Updated 1/6)

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INDONESIA-RELATED CLAIMS

• Did Obama use an Indonesian Passport to Visit Pakistan? (Updated 1/26)
  
  
• Did Obama Become an Indonesian Citizen when His Mother, Ann Durham, Married Lolo Soetoro, and Moved to Indonesia? 

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CANADIAN BIRTH CERTIFICATE CLAIMS

• Does Obama have a Canadian Birth Certificate? (Note:  Berg does not discuss this claim in his Proposed Amended Complaint.)

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ILLINOIS BAR ADMISSION CLAIMS

• Did Obama Lie on his Illinois ARDC Lawyer Registration Form?

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BERG'S STANDING PROBLEM

• Mr. Berg's Standing Problem 
  
  
• Berg's Standing Problem - Part II 

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 THE NATURAL BORN CITIZENSHIP CLAUSE

1/23 Update: SCOTUS & "Natural Born Citizen":  A compendium of U.S. Supreme Court cases using the term "natural born citizen" in any context) - in light of claims that "native-born" citizenship or "born a US citizen" per the 14th Amendment means something different than "natural born" citizenship per Article II. 

1/5 Update: The "Natural Born Citizenship" Clause:  A compendium of cases and legal scholarship on meaning of "natural born citizenship" - in light of claimsthat a native-born US citizen who has "dual citizenship" at birth does not qualify as a "natural born" citizen under Article II.

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(Note:  If you are aware of additional evidence, that either supports or refuts the allegations, please submit it through a Comment, and we will update this information accordingly! Thank you!)

Berg v. Obama Citizenship Lawsuit: Status & Summary (Archive Link)

We retained this post because multiple other sites have linked ot it. 

However, we've updated the Status & Summary HERE.

Berg's Standing Problem - Part II

(Note:  Berg's complaint has been dismissed, but he is appealing in both the Third Circuit and the Supreme Court.  See here for current status of his appeals.)

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Earlier, we discussed Berg's Standing Problem - here.

10/4 Update: On Monday, Sept. 29, Mr. Berg filed his Opposition to Motion to Dismiss. In his Opposition, Berg first attempts to distinguish Hollander - one of the cases against McCain, which the court dismissed on lack of standing. Second, he asserts five "sets of laws" to argue that he has standing.

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An Aside:  We've received comments asking: "Who would have standing to sue if a voter does not?" and "If the courts can't decide this issue, who can? For a great answer to these two questions, we found the following very helpful:

• Robinson v. Bowen, discussed in our first post re: standing, here, and
• Daniel P. Tokaji, Commentary, The Justiciability of Eligibility: May Courts Decide Who Can Be President?, 107 Mich. L. Rev. First Impressions 31 (2008).

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DISCLAIMER:  The information provided below is information found or reported to us to date, but we wish to make clear that we are not providing independent legal analysis on these issues. If and when we find a published report of legal analysis from a qualified attorney, we will post that information.

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Berg's Legal Argument		Pleading Citation(s)	Law Cited in Pleadings
A	"This case is easily distinguishable from Hollander v. McCain, 2008 U.S. Dist.LEXIS 56729 (D.N.H. 2008)..."	Opposition to Motion to Dismiss at 15.	Hollander v. McCain
B	Plaintiff has Standing pursuant to 5 United States Code. §702	Opposition at 16.	5 U.S.C. § 702
C	Plaintiff has Standing pursuant to FEC v. Akins, 524 U.S. 11 (1998)	Opposition at 17.	FEC v. Akins, 524 U.S. 11 (1998)
D	Plaintiff has Standing Pursuant to 8 U.S.C. §1481(b)	Opposition at 21.	8 U.S.C. § 1481(b)
E	Plaintiff has Standing under 5 U.S.C. §552(B)	Opposition at 23.	5 U.S.C. § 552(B)
F	Plaintiff has Standing pursuant to 28 U.S.C. §1343, Civil Rights and Elective Franchise	Opposition at 24.	28 U.S.C. § 343
G	Plaintiff has Standing pursuant to Federal Question Jurisdiction	Opposition at 25.	28 U.S.C. § 1331

Let's look at these arguments.

A	Distinguishing Hollander
Berg asserts: "This case is easily distinguishable from Hollander v. McCain, 2008 U.S. Dist. LEXIS 56729 (D.N.H. 2008), where the Court held that the Plaintiff did not have standing based on the alleged harm he would suffer should McCain be elected President despite his alleged lack of eligibility under the natural born citizenship clause, Art. II, § 1, cl. 4." Bert then outlines four "factors" he alleges the Hollander court relied upon in its ruling. Hollander (per Berg) Berg Comparison The Hollander court, per Berg, held that McCain's candidacy for the presidency, whatever his eligibility, was "hardly a restriction on voters' rights" because it in no way prevented them from voting for somebody else in the primary election. Here, Berg argues, Obama's candidacy for the presidency in the general election as opposed to the primary elections prevents citizens from voting for Hillary Clinton despite her immense popularity Essentially, Berg appears to allege that the "difference" is that Hollander involved the primaries, while Berg involves the general election. However, Hollander expressly made the "general election argument --  [Hollander argues that] This would lead to the disenfranchisement of [Hollander] and 100 million additional voters in the general presidential election. (Hollander Order at 6) -- and the Hollander court expressly rejected it. There is, thus, no difference between these two claims. The Hollander court, per Berg, held that the harm claimed "standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance." Here, Berg argues, "the harm Plaintiff suffered is particular to him because he has been denied the constitutional right to vote for an eligible candidate..." Berg's argument is the exact same argument that Hollander made --  Hollander, however, argues that the harm to him from McCain s candidacy transcends simply the right to be governed by a constitutionally qualified President; Hollander claims it also impacts his right to vote, both in the New Hampshire Republican Primary and the general election. (emphasis added). (Hollander Order at 10-11) -- and that the Hollander court rejected. There is, thus, no difference between these two claims. The Hollander court, per Berg, held that Plaintiff did not "allege personal injury fairly traceable to the Defendant's allegedly unlawful conduct." Here, Berg argues, "Plaintiff's claims are traceable to the Defendants' unlawful behavior in failing to disclose information to which voters are entitled." Two issues: 1. In holding that Hollander failed to allege personal injury fairly traceable to the Defendant's allegedly unlawful conduct, the Hollander court wad addressing Hollander's claim that he would be disenfranchised if McCain were actually elected, and then subsequently removed due to his lack of eligibility. After noting that any such alleged injury would occur not from McCain/RNC actions, but from whomever thereafter sought to remove McCain from office.  "[T]he theory does not establish Hollander s standing because it does not  allege personal injury fairly traceable to the defendant s allegedly unlawful conduct, Allen v. Wright, 468 U.S. 737, 751 (1984), but to the conduct of those--whoever they might turn out to be--responsible for ultimately ousting McCain from office. Indeed, McCain and the RNC are trying to achieve the opposite. Hollander Order at 15-16. In other words, the Court was addressing Hollander s argument re: injury in the event that McCain was actually elected. (Berg, argues comparable injuries in the event that Obama is elected and thereafter determined ineligible  although a bit more dramatic: unrest and violence could occur.) Second: Mr. Berg states that he, as a voter, is "entitled" to the information he seeks. However, as he cites no law to support this contention. Moreover, as noted at the top of this post, in a recent interview, Mr. Berg essentially admitted that no law exists granting him that right: "The real outrage is that there's nothing in our system that provides that a candidate must provide that his qualifications are true and correct before he or she runs, and that safeguard should be put into our system by law," See DNC steps in to silence lawsuit over Obama birth certificate, World Net Daily, Oct. 4, 2008. The Hollander court, per Berg, held that McCain was "unquestionably an American citizen." Here, Berg argues, Defendants have failed to show that Mr. Obama is "unquestionably an American citizen." The Hollander court referenced McCain's general citizenship in the "Background" of its opinion - because it was uncontested by the parties.  However, that uncontested fact was not a "factor" considered by the court in its holding. See Hollander Order.
Conclusion: Berg failed to distinguish Hollander.
As summarized above, Berg's failed to explain how the factors considered by the Hollander court do not apply to his case. Instead, the relevant factors are virtually identical.

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B	Plaintiff has Standing pursuant to 5 United States Code. §702
In this section, Berg asserts standing, based on the Federal Administrative Procedure Act. However, 5 USC § 702 provides as follows: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. .... (Emphasis added.) Read the provision yourself here: 5 USC § 702. See also 5 U.S.C. § 701 (1), which explains that "agency' means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include -... (E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them; ....."
Conclusion: Berg fails to explain why or how provisions of the Federal Administrative Procedure Act applies to a Presidential Candidate (Obama) or National Political Party (DNC); and fails to demonstrate that he followed required procedures to obtain standing to sue the FEC.
As highlighted in the quoted text above, to the extent that this provision applies at all to the case, it could only apply to the FEC, and not to Obama or the DNC. Because neither Obama, as candidate, nor the DNC are "federal agencies" subject to the Federal Administrative Law Act.

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C	Plaintiff has Standing pursuant to FEC v. Akins, 524 U.S. 11 (1998)
Berg also asserts standing pursuant to FEC v. Akins, 524 U.S. 11 (1998) ("Atkins"). However, Akins  like 5 USC § 702, applies to federal agencies. Berg fails to explain how or why this case does - or should - apply to presidential candidates or national political parties. Read the case yourself here: FEC v. Akins Additionally, in Atkins, plaintiff sued after first filing an official complaint with the FEC, and obtaining an order from the FEC. See Atkins (PDF file at pp 3-6) for a discussion of the FEC proceedings. Here, Berg has not alleged that he has filed a complaint with the FEC, or that the FEC issued an order dismissing his complaint. As stated in Atkins: "Congress has specifically provided in FECA that "[a]ny person who believes a violation of this Act . . . has occurred, may file a complaint with the Commission. §437g(a)(1). It has added that "[a]ny party aggrieved by an order of the Commission dismissing a complaint filed by such party . . . may file a petition" in district court seeking review of that dismissal. §437g(8)(A)." FEC v. Akins, (PDF p. 7). Berg has not demonstrated that he (a) filed a complaint with the FEC or that (b) the FEC dismissed that complaint.  Thus, he hasn't met the test as enunciated by the Atkins Court, even if the law set forth in that decision otherwise would grant him standing to sue the FEC. Additionally, the Atkins court stated: "[T]his Court has previously held that a plaintiff suffers an "injury in fact" when the plaintiff fails to obtain information which must be publicly disclosed pursuant to a statute." FEC v. Akins, (PDF p. 7). However, Berg has not yet explained what statute requires disclosure of these materials.  Indeed, in a recent interview, Berg admitted that there is no such statute, saying "The real outrage is that there's nothing in our system that provides that a candidate must provide that his qualifications are true and correct before he or she runs, and that safeguard should be put into our system by law," See DNC steps in to silence lawsuit over Obama birth certificate, World Net Daily, Oct. 4, 2008.
Conclusion: Berg fails to explain why or how FEC v. Akins applies to a Presidential Candidate (Obama) or National Political Party (DNC); and fails to demonstrate that he followed required procedures to obtain standing to sue the FEC.
See above.

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D	Plaintiff has Standing Pursuant to 8 U.S.C. §1481(b)
Berg also asserts standing to sue under 8 U.S. C. §1481(b), which is a provision in Title 8, Chapter 12 of the U.S. Code, addressing immigration and nationality. However, 8 U.S. C. §1481 does not address standing of a private citizen to sue another person at all.  Rather, subsection (a) discusses the "rules" re: voluntary loss of citizenship; while subsection (b) addresses the appropriate burden of proof in any action regarding loss of citizenship. Read the statute yourself, here: 8 USC § 1481. In fact, the only provision we can find in Title 8, Chapter 12, addressing who can sue, and how, is in 8 USC § 1503. That provision provides the remedy (against federal agencies) that apply to a person denied rights on the grounds that s|he is not a national.  The law simply doesn't permit one person to sue another person to challenge his|her citizenship.
Conclusion: Berg fails to explain why or how 8 U.S.C. §1481(b) grants him standing to challenge any person's citizenship or to sue the DNC or FEC.
See above.

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E	Plaintiff has Standing under 5 U.S.C. §552(B)
Next, Berg asserts that he has standing to sue under 5 U.S.C. 552(B). However, once again, this statute, like 5 U.S.C. § 702, discussed above, applies to federal agencies. Section 552 addresses FOIA requests  i.e., Freedom of Information Act requests. Specific procedures have been implemented for citizens to submit FOIA requests, requesting information such as the following (from § 552(a)(2) (A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases; (B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; (C) administrative staff manuals and instructions to staff that affect a member of the public; (D) copies of all records, regardless of form or format, which have been released to any person under paragraph (3) and which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; and (E) a general index of the records referred to under subparagraph (D)... Read the statute yourself, here: 5 U.S.C. § 552. Once again Berg fails to explain why or how the Freedom of Information Act, which applies to federal agencies, should apply to a Presidential Candidate (Obama) or a national political party (the DNC). Additionally, Berg has submitted no evidence that he made a proper FOIA request for specific information from the FEC, or that it failed to provide any information properly requested.
Conclusion: Berg fails to explain why or how provisions of the Federal Freedom of Information Act applies to a Presidential Candidate (Obama) or National Political Party (DNC); and fails to demonstrate that he followed required procedures to obtain standing to sue the FEC.
See above.

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F	Plaintiff has Standing pursuant to 28 U.S.C. §1343
Berg also asserts standing under 28 U.S.C. § 1343. This statute provides that federal district courts have jurisdiction to hear cases: "(1) To recover damages for injury to his person or property, or because of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section 1985 of Title 42; (2) To recover damages from any person who fails to prevent or to aid in preventing any wrongs mentioned in section 1985 of Title 42 which he had knowledge were about to occur and power to prevent; (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; (4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote." Read the statute yourself here: 28 U.S.C. § 1343. We think this "begs the question." The issue is not whether the federal court has jurisdiction to hear such a case, but whether Berg has demonstrated standing to sue under the statute. In any event, Berg fails to identify what "Act of Congress" grants the protection he seeks - i.e., what statute authorizes courts to require candidates to turn over the multifarious types of information contained in Berg's discovery requests, which you can review here. Indeed, as noted above, Berg admitted that there is no such statute, saying: "The real outrage is that there's nothing in our system that provides that a candidate must provide that his qualifications are true and correct before he or she runs, and that safeguard should be put into our system by law," See DNC steps in to silence lawsuit over Obama birth certificate, World Net Daily, Oct. 4, 2008.
Conclusion: Berg fails to identify any law that requires candidates to disclose the information he seeks to voters and, indeed, has publicly admitted that there is no such statute.
See above.

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G	Plaintiff has Standing pursuant to Federal Question Jurisdiction - 28 U.S.C. § 1331
Finally, Berg asserts standing pursuant to 28 U.S.C. § 1331. That statute provides: "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Read the statute yourself here: 28 U.S.C. § 1331. Again, we're pretty sure that this begs the question. The district court has jurisdiction over all such actions. That is a completely separate issue from whether an individual person, with a particular claim, has standing to sue under whatever law s|he identifies. Additionally, Berg cites to Osborn v Bank of the United States, 22 US 738 (1824) and Verlinden BV v Central Bank of Nigeria, 461 US 480 (1983) to support what, we're not sure. Note, however, that in both Osborn and Verliden, the court specifically referenced comprehensive statutory schemes passed by Congress when finding that there was a justiciable federal question. Thus, it is difficult to see how either Osborn or Verlinden are remotely applicable to the case at issue, given that Berg appears to admit that: "There are no laws which specifically delegate whose responsibility it is to carry the burden of verifying the eligibility of a President. ....." See Opposition at 25. And, once again we note that Berg has publicly admitted that there is no such statute, in an interview with World Net Daily.  See DNC steps in to silence lawsuit over Obama birth certificate, World Net Daily, Oct. 4, 2008.
Conclusion: Berg fails to identify any Constitutional provision, law, or treaty provision which grants him standing to demand the information he seeks. Indeed, he has publicly admitted that there is no such statute.
See above.

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Mr. Berg's Standing Problem

(Note:  Berg's complaint has been dismissed, but he is appealing in both the Third Circuit and the Supreme Court.  See here for current status of his appeals.)

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9/24 Update: As previously noted,

"An Aside:  It bears mentioning that Mr. Berg has a "standing" problem. The upshot is that in order to bring a complaint on constitutional grounds, the plaintiff must have "standing" to sue, which means that s|he must allege an "injury in fact" that bears a relation to the defendant's conduct, and for which a judicial decision will address the injury. Courts have consistently held that voters do not have standing to sue on the grounds that a candidate is ineligible for the position for which s|he is running."

This update has two parts: 

1. Obama/DNC File Motion to Dismiss on Standing Grounds (and other grounds)

First, as expected, Sen. Obama and the DNC filed a motion to dismiss Berg's complaint today. The motion is not yet avilable on Justia, but we expect it to be uploaded there shortly. In the meantime, America's Right has a good summary and a link to a copy of the motion here.

In short, Sen. Obama and the DNC allege that under well-settled precedent, Berg lacks standing to sue, for the same reaons that the court in Hollander v. McCain dismissed the case challenging McCain's eligilbility earlier this year (discussed below).

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2. Recent Cases Addressing the Same Issue

Second, we were informed that another federal court also has considered this issue, in another case brought to challenge Senator McCain's qualifications for the presidency. We are revising this post to include information from both of those cases.

Robinson v. Sec'y of State et al

Hollander v. McCain et al

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Robinson v. Sec'y of State et al, C 08-03836 WHA (N.D. Ca. D.Ct.)

Pleadings available here.

The Complaint

In Robinson, plaintiff sued in his capacity as Presidential Elector and Chairperson-Elect of the American Independent Party, challenging John McCain's eligibility to serve as president. According to the complaint, McCain is not a "natural born Citizen" because he was born in the Panama Canal Zone (to American parents). Thus, McCain is not eligible to hold the office of President under Article II, § 1 of the Constitution. To review the entire complaint, see here (PDF).

The Dismissal of the Complaint - available here (PDF).

The Northern California federal district court dismissed this case on the grounds that Mr. Robinson lacks standing to sue.

According to the court, the Constitution vests Congress -- not individual voters, or even opposing candidates -- with the final authority re: the qualifications of the Presidency.:

Article II prescribes that each state shall appoint, in the manner directed by the state’s legislature, the number of presidential electors to which it is constitutionally entitled. The Twelfth Amendment prescribes the manner in which the electors appointed by the states shall in turn elect the president:

“[t]he electors shall meet in their respective states and vote by ballot for President and Vice-President . . . and they shall . . . transmit [their votes] sealed to the seat of the government of the United States, directed to the President of the Senate; — The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”

Federal legislation further details the process for counting electoral votes in Congress. 3 U.S.C. 15. Section 15 directs that Congress shall be in session on the appropriate day to count the electoral votes, with the President of the Senate presiding. It directs that designated individuals shall open, count and record the electoral votes, and then present the results to the President of the Senate, who shall then “announce the state of the vote.” Ibid. The statute provides a mechanism for objections then to be registered and resolved:

“[e]very objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made . . . shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision.”

Ibid. The Twentieth Amendment further provides,

“if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be elected, and such person shall act accordingly until a President or Vice President shall have qualified.”

It is clear that mechanisms exist under the Twelfth Amendment and 3 U.S.C. 15 for any challenge to any candidate to be ventilated when electoral votes are counted, and that the Twentieth Amendment provides guidance regarding how to proceed if a president elect shall have failed to qualify. Issues regarding qualifications for president are quintessentially suited to the foregoing process. Arguments concerning qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress. The members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates. Therefore, this order holds that the challenge presented by plaintiff is committed under the Constitution to the electors and the legislative branch, at least in the first instance. Judicial review — if any — should occur only after the electoral and Congressional processes have run their course. Texas v. United States, 523 U.S. 296, 300–02 (1998)."

Order Dismissing Complaint at 4-5 (PDF).

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Hollander v. McCain et al, Civil No. 08-cv-99-JL (N.H. D.Ct.).

Pleadings available here.

The Complaint

As with Robinson, the Hollander, plaintiff also challenged Sen. McCain's eligibility to serve as President of the United States, due to his birth in the Panama Canal Zone (to American parents).  However, Hollander filed the case on his own behalf as a citizen/qualifed voter of the United States. To review the entire complaint, see here (PDF).

The Dismissal of the Complaint - available here (PDF).

The New Hampshire federal district court dismissed this case on the grounds that Mr. Hollander lacks standing to sue. As the court noted, "So-called  Article III standing has three requirements: (1) the plaintiff has suffered  an injury in fact, (2) that injury bears a causal connection to the defendant s challenged conduct, and (3) a favorable judicial decision will likely provide the plaintiff with redress from that injury.

The court recognized 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 11.

However, the court also recognized that "that notion of "competitive standing" has never been extended to voters challenging the eligibility of a particular candidate."  Id..  Thus, the court continued:

"So voters have no standing to complain about the participation of an ineligible candidate in an election, even if it results in the siphoning of votes away from an eligible candidate they prefer. See id. As Gottlieb reasons, only the eligible candidate, or his or her political party, can claim standing based on that injury.
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McCain's candidacy for the presidency, whatever his eligibility, is "hardly a restriction on voters' rights" because it in no way prevents them from voting for somebody else. In fact, Hollander alleges that he did just that in the New Hampshire Republican primary."

Order Dismissing Complaint at 12-13 (PDF).

After discussion (and rejection) of other standing claims, the court concluded:

"... Hollander remains free to cast his vote for any candidate he considers eligible, including by writing in whichever Republican candidate he believes should be nominated instead of McCain, and to have that vote counted just as much as those cast for the party's official nominee, so his right to the franchise remains intact. See Reynolds v. Sims, 377 U.S. 533, 555 (1964) (defining right as "to vote freely for the candidate of one's choice" without "debasement or dilution of the weight of a citizen's vote"). Difficult choices on Election Day do not translate into judicially cognizable injuries.

This is not to demean the sincerity of Hollander's challenge to McCain's eligibility for the presidency; as discussed supra Part II, that challenge has yet to be definitively settled, and, as a number of commentators have concluded, arguably cannot be without a constitutional amendment. What is settled, however, is that an individual voter like Hollander lacks standing to raise that challenge in the federal courts."

Id at 17-18. (PDF)