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TABLE OF CONTENTSPage
Table of Contents 2Table of Authorities 3-4
Enumeration of Errors 5
Statement of Jurisdiction 6
Judgment Being Appealed 6
Background 6
Memorandum of Law 8
I. Establishment of Precedent is Desirable 8
II. Reversible Error Exists 8
III. Superior Court Erred in Finding that 21-2- 5 Doesnt 8Apply to Presidential Primaries
IV. Superior Court Erred in Finding Georgia Election Code 11Violates U.S. Constitution
V. Superior Court Erred in Finding Service Not Perfected 15
VI. Secretary of State Erred in Finding Natural Born 17Citizen Under Article II of the U.S. Constitution Includes All Persons Born o n U.S. Soil Without Regard to the
Citizenship of Their Parents
Conclusion 20
Certificate of Service 21
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TABLE OF AUTHORITIES
Cases Page Arkeny v. Governor , 18916 N.E.2d 678 (Ind.Ct.App. 2009)
Asphalt Co. v. Georgia Public Service Commission , 15263 Ga.App. 711 (2003)
Belluso v. Poythress, 11, 12485 F.Supp. 904 (N.D.Ga. 1980)
Democratic Party of U.S. v. Wisconsin , 11, 12
450 U.S. 107 (1981)
Duke v. Cleland , 11, 12954 F.2d 1526 (11 th Cir. 1992)
General Motors Acceptance Corp. v. United States , 18 286 U.S. 49 (1932)
Henderson s Tobacco , 1778 U.S. 652 (1870)
Marbury v. Madison , 175 U.S. 137 (1805)
Minor v. Happersett, 18, 1988 U.S. 162 (1874)
Morton v. Mancari , 17417 U.S. 535 (1974)
United States v. Borden Co. , 17308 U.S. 188 (1939)
United States v. Tynen , 1778 U.S. 88 (1870)
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TABLE OF AUTHORITIES
Cases (Cont.) PageWong Kim Ark, 19169 U.S. 649 (1898).
Wood v. United States, 1841 U.S. 342 (1842)
StatutesOCGA 5-3-21 15, 16
OCGA 5-6-32 16
OCGA 5-6-35 5-7
OCGA 21-2-5 Passim
OCGA 21-2-15 9
OCGA 21-2-193 10
ConstitutionsGeorgia Constitution, Art. VI, VI, 1 5
U.S. Constitution, Art. II 5-6, 17-19
U.S. Constitution, 14 th Amd. 17-19
U.S. Constitution, 22 nd Amd. 13
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ENUMERATION OF ERRORS
Pursuant to OCGA 5-6-35 the Petitioner respectfully asserts that the
following reversible errors are established by the record in the instant case:
1) The Superior Court Erred in finding that OCGA 21-2-5 is not
applicable to Georgia Presidential primaries.
2) The Superior Court erred in finding that Georgia Election Code
violates the Democratic Partys right to freely associate, as protected by the First
Amendment to the U.S. Constitution.
3) The Superior Court Erred in finding that service was not perfected in
the instant case. Alternatively, that the Superior Court erred in preemptively
dismissing the instant case based upon failure of Petitioners first attempt at service
of process.
4) The Secretary of State erred in finding that the term natural born
citizen, as used in Article II of the U.S. Constitution, includes all persons born on
U.S. soil without regard to the citizenship of the parents of the person born on U.S.
soil.
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STATEMENT OF JURISDICTION
Article VI, VI, II of the Georgia Constitution states: The Supreme Court
shall be a court of review and shall exercise exclusive appellate jurisdiction in the
following cases:...(2) All cases of election contest.
The instant case is an election contest arising from OSGA 21-2-5.
Therefore this Court has exclusive jurisdictio n upon review of the Superior Courts
final judgment.
JUDGMENT BEING APPEALED
Pursuant to OCGA 5-6-35 copies of the judgment being appealed and
copies of Respondents motion to dismiss and Petitioners opposition to said
motion are attached as exhibits to this petition.
BACKGROUND
Petitioners challenge has consistently alleged only one uncontested fact and
one legal assertion: that the Respondents father was not a U.S. citizen and that
pursuant to U.S. Supreme Court precedent a person must have two U.S. citizen
parents to be a natural born citizen under Article II of the U.S. Constitution.
On November 1, 2011, the Democratic Party of Georgia notified the Georgia
Secretary of State that the only candidate that should appear on the Democratic
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Presidential primary ballot would be Barack Obama. Pursuant to O.C.G.A. 21-2-5
the Petitioner filed a timely challenge with the Secretary of State. The challenge
was referred by the Secretary of State to the Office of State Administrative
Hearings (hereinafter OSAH) . An evidentiary hearing was held on January 26,
2012. On February 3 the OSAH entered a preliminary judgment holding that any
person born on U.S. soil is a natu ral born citizen as that term is use in Article II
of the U.S. Constitution, regardless of the citizenship of the persons parents. See
Ex. D at 10. On February 7 the Georgia Secretary of State adopted the ruling of the
OSAH. See Ex. E.
The Petitioner filed a timely appeal with the Superior Court pursuant to
OCGA 21-2-5 on February 10. On February 27 the Respondent filed a motion to
dismiss. See Ex. B. On March 1 the Superior Court notified the Petitioner that the
Court was shortening the time to respond, giving the Petitioner less than 24 hours
to file an opposition. On March 2 the Superior Court granted the Respondents
motion to dismiss. See Ex. A.
However, the Superior Courts grounds for dismissal were different from
those found by the Secretary. Compare Ex. A with Ex. D & E. The Superior Court
held that the Secretary of States applic ation of Georgia Election Code 21-2-5 to
the Presidential Primary was an error of law, and that said application violates the
Democratic Partys Constitutional right to associate. See Ex. A.
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MEMORANDUM OF LAW
I. Establishment of Precedent is Desirable
Pursuant to OCGA 5-6-35 an application for leave to appeal a final
judgment shall be granted when the establishment of a precedent is desirable.
In the instant case the Superior Court disagreed with the OSAH and the
Secretary of State regarding the applicability of OCGA 21-2-5 to Georgia
Presidential primaries. This disagreement between OSAH, the Secretary of State,
and the Superior Court regarding applicability and interpretation of Georgia
election code warrants review by this Court.
II. Reversible Error Exists
OCGA 5-6-35 also establishes that leave to appeal shall be granted when
reversible error appears to exist. For the reasons set forth below, reversible error is
apparent in the instant case.
III. Superior Court Erred in Finding that 21-2- 5 Doesnt Apply toPresidential Primaries
OCGA 21-2- 5(a) states: Every candidate for federal and state
officeshall meet the constitutional and statutory qualifications for holding the
office being sought. The same chapter states This chapter shall apply to any
general or special election in this state to fill any federal, state, county, or
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municipal office, to any general or special primary to nominate candidates for any
such office , and to any federal, state, county, or municipal election or primary for
any other pu rpose whatsoever, unless otherwise provided. O.C.G.A. 21 -2-15
(emphasis added).
The Superior Courts holding that this Code doesnt apply to the Presidential
primary runs contrary to the plain language of the code.
The Superior Courts holding requires an interpretation of law that leaves
Title 21 internally conflicting. The Superior Court reads 21-2-5(a) to mean
Every candidate for federal and state office shall meet the constitutional and
statutory qualifications for holding the office being sought, except candidates for
President . The code doesnt make an exception for Presidential candidates. The
Georgia legislature certainly could have included such an exception if they had
intended such an exception. They didnt include such an exception because they
didnt intend one.
The Superior Court s argument also rests upon an ass umption that 21-2-
5(a) addresses elections and not candidates. However, 21 -2-5(a) doesnt
contain the word election. It does contain the word candidate. More
specifical ly, it applies to Every candidate 21 -2-5(a)(emphasis added). Since
the explicit prevails over the implicit, the Every candidate language in 21 -2-
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5(a) negates the Superior Court s assumption that that section implicitly exempts a
special category of candidates.
For the Superior Court s holding to make sense the Presidential primary
would need to be administered without candidates. However, Georgia Election
code specifically requires the political parties to submit to the Secretary of State a
list of the names of the candidates of such party to appear on the presidential
preference primary ballot. 21-2-193(emphasis added). The list of names
submitted by the parties to the Secretary of State are candidates, in the
Presidential primary. Id . 21-2-5 (a) applies to Every candidate for federal office,
and requires them to be constitutionally qualified to hold such office. Id . Therefore,
21-2- 5(a) applies to the list of candidates submitted by political parties under
21-2-193.
Petitioners clear -meaning reading of Georgia Election code leaves the code
in harmony, whereas the Superior Courts holding leaves the word candidate
meaning one thing in one section and meaning something different in another
section. According to the Superior Court in one section the Respondent is a
candidate and in the other section he is not a candidate.
Finally, the Superior Courts holding is grounded upon a conclusion of law
that was fully briefed and rejected by the OSAH. Therefore, this issue requires
review by this Court.
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The Superior Courts holding that 21 -2-5 does not apply to Presidential
primaries represents reversible error. Therefore this Court should grant the instant
petition.
IV. Superior Court Erred in Finding Georgia Election Code ViolatesU.S. Constitution
The Superior Courts holding that application of 21-2-5 to Presidential
primaries would violate the political parties right to freely associate is not
supported by any precedent and is an error of law.
The right to associate has been interpreted to allow private groups to
determine who will and will not be members of the group. Democratic Party of
U.S. v. Wisconsin , 450 U.S. 107 (1981); Duke v. Cleland , 954 F.2d 1526 (11 th Cir.
1992); Belluso v. Poythress , 485 F.Supp. 904 (N.D.Ga. 1980). However, no court
has extended this right beyond the confines of the private organization. A party can
determine who it will include as members. That party can also determine which of
those members will be its candidates. However, nothing in the Constitution or
precedent forces a State to accept a partys selection of candidates for appearance
on a ballot. 1
1 While right-to-associate precedent has negated some states restrictive laws for recognizing political parties, these precedent have not forced states to accept allcandidates for appearance on ballots without any screening of such candidates.
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Several right-to- associate cases did involve candidates exclusion from
ballots. See Democratic Party of U.S. v. Wisconsin , 450 U.S. 107 (1981); Duke v.
Cleland , 954 F.2d 1526 (11 th Cir. 1992); Belluso v. Poythress , 485 F.Supp. 904
(N.D.Ga. 1980). However, all of these cases are exactly opposite to the present
situation. All involved political parties excluding a candidate because the party
didnt want to be ass ociated with the candidate. In every case cited the candidate
sued the party and/or state for inclusion on the ballot after being excluded.
There are no cases where a political partys decision to support a candidate
created a Constitutional right to force a State to accept that decision. Such
precedent would place the political partys authority above that of the state. This is
why no such precedent exists.
It is true that some states lack election codes authorizing any state officials
to screen candidate selections from political parties. In these states political parties
have essentially unfettered authority to determine which candidates appear on
ballots. However, these instances represent decisions of the states to not screen
candidates. It is the stat es right to decide how to administer its elections. The fact
that some states have decided to not protect their citizens from unqualified
candidates does not mean that other states dont have the right to screen
candidates. It simply means that some states have left the screening to the political
parties.
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Georgia has determined that it is in the best interest of its citizens to screen
candidates prior to placement on the ballot. See 21-2-5. Right-to-associate
precedent does not prevent Georgia from protecting its citizens in this manner.
The Democratic Party of Georgias Constitutional right to determine its
membership coexists with Georgias right to govern Georgia. Georgia code does
not interfere with the autonomy of the political partys internal deci sion making
because it does nothing to prohibit the parties from submitting any name to the
Secretary of State for inclusion in the Presidential primary. The political parties are
free to submit Saddam Hussein or Mickey Mouse as their next Presidential
candidate. However, Georgia is not required to accept such submissions and waste
taxpayer money on ballots for such candidates.
After the Superior Courts holding, the political parties could choose to list
former Presidents George Bush and Bill Clinton as candidates for the Presidential
primary, despite the fact that both President Bush and President Clinton are
disqualified to run for that office again by the 22 nd Amendment to the U.S.
Constitution. Upon such listing the State of Georgia would have no choice but to
place these candidates names on its ballots. This result demonstrates the error of
the Superior Court s holding. Contrary to the Superior Court s holding, the
political parties simply do not have unfettered dictatorial authority over the state of
Georgia.
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Georgia code does not prevent the political parties from submitting any
name. Instead the code simply determines what the State does with a p artys list of
candidates after the party has forwarded its list to the State. See O.C.G.A. 21-2 et
seq. This code does nothing to prevent any political party from excluding, or
including, any person they choose to exclude or include. Nor does it prevent a
party from choosing candidates to submit, in its sole discretion. Georgias code
simply exercises the States right to administer elections in a manner that best
serves the citizens of the State.
In the instant case Georgias Election code does nothing to infringe on the
Democratic Party of Georgias right of association because the Party can and did
include the Respondent in its organization. The Party can and did include the
Respondent in the Partys list of candidates. The Partys rights, however, end there.
Its rights cannot force the State to place the Respondents name on a ballot after
the State de termines that the Respondent is obviously not qualified to hold the
office sought. 21 -2-5. The rights of the Party and of the State simply do not
conflict.
The Superior Court s holding logically requires a conclusion that no state
can preclude any candidate from any primary ballot for any reason without
violating a political partys right to freely associate. Since many candidates have
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been disqualified from primary ballots for lack of qualification to hold the office
sought, we can safely conclude that the Superior Court s holding is an error of law.
V. Superior Court Erred in Finding Service Not Perfected
As alternative grounds for dismissal the Superior Court found that
Petitioners have failed entirely to perfect personal service upon the Respondent(s)
as required by O.C.G.A. 21-2-5(e) and O.C.G.A. 9-11- 4. This Ruling runs
contrary to clear binding precedent.
In 2003 the Georgia Court of Appeals established that when petitioning a
Superior Court for review of a Georgia state administrative decision, service by
mail of the petition, without a case number or summons, upon the parties below
and the administrative agency is sufficient to establish jurisdiction. Douglas
Asphalt Co. v. Georgia Public Service Commission , 263 Ga.App. 711 (2003). In
Douglas the petition for review, alone, was served upon the parties and agency
contemporaneously with the filing of said petition. Id . at 711-12. Therefore, the
petition did not yet have a case number assigned by the clerk or a summons issued.
Yet the Appellate Court established that jurisdiction was established and service
was proper. Id .
The Douglas Court also noted that appeals from an agency decision are
governed by OCGA 5-3- 21, which provides in pertinent part that [a] copy of the
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notice of appeal shall be served on all parties in the same manner prescribed by
Code Section 5-6- 32. OCGA 5-6-32(a), states in relevant part:
Whenever under this article service or giving of any notice isrequired or permitted to be made upon a party and the party isrepresented by an attorney, the service shall be made upon theattorney unless service upon the party himself is ordered by the court.Service of all notices and other paper s hereundermay be made bythe attorney or party filing the notice or paper, in person or by mail,and proof thereof shown by acknowledgement of the attorney or partyserved, or by certificate of the attorney, party, or other person
perfecting service.
In the instant case both the Respondents attorney and the Secretary of State
were served by mail with copies of the Petition filed in the Superior Court.
Therefore, the Superior Courts alternate grounds for dismissal constitutes
reversible error of law.
In addition, even if service were considered improper for any reason, OCGA
5-3-21(b) sta tes in relevant part that: [f]ailure to perfect service on any party
shall not work dismissal, but the superior court shall grant continuances and enter
such other orders as may be necessary to permit a just and expeditions
determination of the appeal.
Again, the Superior Courts alternate grounds for dismissal constitutes
reversible error of law.
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VI. Secretary of State Erred in Finding Natural Born CitizenUnder Article II of the U.S. Constitution Includes All PersonsBorn on U.S. Soil Without Regard to the Citizenship of TheirParents 2
The Secretary of States decision concludes that any person born within the
United States, regardless of the citizenship or legal status of their parents, is a
natural born citizen under Article II of the United Stat es Constitution. This
conclusion runs contrary to common sense, violates venerable rules of
Constitutional Construction followed by the U.S. Supreme Court since its
inception, and violates the explicit holding of the Supreme Court case relied upon
by the Secretary.
The early Supreme Court established the relevant rule of Constitutional
construction in Marbury v. Madison : It cannot be presumed that any clause in the
Constitution is intended to be without effect; and therefore such a construction is
inadmis sible. 5 U.S. 137, 174 (1805). This rule is still in effect and a similar rule
is used for statutory construction: When there are two acts upon the same subject,
the rule is to give effect to both if possibleThe intention of the legislature to
repeal mu st be clear and manifest. United States v. Borden Co ., 308 U.S. 188, 198
(1939). See also, Morton v. Mancari , 417 U.S. 535, 551 (1974); United States v.
Tynen , 78 U.S. 88 (1870); Hendersons Tobacco , 78 U.S. 652 657 (1870); General
2 This issue will be more fully briefed by the Peti tioner upon this Courts grant of the instant petition.
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Motors Acceptance Corp. v. United States , 286 U.S. 49, 61 (1932); Wood v. United
States , 41 U.S. 342, 362-63 (1842).
Had the drafters of the Constitution intended all people born in the U.S. to
be considered natural born citizens, the 14 th Amendment would not have been
necessary. Had the drafters of the 14 th Amendment intended that Amendment to
alter the Article II definition of natural born citizen, they would have clearly stated
so. Yet the term natural born citizen is not found anywhere within the 14 th
Amendment. The Amendment also makes no reference to Article II.
Yet the Secretary of States rul ing in the instant case leaves A rticle IIs
natural born citizen clause with no independent meaning separate from the
meaning of citizen under the 14 th Amendment. Citizen simply does not have the
same legal meaning as the term natural born citizen. Article II uses the term
natural born citizen in order to distinguish this type of citizen from other citizens.
Yet the Secretarys holding co mpletely negates this distinction. Therefore, the
Secretarys holding violates venerable rules of Constitutional construction.
Marbury , 5 U.S. at 174.
The Secretary s conclusion compounds this error by ignoring a precedential
holding from the U.S. Supreme Court in favor of dicta from a later Supreme Court
case. The U nited States Supreme Court defined the term natural born citizen in
Minor v. Happersett . 88 U.S. 162, 167 (1874). The Courts definition of natural
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born citizen in Minor was necessary for that Court to reach its holding, and is
therefore binding precedent. In order to reach its holding, the Minor Court first had
to determine whether Mrs. Minor was a citizen. It explicitly stated as much and
then made the determination by showing that she was a natural born citizen: For
the purposes of this case it is not necessary to solve these doubts. It is sufficient for
everything we have now to consider that all children born of citizen parents within
the jurisdiction are themselves citizens. Id . at 167. Because both of Mrs. Minors
parents were U.S. citizens at the time she was born, and she was born in the U.S.,
she was a natural born citizen. Id . Because all natural born citizens are also within
the broader category citizen, Mrs. Minor was a citizen. This binding precedent
definition of natural born citizen was dismissed by the Secretary in favor of dicta
in a later Supreme Court case. This is an error of law.
The Secretary also reads the words natural born into the very explicit
holding of the Supreme Court s Wong Kim Ark decision. 169 U.S. 649 (1898). Yet
neither the 14 th Amendment nor the holding of Wong Kim Ark include the term
natural born. The Wong Kim Ark court was determining the meaning of the
broader term citizen under the 14 th Amendment. Id. at 705. Its holding was
explicitly identified as its holding. Id. Its holding was fact-specific. Id. Its holding
neither mentioned Article II nor the term natural born. Id.
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This issue was presented at length to the OSAH at oral arguments and in
written submissions, yet the Secretary of State chose to completely ignore this
issue in its decision.
Instead the Secr etary of States decision relies upon a non -binding opinion
from an Indiana State Appellate Court to support its conclusion. See Arkeny v.
Governor , 916 N.E.2d 678 (Ind. Ct. App. 2009). The Indiana opinion relied upon
was litigated by pro-se citizens of Indiana against the Governor of that state. Id .
The Indiana court reached its holding via an issue that didnt require interpretation
of the U.S. Constitution, yet that court then proceeded to construe the U.S.
Constitution as an independent means of reaching its holding. Id . at 684-85. The
Indiana courts decision to construe the U.S. Constitution without need to do so
also represents yet another violation of venerable rules of construction and judicial
restraint doctrine. T he Secretarys reliance upon the Indiana courts opinion, rather
than follow a precedential holding of the U.S. Supreme Court, demonstrates the
Secretarys error of law on this issue.
CONCLUSION
For the reasons set forth herein, the Petitioner respectfully requests that this
Court grant this Petition for Review.
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Respectfully submitted this 7 th day of March, 2012.
_________________________Van R. IrionTN Bar No. 024519Liberty Legal Foundation9040 Executive Park Dr., Ste. 200Knoxville, TN 37923(423) [email protected] Attorney for Petitioner
CERTIFICATE OF SERVICEPursuant to this Courts Rule 14 I certify that I have served the opposing
parties attorney and the Georgia Secretary of State in this matter with a copy of Petitioners Petition for Review by sending a copy via first class U.S. mail toattorney Michael Jablonski at 260 Brighton Rd. NE, Atlanta, GA 30309; and bysending a copy via first class U.S. mail to attorney Vincent Russo, Jr., at 214 StateCapitol Atlanta, GA. Copies were also sent via e-mail addressed to: MichaelJablonski [email protected] ; and Vincent Russo [email protected] .
This the 7th
day of March, 2012.
_________________________Van R. IrionTN Bar No. 024519
Liberty Legal Foundation9040 Executive Park Dr., Ste. 200Knoxville, TN 37923(423) [email protected] Attorney for Petitioner
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]