Barack Obama Ballot Challenge Proceeding Forward in the NJ Supreme Court

               Barack Obama Ballot Challenge Proceeding Forward in the
                                               NJ Supreme Court


                                            By Mario Apuzzo, Esq.
                                                August 8, 2012




The candidate Barack Obama presidential election ballot challenge in New Jersey is proceeding forward. On July 2, 2012, I filed on behalf of my clients, Nicholas E. Purpura and Theodore T. Moran, a Petition for Certification with the New Jersey Supreme Court. See my post entitled, Purpura and Moran File Petition for Certification With the NJ Supreme Court in Obama NJ Ballot Challenge , with 439 comments, accessed at http://puzo1.blogspot.com/2012/07/purpura-and-moran-file-petition-for.html . The Petition for Certification may be read here: http://www.scribd.com/doc/98923880/Purpura-Moran-Petition-for-Certification-FILED-7-2-12 .

On July 16, 2012, candidate, Barack Obama, through his attorney, Angelo J. Genova, Esq., filed his Opposition Letter Brief which can be read here, http://www.scribd.com/doc/102405426/Purpura-Moran-Opposition-Letter-Brief-by-Obama-to-NJ-Supreme-Ct-7-16-12 . On July 19, 2012, the New Jersey Secretary of State, through the New Jersey Attorney General (by Deputy Attorney General Alan C. Stephens) filed her Opposition Letter Brief which can be read here, http://www.scribd.com/doc/102405496/Purpura-Moran-Opposition-Letter-Brief-of-SOS-to-NJ-Supreme-Ct-7-19-12 .

Today, Wednesday, August 8, 2012, I filed with the Supreme Court petitioners’ Reply Letter Brief. A copy of the Reply Letter Brief can be read at http://www.scribd.com/doc/102405635/Purpura-Moran-Reply-Letter-Brief-to-NJ-Supreme-Ct-FILED-8-8-12 .

The New Jersey ballot challenge case is now ready for submission to the Chambers of the New Jersey Supreme Court Justices for decision on whether the Court will grant our Petition for Certification. A Petition for Certification shall be granted on the affirmative vote of 3 or more justices. If certification is granted, the matter shall be deemed pending on appeal in the Supreme Court and the Court would then decide the appeal on the briefs, appendices, and transcript filed in the Appellate Division. The Supreme Court may render a decision with or without oral argument.

In the Petition for Certification, we argue that our petition presents questions of general importance which have not been but which should be settled by the Supreme Court and that the interest of justice requires that the Supreme Court grant certification. A democratic majority does not have the constitutional right to elect a President who is not constitutionally eligible. Hence, whether a person running for President is an Article II “natural born Citizen” and constitutionally eligible for that office is a question of great public importance. What role the State of New Jersey through the Secretary of State (“SOS”) has in vetting candidates who are running for the Office of President is also a question of great public importance. Whether New Jersey is responsible for determining the eligibility of its presidential candidates is a significant question for the state to answer. For sure, how best to protect the integrity of New Jersey elections for the Office of President is a question of great public importance to the State of New Jersey, which is guaranteed by Article IV, Section 4 of our Constitution a republican form of government. These questions and their answers are special reasons enough for this Court to grant certification.

We argue that the Administrative Law Judge, whose opinion was adopted by the Secretary of State and affirmed by the Appellate Division, erred in allowing candidate Barack Obama to be placed on the ballot for the primary and general election and to run for office in New Jersey without providing any evidence to the New Jersey Secretary of State showing his identity or where he was born, when challenged to do so.

We argue that, in light of Obama conceding that the State of New Jersey has no evidence of his identity or place of birth, including the 2011 internet image of his alleged birth certificate, the ALJ had absolutely no evidence before him upon which to base his finding that Obama was born in Hawaii.

We also argue that the ALJ misapplied Article II, Section 1, Clause 5, the Fourteenth Amendment, Minor v. Happersett, 88 U.S. 162 (1875), and United States v. Wong Kim Ark, 169 U.S. 649 (1898), all which he used to find that Obama is a “natural born Citizen.” Article II, Section 1, Clause 5 provides that if one was born before the adoption of the Constitution, one could be a “Citizen of the United States” and be eligible to be President. But it also provides that for all those born after the adoption of the Constitution, one must be a “natural born Citizen” to be eligible to be President. That means that today, anybody who is just a “citizen of the United States” and not a “natural born Citizen” is not eligible to be President.

The Founders and Framers had good reason for including the “natural born Citizen” clause into the Constitution and requiring that future Presidents have that birth status. St. George Tucker tells us why the Founders and Framers used the “natural born Citizen” clause as a requirement of presidential eligibility:

“That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, wherever it is capable of being exerted, is to be dreaded more than the plague. The admission of foreigners into our councils, consequently, cannot be too much guarded against; their total exclusion from a station to which foreign nations have been accustomed to, attach ideas of sovereign power, sacredness of character, and hereditary right, is a measure of the most consummate policy and wisdom.”

George Tucker, Blackstone's Commentaries: with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of The Commonwealth of Virginia (1803) (Philadelphia: published by William Young Birch and Abraham Small; Robert Carter, Printer, 1803), http://constitution.org/tb/tb2.htm . So we can see that the Founders and Framers used the “natural born Citizen” clause as a national security measure designed to make sure that the President worked only in the best interest of the United States and its republican principles and of no other nation. It was also put in place to keep all vestiges of monarchial rule and influence out of the United States.

The Fourteenth Amendment by its clear text gives the status of a “citizen of the United States” to those born or naturalized in the United States and “subject to the jurisdiction thereof.” It does not give anyone the status of a “natural born Citizen.” When the Founders and Framers inserted the “natural born Citizen” clause in the Constitution, there was no Fourteenth Amendment. Hence, they surely did not write the clause into the Constitution having in mind any citizenship standard that is contained in the Fourteenth Amendment. And there does not exist any evidence that the Fourteenth Amendment repealed or amended the Founders’ and Framers’ definition of an Article II “natural born Citizen.” Hence, Article II, Section 1, Clause 5 and the Fourteenth Amendment stand as two separate and distinct constitutional provisions which provide two different constitutional citizenship standards.

Again, Minor v. Happersett confirmed the American “common-law” definition of a “natural-born citizen,” which Minor said the Founders and Framers were familiar with and used when they wrote the “natural born Citizen” clause. That definition is a child “born in a country of parents who were its citizens.” Id. at 167-68. Minor left open the question of whether a child born “within the jurisdiction” of the United States to alien parents is a “citizen of the United States” under the Fourteenth Amendment. As we have seen, this is a different standard as that which applies to defining a “natural born Citizen.”

Wong Kim Ark answered the single question left open by Minor. It held that Wong, born in the United States to domiciled and resident alien parents who were neither diplomats nor military invaders was born “subject to the jurisdiction” of the United States and therefore a “citizen of the United States” from the moment of birth. The Court’s single task was to interpret and apply the Fourteenth Amendment, not Article II, Section 1, Clause 5. The Court found that Wong’s parents being domiciled and residents (not “citizens”) was enough to give jurisdiction to the United States over them and Wong when Wong was born. Again, since the Fourteenth Amendment neither repealed nor amended Article II, Section 1, Clause 5 “natural born Citizen” clause, Wong defined a “citizen of the United States” under the Fourteenth Amendment, not a “natural born Citizen” under Article II. In fact, Wong’s specific holding uses the phrase “citizen of the United States,” not “natural born Citizen.” Hence, using that amendment to find someone a “citizen of the United States,” regardless of whether that person is a “citizen” from the moment of birth, has no direct bearing on the definition of an Article II “natural born Citizen.” After all, Article II says “natural born Citizen,” not “born Citizen,” and is applied for presidential eligibility. What the Fourteenth Amendment can do with reference to a “natural born Citizen” is increase the pool of parents who become “citizens of the United States” and give birth to “natural born Citizens.”

The clause “natural born Citizen” is a word of art, an idiom, a unitary clause, which has a very special meaning as confirmed by Minor. It is constitutional error to conflate and confound a “citizen of the United States” under the Fourteenth Amendment with a “natural born Citizen” under Article II. A “natural born Citizen,” being the standard for the President and the Commander in Chief of the Military, requires allegiance and citizenship only to the United States from the moment of birth. A Fourteenth Amendment “citizen of the United States” from birth does not have the same allegiance requirement and can even be born with dual and conflicting allegiances, a condition which the Founders and Framers did not permit future Presidents and Commanders to have when born. They were very specific as is evident from the plain text of Article II, Section 1, Clause 5, that after the adoption of the Constitution, one had to be a “natural born Citizen,” and not just a “Citizen of the United States.”

There is no other U.S. Supreme Court case that has changed the meaning of a “natural born Citizen” as confirmed by Minor. That definition, which is the definition from the Founding, it therefore the supreme law of the land and stands today until amended by Constitutional amendment. And that definition is a child “born in a country of parents who were its citizens.”

We know that candidate Barack Obama was not born to “citizen” parents. His father was a British/Kenyan citizen who never became a “citizen of the United States.” Obama, even if born in Hawaii, cannot be a “natural born Citizen.” Because his father was not a U.S. citizen when Obama was born, Obama, who wants to be President and Commander in Chief of the Military, while he could have been born a “citizen of the United States” if born in Hawaii, was also born in full allegiance and citizenship of Great Britain and at age two also of Kenya. He was not born within the full and complete allegiance of the United States, an indispensable birth condition for one wanting to be President and Commander of the Military. Hence, Obama is not and cannot be an Article II “natural born Citizen.” See David Ramsay, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789) (citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….” Id. at 6; St. George Tucker, Blackstone's Commentaries: with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of The Commonwealth of Virginia (1803) (Philadelphia: published by William Young Birch and Abraham Small; Robert Carter, Printer, 1803), http://constitution.org/tb/tb2.htm (“These civil rights [which included the right to be elected President] may be inherited, or acquired, in the United States: they are acquired by a foreigner who is naturalized; they are inherited by all whose parents, at the time of their birth, were citizens”).

What this means is that since Obama is neither an Article II “natural born Citizen” nor a “Citizen of the United States, at the time of the Adoption of this Constitution,” under Article II, Section 1, Clause 5 he is not eligible to be President and Commander in Chief of the Military.

I will update this post as soon as I receive new information.

Mario Apuzzo, Esq.
August 8, 2012
http://puzo1.blogspot.com
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