Second Eligibility-Related Action Pending Before U.S. Supreme Court Weathers Procedural Roadblocks

After being denied, dismissed and otherwise turned back in the Superior Court of New Jersey, Appellate Division, and the New Jersey Supreme Court, retired lawyer and professional poker player Leo Donofrio is taking the ultimate gamble and bringing his eligibility-related action before the United States Supreme Court. Donofrio, however, alleges that he has already been dealt a poor hand.

THE CASE

In his action filed against New Jersey Secretary of State Nina Mitchell Wells, Donofrio contends that Wells has not fulfilled her duty as Secretary of State to independently verify the constitutional qualifications of the presidential candidates before placing them on the ballot in the Garden State. Specifically, Donofrio notes in the brief accompanying the Application for Emergency Stay filed with the U.S. Supreme Court, Wells was required by N.J.S.A. 19:13-22 to make a statement in which she certifies and signs off on the names of the candidates on the ballots. The statute, in relevant part with emphasis added:

The Secretary of State, not later than eighty-six days before any election whereat any candidates nominated in any direct petition or primary certificate of nomination or State convention certificate filed with him are to be voted for, shall make and certify, under his hand and seal of office, and forward to the clerks of the several counties of the State a statement of all such candidates for whom the voters within such county may be by law entitled to vote at such election.

According to Donofrio, the underlying issue at the heart of his action is the word “born” in Article II, Section 1 of the U.S. Constitution, which of course states in part that only natural-born citizens can be eligible to serve as president of the United States. “The status required by Article 2, Section 1, must be present ‘at birth,’” Donofrio wrote on his Web page. “To be a ‘natural born citizen’ there must be nothing unnatural about your citizenship ‘at birth.’ Natural, in this context, means to be unencumbered by the laws of any other nation.”

That, he says, is the foundation for his allegations that President-elect Barack Obama is not eligible to serve as president.

“My argument is much more simple to prove and understand,” Donofrio writes, obviously referencing the lawsuit filed by Philadelphia attorney Philip Berg, also currently in the hands of the U.S. Supreme Court. “Obama’s father was a Kenyan national and so, regardless of where Obama was born, he was ‘at birth’ subject to the laws of both the United States and of Kenya and as such he is not a natural born citizen of the United States and cannot hold the office of president.”

Because of his interpretation of the Natural Born Citizen clause, Donofrio’s legal action does not stop with Obama. For that reason, he told America’s Right over the telephone yesterday in a 20-minute telephone conversation, his legal challenge is, in fact, “a non-partisan suit.” John McCain, he says, was born in Panama. Socialist Workers Party candidate Roger Calero, who appeared along with his party in one form or another on the ballot in at least eight states, was born in Nicaragua. And, says Donofrio, the question of Barack Obama’s birthplace has not been fully answered, but is in fact irrelevant because of Obama’s Kenyan father.

According to Donofrio, the strength of his case lies not only in its simplicity, but in his avoidance of the standing issues which have bogged down similar suits across the country. Donofrio, in fact, insists that he has standing to sue Secretary of State Wells as a New Jersey citizen, and notes that his standing was not challenged by the state Attorney General’s office in their reply brief filed on behalf of Wells, or by the Hon. Jack Sabatino in his five-page opinion and order denying his request for relief in the New Jersey Appellate Division.

PROBLEMS AT THE SUPREME COURT

While the issue of standing has not necessarily proven to be a hurdle, according to Donofrio, the problems he has encountered, however, were with the stay clerk in the United States Supreme Court. Donofrio traveled to Washington, D.C. and filed the Application for Emergency Stay with the Court at 3:33 p.m. on Monday, Nov. 3. He insists that he was assured by the stay clerk that the Application would be promptly delivered to Justice Souter for review, noting that such procedure is required by Rule 22(1) of the United States Supreme Court Rules.

“Rule 22(1) clearly states that any application addressed to a particular Justice will be filed with the clerk and transmitted promptly to the Justice in question if that Justice has authority to grant the relief being sought,” Donofrio said. “Now, while I didn’t expect Justice Souter to grant the application, Rule 22(4) states that denial of a stay allows for resubmission to a Justice of your choice, and I was ready to resubmit it to Justice Thomas.”

Donofrio insists that he received no word back from the stay clerk on Tuesday, Election Day, and it wasn’t until Thursday, Nov. 6 that he was informed by the clerk that the Application was never delivered to Justice Souter “because he, the stay clerk, didn’t feel that it was an appropriate Application” and felt as though Donofrio should have filed a Petition for Writ of Certiorari.

“I was disgusted,” Donofrio told America’s Right. “It wasn’t his job to play Supreme Court justice. He’s not there to interpret the law, he’s there to accept the filings and pass them along to the proper Justice. Instead, this stay clerk basically made a substantive judgment of law and denied my application on his own.”

Finally, Donofrio says, after repeatedly trying to persuade him to “just drop it,” the stay clerk docketed the case, but initially did so erroneously, docketing it as an “Application for injunction pending the filing and disposition of a Petition for Writ of Certiorari” instead of an Application for Stay. Filing merely for an injunction, Donofrio argues, does not bring with it expedited review, while a Stay is “entitled to the most expedited review the Supreme Court has to offer.”

On Friday, Nov. 7, after much protest from Donofrio, the stay clerk did change the docket entry to reflect that a Stay had indeed been filed on Monday, Nov. 3. However, Donofrio says, the docket suddenly reflected also that Justice Souter had denied the Application for Emergency Stay on Thursday, Nov. 6 when the first erroneous docket had not shown any such decision had been made.

“How strange, I thought, that almost immediately after the docket was changed, Justice Souter’s decision was shown on there,” he said.

Donofrio called the incidents “unorthodox” and mentioned that his case has been improperly “stopped in its tracks.” The same laws apply all around, he says, to Obama just as it would have applied to McCain if he had prevailed last week, just as it applies to Roger Colera notwithstanding his dismal chances of victory. Regardless, Donofrio maintains that his motives were pure, and just wants to have his case heard on its merits.

“In filing this, I wasn’t looking for publicity,” he said. “I wasn’t looking for my name in the papers, I wasn’t looking for donations or money. I was merely looking for the courts to uphold our laws and the guidelines set forth in our constitution.”

COMMENTARY

Over the past few months, in covering the lawsuit filed by Philip Berg against Barack Obama, I have tried to be as fair and objective as I could be in spite of my political leanings, doing my level best with what rudimentary legal knowledge I possess to explain in fairly common terms the arguments of those on both sides of the action. While Mr. Donofrio was certainly very nice and seemed very level-headed on the telephone, I would be remiss if I did not similarly play Devil’s Advocate here where necessary.

Before getting into potential problems with his line of thinking, I must admit that Donofrio was absolutely correct in stating that the stay clerk was bound by duty to expeditiously deliver the Application for Emergency Stay to Justice Souter, and in not doing so, that clerk could very likely be subject to administrative repercussions. Furthermore, while the stay clerk could very well have been right to inform Donofrio that a Petition for Writ of Certiorari was required if that were to be the eventual result, he should have processed the Application correctly nonetheless. Donofrio was correct in stating that the stay was treated as a petition for certiorari in Bush v. Gore, as it indeed was treated as such on December 9, 2000 – however, it was done so with the understanding that the petition would soon follow, and that the eventual petitioner would likely win.

From Justice Scalia in the unusual spectacle of a publicly aired internal disagreement on the issue of treating the stay as a petition for writ of certiorari:

Though it is not customary for the Court to issue an opinion in connection with its grant of a stay, I believe a brief response is necessary to JUSTICE STEVENS’ dissent. I will not address the merits of the case, since they will shortly be before us in the petition for certiorari that we have granted. It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success.

On that Saturday in December eight years ago, the Court granted the stay and did, in fact, treat it as a petition for certiorari. The Court did so because, according to Justice Scalia, it felt that Bush was likely to succeed, and that the failure to stay the election could lead to irreparable harm. Also from Scalia’s opinion on the stay:

The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.

Certainly, Scalia’s perspective that counting votes of questionable legality could lead to irreparable harm suffered by the nation as a whole suggests that Donofrio’s action could in fact be heard and could possibly prevail. However, the case would have to be heard on its merits, and while I like the overall tone of his substantive arguments, I fear that is where Donofrio’s case falters a bit.

First, Donofrio provides no common law support whatsoever to his interpretation that the word “natural,” in the context of Article II, Section 1, means as he maintains it does, “unencumbered by the laws of any other nation.” While he may very well be right in arguing that Barack Obama is America’s first president born with dual citizenship, according to Lawrence Solum’s 2008 commentary, Originalism and the Natural Born Citizen Clause (reviewed here at America’s Right in early October), there is currently no clear understanding of our founders’ original intent with regard to the Natural Born Citizen clause. Now, of course, there may be a clean slate in terms of interpretation, and this indeed would be a case of first impression in that regard, but it would nonetheless behoove Donofrio to provide even a smattering of support as his interpretation of "natural" and "born" does run to the heart of his claim that the Secretary of State failed to honor her obligations with regard to balloting.

Secondly, United States law clearly provides now—as it did in August of 1961—that an individual born in the United States is both a “natural born citizen” and “subject to U.S. jurisdiction.” If that child was born in the United States, the nationality of that child’s parents has no impact whatsoever on his status as a natural born citizen of the United States of America, dual citizenship be damned; this, of course, is at the heart of the debate over “anchor babies” and illegal immigration. Nevertheless, Donofrio suggests that it doesn’t matter what Obama’s birth certificate says because his father was a Kenyan national, but in fact it does. If Obama was born in Honolulu as he maintains (I’d still like to see a long-form birth certificate, of course), he would be considered a natural born citizen.

Thirdly, characterizing Barack Obama’s father as a Kenyan citizen could be considered incorrect. Technically, at the time of our president-elect’s birth in 1961, Kenya was a colony of the United Kingdom. It was not until two years later that the Kenya we know today was born and declared independent from the U.K. Still, even if Barack Hussein Obama, Sr. was a U.K. citizen, his son would still be considered natural born if he were indeed born in Honolulu.

Finally, Donofrio could very well have misread the New Jersey statute in question and at the very heart of his case against Secretary of State Wells. After all, “by law entitled” could be a reference to the voters and not the candidates, a question of whether the voters are eligible to mark the ballots in question, not whether the candidates have a right to be on there. If that is how the statute is to be construed, the case fails, as the matter at hand is not necessarily presidential eligibility but rather the Secretary of State’s purported failure to live up to her statutory obligations. Donofrio, of course, appears to feel otherwise, and I do understand where he comes from.

“There are various statutes within the code which govern the citizens as to voting, but this isn’t one of them,” he wrote in the brief accompanying the U.S. Supreme Court filing. “The statute isn’t about suffrage. It commands the Secretary of State to protect voters.”

All in all, Leo Donofrio makes some compelling arguments and certainly presents a different perspective on the proceedings we’ve seen from Philip Berg and others. I am extremely interested to see how this matter is treated by Justice Thomas, especially considering Justice Scalia's words in the opinion accompanying the granting of the stay in Bush v. Gore.

Should this case not work out, I do not feel that all is lost, either. Personally, despite my frustration that so many unanswered questions remain as to Barack Obama’s background and campaign finance records, I am optimistic that his election could actually be good for the United States of America, much in the same sense that surviving a serious motor vehicle accident will often provide the survivor with a new-found love for life. Barack Obama could indeed do lasting damage to the United States of America in four years' time, but I am confident in America and Americans and therefore cannot help but be optimistic about our nation's future -- so long as we survive until 2012.

As I wrote on three separate occasions (click HERE, HERE and HERE) in the days following last week’s election, I am confident that, should the Republican Party get back to basics and creatively and effectively convey a traditional message rooted in the tenets of conservatism, America will emerge from a Barack Obama administration stronger for it. We need to ensure that our eye is on the ball, that our focus is on Obama’s conduct in the Oval Office, and on the action and inaction of Nancy Pelosi and Harry Reid’s Congress. The mainstream press cannot be trusted to be transparent when it comes to coverage of this upcoming administration and Congress, so while it is fine to keep watch on the courts when it comes to actions like those filed by Donofrio and Philip Berg, we cannot let this vigilance take away either from the attention we must devote to following the daily happenings on Capitol Hill, or from the efforts we must take to spread the conservative message in the face of a media which would like nothing more than to see us fail.

Personally, now that the election has come and gone, and despite the unanswered questions surrounding so many aspects of Barack Obama's candidacy and campaign, I believe that America will be best served if the enthusiasm and energy surrounding these cases were also used to promote the merits of conservatism to our nation's youth, to revolutionize the GOP's ground game in much the same way--if not better--than Obama changed the operations of his party, and to ensure that the American voting public know what is going on in Washington and how we, through those traditional conservative principles fiscal and otherwise, could do better.

Obama's election, however frustrating, provides the conservative movement and the United States of America as a whole with a tremendous window of opportunity -- let's make sure we take advantage of it.


UPDATE, 9:45am:
Response from Donofrio deems America's Right piece "erroneous," aforementioned arguments "legally false and naive."

If former New Jersey lawyer Leo Donofrio were given the chance to argue his case before the United States Supreme Court, he may very likely be asked to show common law support for his assertion that the word "natural" in Article II, Section 1 of the U.S. Constitution suggests a lack of encumberances to any other nation besides ours. In playing Devil's Advocate, I advanced that very line of questioning, and just this morning received an e-mail from Mr. Donofrio stating that my legal arguments "are legally wrong and naive."

If he cannot handle a law student playing Devil's Advocate without immediately turning to inflammatory rhetoric, how does he expect to handle Justice Stephen Breyer?

Per our telephone conversation, I had intended to engage in a question-and-answer post with Mr. Donofrio--I warned him that I would be tough and fair and, in doing so, would argue against his points, and he told me to "swing away"--but at this point do not believe it necessary, as he answers most of everything to the best of his ability in the response on his Web site, in which he deems my attempt at merely playing Devil's Advocate, at merely presenting a contrary argument, as being filled with "false contentions" and "erroneous statements."

His response is centered around my argument--again, playing Devil's Advocate--that he does not provide any case law support, from any level, of his interpretation of the Natural Born Citizen clause. In his filings, he does not, and he would most certainly be called upon it should his action reach the highest court in the land.

According to Donofrio in his response and in his filings, he did provide support for this claim by citing to the 14th Amendment, which he states does in fact not address or grant "natural born citizen" status. To me, this is a rather circular argument -- he states that his support for the interpretation of "natural" is based on his citation to an Amendment that doesn't address the issue of "natural born citizen," yet nonetheless he unequivocally relies upon it to conclude that "natural born citizen" means "born in the US and subject to the jurisdiction of the US." Above and beyond his failure to point to a case at any time, in any court, at any level backing up his interpretation of the constitution and subsequent claim, his reliance on such a circular, self-perpetuating argument came across, to me, as a fundamental lack of support for his most basic argument at the root of his case.

To the extent that Donofrio does rely on the 14th Amendment for his interpretation of the word "natural" used in Article II, Section 1, that argument fails. Over 100 years ago, the U.S. Supreme Court expressly held that a child born in the United States to foreign nationals is without a doubt a U.S. Citizen, enjoys that status from birth, and is therefore "natural born." I cite cases. See, for example, United States v. Wong Kim Ark, 169 U.S. 649 (1898). Wong Kim Ark was born in the U.S. to two Chinese foreign nationals. As a young man, Wong traveled to China and, upon return, was re-admitted to the U.S. on the grounds that he was a "native-born citizen of the United States." He returned to China four years later, and upon his attempted return to the United States, he was detained as a non-citizen because, although born in the U.S., his parents were Chinese citizens, and therefore, he also was a Chinese person and a subject of the Emperor of China. In that case, the U.S. Supreme Court held that under the 14th Amendment, a child born in the United States--to parents who are citizens subjects of a foreign power who live in the US (other than diplomats, etc.)--is, in fact, a US citizen from birth. In other words, that child is a "natural born citizen."

Thus, Donofrio's argument to the contrary--that the 14th Amendment does not involve "natural born citizenship" status--goes against well-established U.S. Supreme Court precedence. Furthermore, there are several additional State and US Supreme Court cases that rule similarly to Wong Kim Ark, all of which find that a child born in the United States to foreign national parents (other than diplomats, etc.) are considered natural born citizens.

The bottom line here is that, despite being absolutely disgusted that Barack Obama has withheld vital information and gotten away with it, I am not a mouthpiece for people who want to sue the guy. Just as I have done with Philip Berg's action, just as I have presented the other procedural perspective, just as I disproved one of Berg's causes of action outright, I will do my level best to present all sides of these issues. I cannot protest the one-sided bias in the mainstream press out of one corner of my mouth, and then subsequently only present one side of a story or argument out of the other. Shouting without listening does nobody any good.

If that's what you want, go to Phil Berg's Web site, or Leo Donofrio's Web blog. You won't find that here.



Leo Donofrio said a lot of things this morning, and did not respond to the piece in the respect I thought he would, given our interaction yesterday. With regard to his response this morning, there is certainly more to be said. If I think it's necessary, more will follow as soon as I have time.

-- Jeff