Plaintiff’s Opposition to Defendant Marco Rubio’s Motion to Dismiss

Case # CACE15022044 Ft. Lauderdale Circuit Civil

In the Case of:

Michael C. Voeltz

v.

Senator Ted Cruz

Senator Marco Rubio

Secretary of State Ken Detzner

Executive Committee of the Republican Party of Florida

Plaintiff has standing

Voting Rights cases necessarily have multiple plaintiffs,

including entire swaths of eligible voters who are harmed by

government malfeasance with regard to the right of citizens to

vote in a fair election, free from fraud, and invoking a

federally protected right. Here Florida voters such as Michael

Voeltz, who have taken an oath to protect and defend the

Constitution of the United States, and who are deemed to be the

supreme political force in the state of Florida by the Florida

Constitution ( Art. 1 S. 1, Fla. Const.), have been presented

with a fraudulent slate of candidates. Two candidates, Senator

Marco Rubio and Senator Ted Cruz are not natural born Citizens

and not “eligible”, or “capable of election”, according to the

U.S. Constitution. Yet the political parties, without regard to

the supreme law of the land, and only seeking their own power,

have seen fit to defraud the voters of Florida against the will

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of the Congress of the United States, who has made the self-

executing Constitutional edict that no person, but a natural

born Citizen, shall be capable of election (Art. 2 S. 1 C. 5).

Some 300,000 votes for Republican electors in the state of

Florida will go to ineligible candidates, diluting and debasing

plaintiff’s right to vote. Even if he votes for one who is not

a front runner today, they may have been able to win if the 20-

30% of the votes for Mr. Rubio and Cruz had been redistributed.

There is no way to know how those votes would have been

distributed had the Secretary’s ministerial duty not been

weakened to the point that the political parties have all the

political power to determine who is on the Florida Republican

Primary ballot. There is no barrier to political parties

Violating plaintiff’s right to vote except by declaratory

judgment, since the Florida Legislature neutered the preventive

ministerial duty of the Secretary to perform an oath of

eligibility, enforcing a penalty of 3rd degree fraud upon those

candidates performing the oath (Falsely swearing to an oath

arising out of an election is a felony of the third degree; SS.

104.011(1), Fla. Stat. (2011; RE: DE 11-05 Qualifying -Role of

Qualifying Officer, § 99.012(7)(c), Florida Statutes), with the

enactment of Fl. SS. 99.021(2)(c)(3) in May, 2011. The

legislature has also dismantled the Presidential Primary

Selection Committee (PPSC) (Fl. SS. 103.101(2)(b), 2010 Florida

Statutes), which was a preventive measure enacted by the

people, and contained a provision that all members of a

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Political party in the PPSC to strike a candidate from the

ballot. The result, predictively, has been fraud on the voters

of Florida. Now the political parties face no obstacle and no

penalty for placing ineligible candidates on the ballot which

will nominate a person to the highest office in the land. They

simply furnish the names to be placed on the ballot to the

Secretary, and those names are placed on the ballot(103.101(2)).

Candidates likewise face no penalty for violation of the

Constitution regarding their lack of eligibility for the

federal office they seek. It is an absurd result to think that

the citizens of Florida, the supreme political power in the

state, have no way to stop the violation of the US

Constitution, and the harm inflicted to their right to vote,

because a number of citizens may be affected the same way.

If that were the case then no provision or act done by the

legislature, or the political parties, with the support of

the legislature, could be challenged, and self- executing

provisions such as Art. 2 S. 1 C. 5 could be nullified at will

with no recourse. In short, the legislature’s recent enactments

have seen to it that no candidate or government faction is

liable, accountable or responsible for defrauding the voters,

as the political parties have been given free reign to conduct

such fraud without recourse, and the Secretaries duty is

ministerial. It cannot be justice, or equity, that there is no

recourse to contest the fraud committed on the people without

at least a hearing on the merits as to whether candidates for

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the highest office in the land are “capable of election”, and

thus eligible for the ballot. There is a reason that the

natural born Citizen requirement is self-executing, and that is

to prevent its nullification. No statute giving plaintiff

authority to enforce Art. 2 S. 1 C. 5 is necessary because it

is self- executing, and plaintiff is of the class that chooses

the electors to which the mandate is directed by Art. 2 US

Const.; (“Each state shall appoint, in such manner as the

Legislature thereof may direct, a number of electors.” Art. 2

S. 1 C. 2) and as delegated by the Florida legislature, Fl. SS.

103.011; “Votes cast for the actual candidates for President

and Vice President shall be counted as votes cast for the

presidential electors supporting such candidates”. The Primary

is part of the general election (See US v. Classic, 313 US 299,

316-321 (1941)), and there is no enabling clause reserving to

Congress legislation punishing or enforcing violations of

Article 2, as there is in Art. 1. The mandate that only a

natural born Citizen shall be eligible is therefore enforced by

the Constitution itself, to protect the right of voters, each

harmed individually, by the presence of those “not capable of

election,” which skews the result of the election, and debases

the “right of the voters at the primary… a right or privilege

secured by the Constitution.” id @ 325

The Supreme Court, in upholding the self-executing

Fifteenth amendment, with regard to the violation of it as to

the voting rights of Oklahoma citizens, by the power of the

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states to regulate elections, held that “[t]he restriction is

coincident with the power, and prevents its exertion in

disregard of the command of the Amendment.” Guinn & Beal v.

United States, 238 US 347, 362 (1915), and that, “[w]hile, in

the true sense, therefore, the Amendment gives no right of

suffrage, it was long ago recognized that, in operation, its

prohibition might measurably have that effect; that is to say,

that, as the command of the Amendment was self-executing and

reached without legislative action the conditions of

discrimination against which it was aimed.” Ex parte Yarbrough,

110 U.S. 651; Neal v. Delaware, 103 U. S. 370.” Id. @ 363.

Large numbers of citizens were affected by the literacy

test within the Oklahoma Constitution, yet citizens harmed

individually were able to persevere, and enforce the self-

executing right of the fifteenth amendment over the state’s

power to regulate and conduct elections. To adjudicate as to

whether the self-executing provision has been violated it is

then necessary to define the term “natural born Citizen” on the

merits, and defendant admits to much confusion as to its

meaning. If he is adjudged on the merits to not be a natural

born citizen, within the meaning of the Constitution, then he

should be enjoined from appearing on the ballot. Plaintiff

insists that the self-executing provision restricts him from

the ballot, and Senator Rubio contends that he is a natural

born citizen eligible to appear on the ballot, thus the

controversy is sharpened, and the requirements of art. III

standing are upheld.

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Defendant Rubio wrongly maintains that this complaint is

analogous to a taxpayer complaint, challenging “governmental

action” on taxation leading to an injury common to all

“taxpayers” (Rubio Motion @ 4). However, plaintiff is not

objecting to “taxation” or “government action”, as that action

was ministerial, and required by law, as misguided as it was.

Mr. Voeltz is contesting Mr. Rubio’s presence on the ballot, as

a voter specifically appointed to choose electors, and of whom

who the state department of Florida says, “the ministerial

placing of one's name on the ballot does not preclude

litigation to have the name removed from the ballot for not

satisfying the eligibility requirements of the office.”

(Advisory Opinion, DE 11-03; Presidential Elections; Candidates

Ballot, access. SS. 103.021, Florida Statutes, July 27, 2011).

Mr. Rubio contends that a number of state cases previously

decided foreclose plaintiff’s standing in this case, such as

Berg v. Obama, 574 F. Supp. 2d 509 (2008) for the proposition

that plaintiff Berg’s grievance was “generalized…as opposed to

particularized injuries in fact”. (Rubio @10) What Mr. Rubio

fails to mention is that there is no way the court in that case

could have found standing. Mr. Berg filed that suit on August

21, 2008, and the Pennsylvania primary was on April 22, 2008.

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There was no imminent case or controversy, and Mr. Obama had not

even been nominated at the national convention yet. Many of the

other cases had structural deficiencies, such as wrong timing

or attempting to say that the secretary of state’s had a “duty

to investigate the eligibility of the candidates,” where that

duty was clearly characterized as ministerial, or after the

election had already occurred, or before the candidate was on

the ballot. In many instances the courts offered an opinion

about a constitutional issue after they had already denied

standing (as in Ankeny v. Governor of Indiana, 916 NW 2d 678

Ind. Ct. of App 2009). In Voeltz v. Obama et al., No. 2012-CA-

00467, the court denied standing because “no nomination had

occurred in the primary” despite the fact that “primary” is

defined as an election for “nomination of a candidate”, and

despite the fact that Florida statutes deemed Mr. Obama “shall

be nominated for the office”, as the only person on the

ballot(Fl. SS. 101.251(1)). Nevertheless the court offered an

opinion as to what a natural born Citizen was after the fact

that standing was denied, as did Ankeny, violating the well-

worn rule of statutory construction of constitutional avoidance

and judicial restraint, that courts should avoid a

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constitutional question when there was some other way to decide

the case (See, Ashwander v. Tennessee Valley Auth., 297 U.S.

298, 346-48 (1936). Those opinions are just that, opinions, and

in no way precedent, as they are diametrically opposed to

opinions of the Supreme Court of the United States. Ironically

Mr. Rubio, a United States Senator, thinks more of state court

“opinions”, and decidedly “manufactured precedent,” designed to

shut down the voice of the people, than precedent of the

Supreme Court of the United States in Minor v. Happersett, 88

US 162, 167 (1875), and Wong Kim Ark, 169 US 649, 680

(1898). Those federal cases clearly and explicitly defined

natural born Citizen as “one born in a country of parents who

are its citizens”. Mr. Rubio stays far away from that.

In the legislative apportionment case of Baker v. Carr, 368

US 186 (1962) large swaths of voters were harmed by an

apportionment scheme, enacted by the state legislature, that

diluted the vote, violating all similarly situated voters equal

protection rights, yet each voter filing the complaint, from a

number of Tennessee counties, themselves harmed in the same way,

were given standing by that court, even though they sued on

their own behalf. The Court cited Colegrove v. Green, which

“squarely held that voters who allege facts showing

disadvantage to themselves as individuals have standing to

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sue”. Id. @ 206 Plaintiff has alleged a personal stake in the

outcome of the controversy, that his vote for the appointment

of electors, granted by the state legislature, will be debased

and diluted by the presence of candidates Mr. Cruz and Mr.

Rubio. Their appearance on the ballot is akin to stuffing the

ballot box with 300,000 votes in an election where a 1% margin

of victory triggers a recount. An election cannot be valid and

free from fraud if some 20% of the votes go to ineligible and

fraudulent candidates. The controversy is sharpened, as Mr.

Voeltz is assigned by the legislature to choose the electors by

Florida statute, and Mr. Rubio has sought to be elected. The

Federal Constitution bars those that are not natural

born Citizens from being considered for that choice. The

presence of Mr. Rubio on the ballot, and Mr. Voeltz’ position,

as the entity that chooses the electors, presents a controversy

regarding a federal question that is ripe for adjudication, as

to whether Mr. Rubio is “eligible,” and constitutionally

capable of election, and whether he can legally be on the

ballot. By definition if Mr. Rubio is not capable of election

then he cannot be on the ballot; and if he is on the ballot

then he is capable of election. The Remedy asked for, an

injunction enjoining the names of Ted Cruz and Marco Rubio from

appearing on the Florida Republican Party Presidential Primary

ballot will directly cure the harm inflicted. The

constitutional mandatory and prohibitory command that no person

but a natural born Citizen shall be eligible is without

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restriction or limitation, and is a self-executing demand

directed to those making the choice of electors, which are the

voters of Florida. The Secretary has performed a ministerial

duty of placing the names, supplied by the Republican political

party of Florida, on the ballot. The non-discretionary

ministerial nature of that act means that it is subject to

judicial review.

Plaintiff Voeltz has satisfied all three prongs of the

standing doctrine as expressed in Lujan v. Defenders of

Wildlife, 504 US 555 (1992) that determine that this action is a

case and controversy regarding a federal question within the

meaning of Article III, US Constitution. The Secretary has

published the list of persons whom will appear on the ballot of

the republican presidential primary, on which the name of

Senator Marco Rubio appeared on December 8, 2015. Mr. Voeltz

filed this action on December 15, 2015, after it was made

certain that Marco Rubio would be on the ballot. As a registered

Republican voter who will vote in that closed Florida

Republican Party Presidential Primary, to be held March 15,

2016, Mr. Voeltz will certainly suffer an injury in fact, the

dilution and degradation of the efficacy of his vote, caused by

the presence of the defendant Marco Rubio on the ballot, which

will siphon a higher percentage of votes than the percentage

that triggers an automatic recount, from legal candidates.

Those votes could certainly go to his choice of candidate.

Second, the direct cause of Mr. Voeltz’ injury is the placement

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of the ineligible candidate, Marco Rubio, on the ballot, by

nomination of the republican party, and by the ministerial duty

of the secretary, making him capable of election. Third, the

injury will certainly be redressed by the remedy pled for by

plaintiff, that the name of Marco Rubio be enjoined by

injunction from appearing on the ballot id. @ 560, 561. Mr.

Voeltz will certainly be “among the injured” and directly

affected by the presence of Mr. Rubio on the ballot id. @ 563.

There is no requirement to standing that Mr. Voeltz be the only

one injured, as Mr. Rubio asserts. As expressed by the holdings

of Baker v. Carr, Guinn & Beal v. US, and Lujan, it is necessary

that he be “among those directly, actually and imminently

injured”, id. @ 564 and that the injury is “certainly

impending,” id. @ 565, as it is in this case, as the primary is

less than two months hence.

The people of Florida have enacted a contest of election

statute that allows a voter, eligible to vote in an election,

to challenge the eligibility of “any person nominated or

elected to office.” (Fl. SS. 102.168 (1)(c )(3)) Plaintiff has

been given standing on par with other candidates in an election

to challenge Mr. Rubio’s nomination or election by the Florida

statutes themselves, and that statute applies to presidential

elections. (Palm Bch. Co. Canvassing v. HarrisNos. SC00-2346,

SC00-2348, SC00-2349, footnote 20, Dec. 11, 2000 (Corrected

Opinion) However that avenue cannot cure the injury that will be

sustained if Mr. Rubio does not, and who likely will not, win

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the nomination of the Florida Republican party delegates to the

national convention. The injury, dilution and degradation of

the right to vote, will have occurred whether Mr. Rubio wins or

not. Mr. Rubio contends that this case does not rise to the

threshold of Article III standing because Mr. Voeltz raises

only a “general grievance about government”, and that Mr.

Voeltz “suffers in some indefinite way in common with people

generally.” (Rubio @ 6) However that is not the case here. This

is not a case about “government administration according to the

constitution”, or asking the judiciary to “assume a position of

authority over the governmental acts of another and coequal

department.” id. @ 574 (quoting Frothingham v. Mellon, 262 US

447 (1923)) It is a real and concrete controversy based on a

self-executing constitutional mandate, and Mr. Voeltz seeks to

enforce the supremacy of the federal constitution with regard to

that mandate in a controversy that affects him directly. The

legislature of Florida has appointed Mr. Voeltz, as among those

who will choose the electors, and therefore he has been

appointed authority by Congress to enforce the constitutional

self-executing mandate of Art 2 S. 1 C. 5, and the primary is

part of that process. This is not a “generalized grievance,

common to all members of the public.” There are roughly 11.5

million voters in the state of Florida, of which roughly 4.1

million are of the Republican party.

http://www.politifact.com/punditfact/statements/2015/jul/08/chuck-todd/florida-no-party-voters-are-growing-question-why/

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Roughly thirty nine percent of the Republican party voters

actually voted in the closed Republican primary in 2012, and the

fact that “independent” voters have grown at a much faster pace

than that of either major party suggests that there may be less

votes in the 2016 primary than in 2012. Less than fifteen

percent of the voters in the state will vote in the Republican

presidential primary, in which plaintiff Voeltz will imminently

vote, on March 15. Therefore this injury cannot be viewed as a

“general grievance” common to all of the voters of Florida.

Eligibility for the Presidency is a judicial determination

Mr. Rubio cites a multitude of cases regarding the

eligibility of Barack Obama to serve as President since 2008 as

proof that the question of eligibility of a presidential

candidate is a “non-justiciable political question” reserved

to the joint session of Congress to count the electoral votes.

(Rubio @ 8)The Congressional Research Service has issued a study

of the Electoral College, Thomas H. Neale, The Electoral

College: How It Works in Contemporary Presidential Elections,

October 22, 2012, Library of Congress. No mention is made within

that extensive twenty page document about any responsibility to

check the constitutional qualifications of any person for whom

the electors are ascertained by any state. The fact is that not

one word in the 12th Amendment or in 3 US Code 15 refers to any

vetting of Constitutional eligibility of a President elect, and

3 US Code 5 (Determination of Controversies Regarding the

Appointment of Electors) has in fact invited states to

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judicially determine “controversies”. There is no restriction or

suggestion as to what those controversies may be. The

invitation of the states by Congress to determine controversies

by that state’s judicial standards necessarily means that the

question of candidate presidential eligibility is not

“political”. According to Supreme Court holding, the application

of the Twelfth Amendment, or the Twentieth Amendment, must show

the intent to displace state law altogether in a way “so

pervasive . . . that Congress left no room for the States to

supplement it” or where there is a “federal interest . . . so

dominant that the federal system will be assumed to preclude

enforcement of state laws on the same subject.” Rice v. Santa

Fe Elevator Corp., 331 U. S. 218, 230 (1947); see English v.

General Elec. Co., 496 U. S. 72, 79 (1990). It cannot be seen

that Congress pervasively preempted the states from judicial

determination of a controversy as to the eligibility of a

presidential candidate, when it has invited the states to

“determine controversies”. What other “controversies” can

states not determine? What can they determine? The mandate that

only a natural born citizen is capable of election is directed

to the states, not Congress, who as a group are not even

allowed to choose electors, yet supposedly they are singularly

charged with vetting the candidates? That is an absurd

result. Where “eligible” means “capable of election” it refers

to placement on the ballot in the first instance, or prevented

from assuming the office in the second, and the second option,

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as proposed by Mr. Rubio, means a full blown constitutional

crisis. The first just means he cannot be on the ballot.

Mr. Rubio also attempts to invoke the Twentieth amendment

(Rubio @ 14) as proof that the question is assigned to Congress,

but that fails miserably, as he admits that it refers to the

discretionary acts of Congress if no candidate obtains a

majority of the electoral votes, and in no way refers to any

“vetting” duty assigned to Congress. It would be an absurd

result that the decision as to whether one is not eligible to

serve as President, who has been elected by the people, would

have to necessarily wait until more than a month after the

general election to have the rug pulled out from under them by

a “gotcha” Congress.

In short, as explained in his original complaint, plaintiff

has demonstrated that the State Department of the United

States, the State Department of Florida, and the Florida Supreme

Court have all concluded that eligibility for the office of

President is a judicial determination (See, for instance 7 FAM

1131.6-2, that it has never been decided by a court whether one

born abroad to a US citizen parent is eligible for the

presidency). It would be a violation of the separation of powers

to concentrate all determination of eligibility to Congress of

Congress itself (as it is explicitly by Art. 1 S. 5), and of

the Executive. This is especially true in light of the words of

Federalist 68, that, “Another and no less important desideratum

was, that the Executive should be independent for his

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continuance in office on all but the people themselves”.

Natural born citizen is a term of art of law of nations, a part of the common law of the United States

In the next part of Mr. Rubio’s motion, he attempts to

equate “natural born subject” with “natural born Citizen”, and

Confuses the terms “citizen” and “natural born Citizen,” which

appear in the same clause (Art. 2 S. 1 C. 5), completely

ignoring Supreme Court of the United States decisions which

clearly delineate the two terms.(Rubio @18) Senator Rubio

believes that the framers, who had just risked their lives and

sacred honor to break away from the British Crown, would adopt

the British sovereign view of themselves as “subjects” with

perpetual allegiance to a monarchy. This view is clearly the

antithesis of the founders view of liberty and freedom, where

the “citizens” are sovereign, not the monarch. Senator Rubio

also ignores the fact that the exact term of art, “natural born

Citizen”, appears in law of nations, part of the laws of the

United States, and British common law, where no mental

gymnastics are needed to make a “subject” a “citizen”, and where

“natural born citizen is explicitly defined as one born in the

United States to parents who are its citizens” (Vattel, Law of

Nations, Bk. 1 Ch. 212). (See, “It is of high importance to the

peace of America that she observe the laws of nations” and that

“this will be more perfectly and punctually done by one

national government than it could be . . . by thirteen separate

States.” The Federalist No. 3, at 14–15 (John Jay) (Jacob Cooke

ed., 1961); and also “Until such an act be passed, the court is

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bound by the law of nations, which is a part of the law of the

land.” The Nereide, 13 U.S. @263)

Mr. Rubio claims that the term is “not defined in the

Constitution”, but how many terms are? Are “letters of Marque

and Reprisal”, “ex post facto”, and “Bill of Attainder” defined

within the Constitution? Does that mean that the framers and

the citizens of the day did not know what it meant? If the term

is “not defined in the constitution” then how is it defined, as

Mr. Rubio claims, by the 14th Amendment? (Rubio @ 17-18)

Mr. Rubio claims that as an equal of British common law

“natural born subjects”, which are “natural born subjects” if

born anywhere in the realm of the British empire, so too are

those simply born in the United States “natural born Citizens.”

He fails to see the obvious logical fallacy of that

assumption, even though he cites John Jay’s letter to George

Washington, which explicitly suggested that only a natural born

Citizen should be President in order to provide a “strong

check” on foreign influence into the oval office. If

“prevention of foreign influence” is the purpose of the

requirement, then it is impossible to believe that the framers

believed that one born of foreign, non-citizen parents, or in a

foreign country is eligible. Yet Mr. Rubio contends that the

requirement was installed to prevent one man, Baron Von Stuben,

(Rubio @ 20) from being President, rather than as a security

requirement for the Republic going forward, to prevent all

foreign influence by insulating the office with two generations

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of American citizenship from birth. In fact John Jay wrote four

successive Federalist papers on “Concerning the Dangers

From Foreign Force and Influence” (Federalist 2 through 5), so

to think that he was only thinking of one man is simply not

true. The Senator seems to think that eligibility is some sort

of “civil rights” issue, when it actually is connected to the

security of the Republic. The “danger of foreign influence” has

not receded, and the connectivity of the world at large makes

the requirement even more necessary.

Defendant Rubio puts much reliance for his contention that

anyone born in the US is a natural born Citizen on the case of

Wong Kim Ark, 169 US 649 (1898). Where Justice Gray cited who

the “natural born subjects” were (“[A]ny person who (whatever

nationality of the parents) is born within the British

dominions is a natural born subject.”)(Rubio @ 21), he claims

and that the court “held” that anyone born in the United States

is a US citizen (and ipso facto a natural born Citizen, eligible

to be President). If that is true then there would not need to

have been a 60 page opinion. Justice Gray could have simply said

that “Wong Kim Ark was born in the US so he is a US citizen,

next.” But Justice Gray did not say any such thing. The US

government itself was claiming that Wong Kim Ark was not a US

citizen precisely because his parents, prevented from

naturalization by the Burlingame Treaty with China, had not

naturalized by the age of majority of Wong Kim Ark, and

therefore Wong was not considered a US citizen by the US

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government. Justice Gray relied specifically on the legal

habitation of the parents, who by common law had established a

temporary allegiance to the host country, and held that since

the parents were “subject to the jurisdiction of the US” due to

that legal residence, and within the meaning of the 14th

Amendment, then so was Wong Kim Ark, and so he was a US citizen

after his birth in the US (id. @ 693). That is the holding of

the case. He relied on the legal habitation of the parents, not

simple birth in the US to establish that Wong Kim Ark was a US

citizen. To say that the court held that Wong Kim Ark held that

anyone born in the US is a US citizen is an outright 118 year

old lie. But that is an argument for another day. Justice Gray

certainly did not say that Wong was a natural born Citizen, and

not one sentence reads “Wong Kim Ark is a natural born

Citizen”.

Mr. Rubio leaves out the 3 sections of the case where

Justice Gray cites the Minor v. Happersett definition of

natural born Citizen from 23 years earlier, of which he never

disagrees. That fact, and what Justice Gray said regarding

Minor simply demolishes the argument that Mr. Rubio makes, that

natural born Citizens are the same as natural born subjects of

British common law. Again, from Minor, “The Constitution does

not, in words, say who shall be natural-born citizens. Resort

must be had elsewhere to ascertain that. At common-law, with

the nomenclature of which the framers of the Constitution were

familiar, it was never doubted that all children born in a

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country of parents who were its citizens became themselves,

upon their birth, citizens also. These were natives, or

natural-born citizens, as distinguished from aliens or

foreigners.” Minor v. Happersett, 88 US 162, 167 (1874)

When citing that quote from Minor, and using the term

“citizen”, not “subject”, Justice Gray said, “In Minor v.

Happersett, Chief Justice Waite, when construing, in behalf of

the court, the very provision of the Fourteenth Amendment now

in question, said: ‘The Constitution does not, in words, say

who shall be natural-born citizens. Resort must be had

elsewhere to ascertain that.’ And he proceeded to resort to the

common law as an aid in the construction of this provision”

(Wong Kim Ark @ 655), (emphasis added). If British common law

were the source of the term “natural born Citizen”, and if it

were the same as “natural born subject”, then the condition of

the parents would have no bearing on whether a person born in

the US was a natural born Citizen. Justice Gray, said that the

determination of natural born citizen depended on the condition

of the parents, agreeing with the “common law” definition of

Minor, therefore British common law is not the “common law”

referred to. Gray referenced the law of nations definition,

never disagreeing.

Mr. Rubio also misconstrues the holding of Inglis v.

Sailor’s Snug Harbor, 28 US 99 (1830), (Rubio Motion @ 21)

claiming that the holding was that, “the Court recognized that

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it was universally acknowledged that all persons born in the

colonies, while under the rule of the British Crown, were

considered natural born subject of great Britain.” It is

interesting to note that this case is the one annotated to Art.

2 S. 1 C. 5 in the Revised Statutes 1878. The case actually

held that a child, even if born in American territory after

1776, was not a US citizen and was unable to inherit real

estate in New York because his father, Charles Inglis, was a

British loyalist, and adhered to the British Crown, declining

to make the election to be a US citizen, and choosing perpetual

allegiance to the British Crown, and thus he made that election

for his son.

“If born after 4 July, 1776, and before 15 September of the same year, when the British took possession of New York, his infancy incapacitated him from making any election for himself, and his election and character followed that of his father, subject to the right of disaffirmance in a reasonable time after the termination of his minority, which never having been done, he remains a British subject and disabled from inheriting the land in question” .Inglis v. Trustees of Sailor’s Snug Harbor, 28 US99, @ 126 (1830)

The Inglis case is annotated to Art. 2 S.1 C. 5 because it

discusses who are the natural born Citizens, those who were

born in the post July 4, 1776 territory of the United States of

parents who adhered to the Revolution (the parents of the early

natural born citizens, born prior to 7/4/1776, were citizens at

the time of the ratification, who were naturalized by Art. 2 S.

1 C. 5 itself). It describes the dawn of the

Republic. Inglis also holds that the perpetual allegiance, which

Mr. Rubio referred to as the reason that natural born subjects

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are the same as natural born Citizens, is anathema to the

foundation of Liberty, and right of election that began with

the Declaration of Independence. “This right of election must

necessarily exist in all revolutions like ours, and is so well

established by adjudged cases that it is entirely unnecessary

to enter into an examination of the authorities. The only

difficulty that can arise is to determine the time when the

election should have been made.” Id. @ 122 (quoting Vattel, Law

of Nations, Bk. 1 Ch. 33) The true reading of Inglis is

inconvenient to the argument that Mr. Rubio proposes, and in

fact, perpetual allegiance itself is the core difference between

the “citizens” and “subjects” that Mr. Rubio desperately

attempts to equate. In every instance where the Supreme Court

has said what a natural born Citizen is, Senator Rubio ignores

it.

14th Amendment citizens are not, and cannot, be the same as natural born Citizens by the laws of construction

Mr. Rubio then speaks of the “common law view of natural born

citizen as reflected in the 14th Amendment”. (Rubio @ 22) He

cites the debates of the 14th Amendment as proof that anyone

born in the US is a citizen of the US and therefore a natural

born Citizen, eligible to be President. Of course he fails to

note this quote from Senator Trumbull, the sponsor of the

amendment; “The sponsor of the language said: ‘This amendment

which I have offered is simply declaratory of what I regard as

the law of the land already, that every person born within the

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limits of the United States, and subject to their jurisdiction,

is by natural law and national law, a citizen of the United

States. This will not, of course, include persons born in the

US who are foreigners, aliens, who belong to the families of

embassadors(sic) or ministers accredited to the United States,

but will include every other class of persons.” Congressional

Globe, 1st session 39th Congress, 1866, pg. 2890; and See also,

“Every human being born within the jurisdiction of the United

States of parents not owing allegiance to any foreign

sovereignty is, in the language of your Constitution itself, a

natural born citizen.” (Cong. Globe, 39th, 1st Sess., pg. 1291

(1866))

Mr. Rubio opines that “there is no support for the view that

any distinction exists between those persons born in the United

States for the purpose of the Fourteenth Amendment and those

who are “natural born citizens” for the purposes of Article 2

S. 1 of the US Constitution” (Rubio @ 29)

However, the laws of statutory construction certainly say

otherwise, as two separate terms in a statutory scheme must be

given separate effect. If a “born” citizen of the 14th Amendment

were the same as a “natural born Citizen”, then the framers of

the Amendment would have used the term “natural born Citizen”,

as they certainly knew that term, as expressed by the debates

of the Amendment in the Congressional Globe. To hold that the

term “born” in the 14th Amendment is equal to “natural born

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Citizen” of Art. 2 would make art. 2 S. 1 C. 5 inoperable,

an impermissible construction; “It cannot be presumed that any

clause in the constitution is intended to be without effect;

and therefore such construction is inadmissible, unless the

words require it.”Marbury v. Madison, 5 U.S. 137, 174 (1803);

and see also, “Where there is no clear intention otherwise, a

specific statute will not be controlled or nullified by a

general one, regardless of the priority of enactment. See,

e.g., Bulova Watch Co. v. United States, 365 U.S. 753, 758

(1961); Rodgers v. United States, 185 U.S. 83, 87 -89

(1902).And also; “The courts are not at liberty to pick and

choose among congressional enactments, and when two statutes

are capable of co-existence, it is the duty of the courts,

absent a clearly expressed congressional intention to the

contrary, to regard each as effective. When there are two acts

upon the same subject, the rule is to give effect to both if

possible . . . The intention of the legislature to repeal `must

be clear and manifest.’ ” United States v. Borden Co., 308 U.S.

188, 198 (1939).” Morton v. Mancari, 417 U.S. 535, 550-551

(1974)

Further, it has recently been held in Hassan v. FEC, Civil

Action No. 11-2189, US District Court for the District of

Columbia (2012), where one foreign born Abdul Hassan attempted

to claim that the 14th Amendment amended Art. 2 S. 1, that “the

natural born citizen requirement has not been implicitly

repealed by the Fifth and Fourteenth Amendments.” id. @ 16; and

also, “Even if a constitutional provision could be implicitly

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repealed in the same manner as a statute, the implicit repeal

of statutes is disfavored and will not be found absent clearly

expressed congressional intent. See Nat’l Ass’n of Home

Builders v. Defenders of Wildlife, 551 U.S. 644, 662(2007);

Posadas v. Nat’l City Bank, 296 U.S. 497, 503 (1936)(holding

that “[w]here there are two acts upon the same subject, effect

should be given to both if possible”). Repeals by implication

are only found where provisions in two statutes are in

“irreconcilable conflict, or where the latter act covers the

whole subject of the earlier one and is clearly intended as a

substitute.” Branch v. Smith, 538 U.S. 254, 273 (2003)id @ 17.

Mr. Rubio wrongly contends that “at least six Presidents of the United States would have been ineligible to serve”.

Senator Rubio is simply wrong in his assertion that

plaintiff’s correct view of the Constitution would have made

“six Presidents… ineligible to serve.” (Rubio @ 32)

James Buchanan was born in 1791 in Pennsylvania. His father was Irish born and emigrated to Pa. in 1783. His parents married circa 1788. Pennsylvania ratified the US Const. in 1787, thus he was an original citizen, and his wife was also naturalized then. James was born to 2 US citizen parents and was a natural born Citizen.

Andrew Jackson was covered by the “grandfather clause” (“or a citizen at the time of the ratification of the Const.”). He was born in the Carolinas in 1767, and was a citizen of the states at the time of ratification.

Woodrow Wilson’s mother was born in England. She was naturalized by marriage to Wilson’s father, an American citizen, and upon Woodrow Wilson’s subsequent birth in 1856 in Va. He was a natural born Citizen, born to 2 US citizen parents.

Herbert Hoover’s mother was foreign born Canadian, but she

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became a US citizen upon marriage to Herbert’s US citizen father, prior to the birth of Herbert in Iowa in 1874. Parents were both US citizens at the time of his birth in the US, so he was a natural born Citizen.

If born in 1802, under the same circumstances (born in the US to 2 resident alien parents), Marco Rubio would have been naturalized by the naturalization of his parents, and not even considered a US citizen at the time he was born, therefore he cannot be a natural born Citizen today.

Senator Rubio contends that the provision for derivative

naturalization, contained in the Naturalization Acts of 1790,

1795 and 1802 only conferred citizenship on “foreign born

children of naturalized parents’. (Rubio @ 30) However he is

adding words to those statutes that are not there. The only

stipulation is “if dwelling in the United States” in all three

statutes. A naturalization statute would certainly say “if born

abroad”, if that is what it meant. That is not to say that it

could not be applied to those born abroad, as it could be

applied to both circumstances. Some states at the time did give

“birthright citizenship”, which was seen as a usurpation of

Congress’ power to enact uniform immigration and naturalization

law, and Congress fixed that with a clause in the

Naturalization Act of 1802, Act of April 14, 1802, c. 28, § 4;

2 Stat. 155, as follows:

“The children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the Government of the United States, may have become citizens of any one of the said States under the laws thereof, being under the age of twenty-one years at the time of their parents' being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States.” (emphasis added)

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“or who, previous to the passing of any law on that subject by

the Government of the United States, may have become citizens

of any one of the said States under the laws thereof…” meant

that even if a state granted “birthright” citizenship upon a

child born of aliens within that state, that child would not

become a citizen of the United States until the parents

fulfilled the citizenship requirements of the United States,

otherwise the Congressional power of uniform naturalization law

would be defeated

Article 2 S. 1 C. 5 has never been amended, and therefore

means today what it did then. Natural born citizens have always

been citizens upon their birth, merely by tacit consent, they

are indigenous citizens, born insulated from foreign influence

by 2 generations of citizenship, on US soil. What else would

they be? It is the only definition that supports the purpose of

the requirement, prevention of foreign influence. If Marco

Rubio would not be considered a US citizen at birth by

application of the earliest naturalization laws, then he must

be considered a US citizen at birth today only by the operation

US naturalization law (“any means whatsoever”-8 US Code

1401(a)). That is, he is naturalized, not natural born, and not

eligible for the Presidency.

Birth with dual nationality would simply not be acceptable

to the framers of the Constitution in a future President. Even

today the State Department frowns on it, as stipulated in 7 FAM

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081(e); “While recognizing the existence of dual nationality,

the U.S. Government does not encourage it as a matter of policy

because of the problems it may cause. Dual nationality may

hamper efforts by the U.S. Government to provide diplomatic and

consular protection to individuals overseas. When a U.S.

citizen is in the other country of their dual nationality, that

country has a predominant claim on the person”.

Finally, Senator Rubio misconstrues plaintiff’s argument with

respect to Afroyim v. Rusk, 387 US 253 (1967). (Rubio Motion @

29) The holding of the case was that those “conferred

citizenship” (naturalized) by the 14th Amendment, either born in

the United States, like Wong Kim Ark (specifically), or foreign

born, like Mr. Afroyim, could not have their citizenship taken

away, except by explicit permission by those naturalized.

Plaintiff was comparing Senator Rubio to Wong Kim Ark, as

referenced in Afroyim, and also born domestically of legal

resident alien parents. The case was 15 years after the

definition of naturalization established by the Immigration and

Naturalization Act of 1952 (23), which set forth the official

State Department definition of “naturalized” as “the conferring

of nationality after birth, by any means whatsoever.” Afroyim

used that same terminology multiple times, and said

specifically that Wong Kim Ark was “conferred citizenship” by

the 14th Amendment, with full knowledge of INS 1952. “Any means

whatsoever” certainly can be by the 14th Amendment itself, the

same way Art. 2 S. 1 C. 5 naturalized the citizens of the

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states at the time of ratification. It could also be by

statutes such as 8 US Code 1401. No person has ever been

President and born of two non-citizen parents, and there is a

reason for that.

Interestingly, the Maryland Law Review article that Senator

Rubio relies heavily on, citing it 5 times, Charles Gordon, Who

Can Be President of the United States: The Unresolved Enigma, 28

Md. L. Rev. 1, (1968), has an asterisk next to the author’ name,

and the asterisk denotes, “The views expressed are the author’s

and do not necessarily represent the views of the Department of

Justice.” It is a law review article, and is purely opinion, not

the law, as the author admits. He also cites 2 other law review

articles, which are merely opinions, and not law, Christina S.

Lohman, Presidential Eligibility: the Meaning of the Natural-

Born Citizen Clause, 36 Gonz. L. Rev. 349 (2000), and Neal

Katyal& Paul Clement, On the Meaning of Natural Born Citizen,

128 Harv. L. Rev. F. 161 (2015). Suffice it to say Senator Rubio

undoubtedly got much of this argument from these opinions, and

not the law. There is no room for opinion here, as it is akin

to playing “telephone” with the Constitution, and third hand

opinion certainly changes the meaning of the Constitution along

the way.

Conclusion

Plaintiff Voeltz has proved his standing beyond doubt. The

presence of Senator Rubio on the Florida Republican Primary

ballot will dilute, debase and degrade plaintiff’s right to

vote, and the candidate of his choice may win if the votes for

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Mr. Rubio go substantially to another candidate. Some 300,000

votes going to ineligible candidates certainly skews and

changes the election. Plaintiff is charged by the Constitution

itself through the Legislature of Florida to make the choice of

electors, where only a natural born Citizen shall be capable of

election. The injury affects him personally. This issue must

finally be adjudicated, and Declaratory Judgment issued, as to

whether Mt. Rubio is capable of election. This action does not

seek an “advisory opinion.” This action seeks remedy for a

particularized harm done to plaintiff, and those similarly

situated. Plaintiff makes judicial notice that as of 30 days

after this complaint was filed and legally served, defendant

Senator Ted Cruz has failed to respond. It is time to end the

confusion as to who is eligible to serve in the highest office

in the land. The American public is thirsty for it, and the

security of the Republic depends on it.

Respectfully submitted, Michael Voeltz, Pro Se

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