Memorandum of Points and Authorities in Support of Demurrer

8/3/2019 Memorandum of Points and Authorities in Support of Demurrer

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Respondents.

1 FREDRICD. WOOCHER(SBN 96689)PATRICIAT. PEl (SBN 274957)2 STRUMWASSER & WOOCHER LLP10940 Wilshire Boulevard, Suite 20003 Los Angeles, California 90024Telephone: (310) 576-12334 Facsimile: (310) 319-0156E-mail: [email protected]

Attorneys for Respondents6 Presiderit Barack Obama and Obama for America789

1011

SUPERIOR COURT OF THE STATE OF CALIFORNIAFOR THE COUNTY OF SACRAMENTO

EDWARD C. NOONAN, PAMELA12 BARNETT, SHARON CHICKERING,13 GEORGE MILLER, TONY DOLZ, NEIL

TURNER, and GARY WILMOTT,141516

Petitioners,v .

DEBRA BOWEN, individually and officially17 as The California Secretary of State at 1500

11 th Street, 5th Floor, Sacramento, CA 95814;18 BARACK HUSSEIN OBAMA II; OBAMA19 FOR AMERICA CALIFORNIA at Northern

California HQ, 3225 Adeline Street, Berkeley,20 CA 94703; JOHN and JANE DOES and XYZ21 ENTITIES,22232425262728

CASE NO. 34-2012-80001048

MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFDEMURRER OF PRESIDENT BARACKOBAMA AND OBAMA FOR ANIERICATO PETITION FOR PREROGATIVEWRIT OF MANDATE ANDRESTRAINT OF FUND RAISING

Date:Time:. Dept.:Judge:

April 20, 20129:00 a.m.31Hon. Michael P. Kenny

Action Filed: january 6, 2012

Printed on Recycled PaperMEMO OFPOINTS & AUTHORITIES IN SUPPORT OFRESPONDENT OBAMA'S DEMliRRER TO PETITION FOR WRIT OFMANDATE
mailto:[email protected]:[email protected]


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1 CONTENTS2 TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 113 INTRODUCTION 14 STATEMENT OF THE CASE ; 25 ARGUMENT 36 1 . THE PETITION DOES NOT STATE A CAUSE OF ACTION AGAINST ANYOF THE RESPONDENTS, AND IT CANNOT DO SO AS A MATTER OF7 LAW 4891011121 3141516171 819202122232425262728

THE PETITION DOES NOT AND CANNOT STATE A CAUSE OF ACTIONAGAINST PRESIDENT OBAMA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5A.

B. THE'PETITION DOES NOT AND CANNOT STATE A CAUSE OF ACTIONAGAINST THE OBAMA FOR AMERICA CAMPAIGN COMMITTEE 6C. THE PETITION DOES NOT AND CANNOT STATE A CAUSE OF ACTIONAGAINST THE SECRETARY OF STATE 6STATE COURTS HAVE NO JURISDICTION OVER THE QUALIFICATIONSOF CANDIDATES FOR PRESIDENT OF THE UNITED STATES OR THEIRFEDERAL FUNDRAISING ACTIVITIES 9

CONCLUSION 10

II.

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TABLE OFAUTHORITIES2 Federal Cases3 Cleaver v.Jordan (1968) 393 U.S. 810 9

4 Hollander v.McCain (D. N~H. 2008) 566 F.Supp.2d 63 45 Minor v . Happersett (1875) 88 U.S. 162 36 Robinson v . Bowen (N.D. Cal. 2008) 567 F.Supp.2d 1144 1, 107 Schneider v . Rusk (1964) 377 U.S. 163 48 u . s . v . Wong Kim Ark (1898) 169 U.S. 649 39 State Cases10 Blank v . Kirwan (1985) 39 Cal.3d 311 411 Common Cause v . Board of Supervisors (1989) 49 Cal.3d 432 ; 812 Kavanaugh v . West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911 813 Keyes v . Bowen (2010) 189 Cal.App.4th 647 ............................ 1,2, 7, 8, 9, 1014 Loder v . Municipal Court (1976) 17 Ca1.3d 859 415 Mosesian v . Parker (1941) 44 Cal.App.2d 544 6

"1 6 People ex reI. Younger v . County of El Dorado (1971) 5 Ca1.3d 480 417 Routh v . Quinn (1942) 20 Cal.2d 488 418 Other State Cases19 Ankeny v . Governor of State of Indiana (Ind. App. 2009) 916 N.E.2d 678 2,420 Federal Statutes21 2 U.S.C.,22 431 1023 453 (a) 1024 3 U.S.C.,25 15 2, 1026 26 U.S.C.,27 9001 1028 " 9031 "................. 10

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78.

18500 ............................................................ 5,6

1 State Statutes2 Cal. Elec. Code,3 305 3,54 350 (b) , 3,55 6041 ' 7,86 18203 ............................................................. 5,6

20200 . ' . 3,59 . 20203 '.' 5

JO Code ofCiv. Proc.,11 413.10 .. 212 430.10 (a) 4,913 430.10 (e) ; 414 1085 '.' 415. 1085 (a) ........... .- ! , 4,816 Stats. 2010, ch. 190, 9 7171819202122232425

. 262728

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1 INTRODUCTION2 Three years ago, this Court sustained a demurrer to the petition for writ of mandate inKeye3 v. Bowen (Sacto. Super. Ct. Case No. 34-2008-80000096), which,inter alia, sought to ba4 Respondent California Secretary of State Debra Bowen from certifying for the ballot the name o5 then-candidate Barack Obama or of "any future presidential candidate" without first verifying tha6 the candidate is a "natural born citizen" of the United States and, hence, is eligible to hold the office7 of President. This Court's ruling was subsequently affirmed in a published opinion by the Third8 District Court of Appeal, which unanimously held that Keyes' writ petition failedto state a cause o9 action against Secretary of State Bowen because California statutes do not impose a clear, present

10 or ministerial duty on the Secretary of State to investigate and determine whether a presidential11 candidate meets the eligibility criteria of the United States Constitution. (Keyes v.Bowen (2010) 1812 Cal.App.4th 647, 658-66Ct)The Court of Appeal further noted that a challenge to a presidential13 candidate's qualifications for office "is committed under the Constitution to the electors and the

14 legislative branch, at least in the first instance. Judicial review - if any - should occur only afte15 the electoral and Congressional processes have run their course." (Id at p. 661 [quoting Robinso16 v. Bowen (N.D. Cal. 2008) 567 F.Supp.2d 1144, 1147].)17 The Petition for Prerogative Writ of Mandate in the present case is virtually identical to the18 petition in Keyes v.Bowen, and it suffers from the same fatal defects. Petitioners allege that President19 Barack Obama is not a "natural born citizen" eligible to be President of the United States (POTUS)20 - not because he was not hom in the United States, but because his father was not a U.S. citizen-21 and they seek a writ of mandate to compel Secretary of State Bowen to "bar Respondent Obama ballot22 access in California along with those similarly situated from the 2012 Election cycle from forming23 an elector slate for the office ofPOTUS for California." (Petition for Prerogative Writ of Mandate24 and Restraint of Fund Raising ("Petition"), ~ 18.) The Petition also seeks a "permanent restraining25 order" barring President Obama or his campaign committee from fundraising in this election cycle26 (Id, ~~33-34.)27 President Obama is, of course, a "natural born citizen," born in the United States to a mother28 who was an American citizen, and is thus fully qualified to be President under the U.S. Constitution.

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1 (See, e.g., Ankeny v.Governor of'State of Indiana (Ind. App. 2009) 916 N .E.2d 678, 684-689 [person2 born within the borders of the United States are "natural born citizens," as required for qualification3 to be President ofthe United States, regardless ofthe citizenship of their parents ].) However, this fac4 is immaterial to the proper disposition of this case, which -like its predecessor, Keyes v.Bowen-5 can and must be dismissed as a matter of law because there is no duty on the part of the Secretary o6 State to determine whether President Obama or any other presidential candidate meets the eligibility7 requirements of the U.S. Constitution. Likewise, this Court lacks jurisdiction over Petitioners' claims8 becatisefederallaw establishes the procedures for election of the President, and the exclusive means9 of challenging the qualifications of a presidential candidate is to present an objection before the

10 United States Congress pursuant to 3 U.S.C. section 15. Because Petitioners cannot amend thei11 Petition to state a valid cause of action, Respondents' demurrer must be sustained without leave to12 amend.13 STATEMENT OF THE CASE14 On January 6, 2012, seven in pro per petitioners - Edward C. Noonan, Pamela Barnett,15 Sharon Chickering, George Miller, Tony Dolz, Neil Turner, and Gary Wilmott (collectively,16 "Petitioners") _. filed the instant "Petition for a Prerogative Writ of Mandate and Restraint of Fund17 Raising" against Respondents California Secretary of State Debra Bowen, President Barack Obama,18 and President Obama's campaign organization in California, Obama for America California.19 Petitioner Noonan alleges that he is a declared presidential candidate for the American Independent20 Party (Petition, ~ 1); the remaining Petitioners allege that they are "natural person[s] resident in21 California andregistered to vote in the 2012 Election cycle." (Id., ~~ 2_7.)22223 IThere is no legal entity entitled "Obama for AmericaCalifornia." President Obama's

principal campaign committee, as registered with the Federal Election Commission (FEC), is24 "Obama for America," which is headquartered and has its only office in Chicago, Illinois. President25 Obama's re-election campaign makes use of a number oflocal offices throughout the country, one

of which is located in the City of Berkeley, but these offices have no independent legal standing.26

2Although the Petition was never properly served on Respondent Obama in accordance with27 Code of Civil Procedure section 413.10 et seq., Respondents Obama and Obama for America haveagreed to waive the defect in service and to deem the Petition to have been served on them on

28 January 17,2012.2

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1 The gravamen of the Petition seeks a writ against Respondent Bowen to bar President Obam

MEMO OFPOINTS &AUTHORITIES IN SUPPORT OFRESPONDENT OBAMA'g DEMURRER TO PETITION FOR WRIT OFMANDATE

2 from the ballot in the 2012 election cycle. The Petition alleges that President Obama is "a known3 ineligible declared candidate'; for the office of President, in that President Obama has admitted tha4 his father "was a British subject" while married to his U.S. citizen mother. (Id., '1119.)According t5 Petitioners, under the U.S. Supreme Court precedent ofMinor v . Happersett (1875) 88 U.S. 162, thi6 allegedly means that Respondent Obama "is not a natural-born Citizen eligible to be POTUS a7 mandated by the U.S. Constitution," and he "must be barred from ballot access by Respondent Bowen8 as SOS starting no later than January 9, 2012." (Id, '1125.) Petitioners allege that they would suffe9 irreparable harm if an ineligible candidate were to appear on the ballot, and they therefore "demand

10 by prerogative 'writ of mandate ... that Respondent Bowen, SOS with authority to do so, ba11 Respondent Obamaballot access in California along with those similarly situated from the 201212 Election cycle from forming an elector slate for the office ofPOTUS for California." (Id, '1118.) I13 addition, the Petition alleges that "Respondent Obama is prohibited from fund raising as defined i14 Cal. Elec. Code 350(b) 'Candidate,' as used in Article l(commencing with Section 20200),,,3 an15 itdemands "a permanent restraining order to bar Respondent Obama and or his agents associated with16 Respondent Obama for America California be barred [sic] from fund raising or soliciting funds unde17 the guise of the elections cycle as must apply for all those similarly situated who are ineligible to b18 a candidate foroffice ofPOTUS." (Petition, '11'1133-34.)19 ARGUMENT20 As noted above, the legal theory on which the entire Petition is based - that, despite being21 born in the United States, President Obama is nota "natural born citizen" eligible to be President22 because his father was not a U.S. citizen-is manifestly incorrect. (See, e.g., u . s . v . Wong Kim Ark23 (1898) 169 U.S. 649,654-65 8 [noting that the meaning of the term "natural-born citizen of the United24 States" must be interpreted in light of English common law principles, under which "any person who25 (whatever the nationality of his parents) is born within the British dominions is a natural born British2627 3The Petition cites to California Elections Code section 350, but presumably intends to refer

to section 305. Section 305 defines the term "candidate" for various purposes in which the word is28 used in the Elections Code; section 350, by contrast, defines the term "school measure."

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1 subject"]; Schneider v. Rusk (1964) 377 U.S. 163, 165 [equating a "natural born citizen" who i2 eligible to be President to a native-born, as opposed to a naturalized, citizen]; Hollander v . McCain

THE PETITION DOES NOT STATE A CAUSE OF ACTION AGAINST ANY-, OFTHE RESPONDENTS,AND IT CANNOT DO SO AS A MATTER OFLAW

3 (D. N.H. 2008) 566 F.Supp.2d 63, 66 ["Those born 'in the United States, and subject to th4 jurisdiction thereof have been considered American citizens under American law in effect since th5 time of the founding and thus eligible for the presidency."]; Ankeny v . Governor of State of Indiana6 supra, 916 NE.2d at 684-689 [rejecting argument that President Obama is constitutionally ineligible7 to assume the office of President because his father was a citizen of the United Kingdom].) Even8 leaving its flawed premise aside, however, the Petition does not and cannot state a cause of action9 against any of the named Respondents, for the simple reason that none of them has neglected to

10 perform any duty imposed upon them by law. Moreover, the subject of Petitioners' claims are outside11 the jurisdiction of this or any other state court, and the Petition must be dismissed on that ground, a12 well. Because amendment would serve no useful purpose, Respondents' Demurrermust be sustained13 without leave to amend. (Code Civ, Proc., 430~10, subds. (a) & (e); Blank v. Kirwan (1985) 314 Ca1.3d 311, 318 [demurrer should be sustained when complaint fails to state facts sufficient to15 constitute a cause of action]; Routh v . Quinn (1942) 20 Ca1.2d 488, 493 [where "there are no16 circumstances under which an amendment would serve any useful purpose," dismissal without leave17 to amend is proper].)18 I.1920 Under Code of Civil Procedure section 1085, a writ of mandate will lie only "to compel the21 performance of an act which the law specially enjoins, as a duty resulting from ail office, trust, o22 station, or to compel the admission of a party to the use and enjoyment of a right or office to which23 the party is entitled, and from which the party is unlawfully precluded." (Code Civ. Proc., 108524 subd. (a).) Two essential requirements must therefore be met in order for a writ to issue: "(1) A clear25 present and usually ministerial duty upon the part of the respondent; and (2) a clear, present and26 beneficial right in the petitioner to the performance of that duty." (Loder v.Municipal Court (1976)27 17 Ca1.3d 859, 863 [quoting People ex rei. Younger v. County of EI Dorado (1971) 5 Ca1.3d 48028 491].)



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MEMO OFPOINTS& AUTHORITIES IN SUPPORT OFRESPONDENT OBAMA'S DEMURRER TO PETITION FOR WRIT OFMANDATE

. 10 should be dismissed as to all Respondents.

1 Here, Petitioners cannot make the requisite showing to justify issuance of a peremptory wri2 because they have failed to cite any legal duties that Respondents have allegedly neglected to perform3 Neither President Obama nor his campaign committee have any legal obligation to provide proof o4 the President's qualifications as a "natural born citizen" to the Secretary of State in order to establish5 his eligibility to appear on the ballot as a presidential candidate, much less for him to be able t6 engage in fundraising activities in California. Similarly, the Secretary of State has no ministerial dut7 to determine presidential candidates' constitutional eligibility for office before placing their name8 on the primary' or general election ballot. Because these pleading failures cannot be cured b9 amendment, Respondents' Demurrer should be sustained without .leave to amend, and the action

A . THE PETITION DOES NOT AND CANNOT STATE A CAUSE OF ACTIONAGAINST PRESIDENT OBAMA

Although the Petition devotes a significant amount of attention to presenting the "forensicproof' of President Obama's supposed ineligibility for office (Petition, ~ 19), the only relief soughby the Petition that is actually directed to the President himself is the demand that a permanentrestraining order bar him or his agents "from fund raising or soliciting funds under the guise of theelections cycle." (Id., ~~ 33-34; see also id., Prayer for Relief, ~ 2.) Nowhere, however, does thePetition identify any statutory or other legal basis that gives rise to a duty on the part of the Presidentto cease his fundraising activities in California, or to a correlative beneficial right on the part oPetitioners to the performance of any such obligation. Petitioners embellishtheir demand withcitations to two sections of the California Elections Code, but neither of them lends any coherenceto theirclaim, (Id., ~ 34 [citing Elec. Code, 350, subd. (b) & 20200 et seq.j.)" The Petition alsoquotes elsewhere from two other Elections Code provisions setting forth criminal penalties for theperpetration of election fraud (petition, ~~28-29 [citing Elec. Code; 18203 & 18500]), but again

25 4As noted above, Elections Code section 305, subdivision (b) (erroneously cited assection 350 throughout the Petition) simply defines the term "candidate" as it is used in ElectionsCode sections 20200 through 20203. Those sections, in tum, prohibit a person from using the name

27 of a candidate or a committee in the solicitation of campaign funds unless the person has receivedthe candidate's or committee's prior authorization to do so. Plainly, neither section provides any

28 support for the restraining order sought by Petitioners in this case.5

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1 neither statute sets forth any ministerial duty required to be undertaken by the President, much les2 one that creates a private right of action for its enforcement, nor is either section remotely related t3 a candidate'sfundraising activities.'4 In short, the Petition fails to set forth any conceivable legal basis for this Court to issue a5 order barring President Obama from fundraising in California. "It is the general rule applicable t6 the issuance of a writ of mandamus to furnish any basis for the relief sought, that the petitioner show7 that respondents are under some duty to do what the petition asks that they be required to do.8 (Mosesian v.Parker (1941) 44 Cal.App.2d 544,548.) Petitioners' allegations as to President Obama9 fall far short of this minimal standard and, as such, they must be dismissed.

B . 'THE PETITION DOES NOT AND CANNOT STATE A CAUSE OF ACTIONAGAINST THE OBAMA FOR AMERICA CAMPAIGN COMMITTEE

As with President Obama, the only relief sought by the Petition with respect to RespondentObama for America is the demand for a restraining order barring its agents from engaging in anyfurther fundraisingin California. (Petition" 33 & Prayer for Relief" 2.) The Petition makes no14 attempt to identify any duty owed by the campaign committee that would justify the relief sought

151617181920

however, aside from citing to the same irrelevant Elections Code provisions referred to above. Fothe same reasons that are discussed in the previous section, these statutes do nothing to cure thepleading's fatal deficiencies, and the demurrer must be granted as to Respondent Obama for Americawithout leave to amend.

C. 'THE PETITION DOES NOT AND CANNOT STATE A CAUSE OF ACTIONAGAINST THE SECRETARY OF STATE

21 Finally, the Petition fails to state a cause of action against Respondent Bowen, as well22 because it does not establish that the Secretary of State has a ministerial duty to determine the23 constitutional eligibility of President Obama or of any other presidential candidate before placing his24 or her name on the election ballot. Indeed, no such showing could be made by Petitioners as a matter25 of law, for the statutory scheme and the case law firmly establish that the Secretary of State does no2627 5Elections Code section 18203 makes it a crime for a candidate to knowingly file a false

nomination paper or declaration of candidacy, and section 18500 makes it a felony to fraudulently28 cast a vote or to aid or abet another in fraudulently voting.

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1 have the duty to do so.2 As noted in the Introduction, the Court of Appeal's decision in Keyes v. Bowen is directly o3 point with respect to this issue, and it is therefore worth quoting at length from the pertinent portion4 of that opinion:5 "The trial court also ruled that plaintiffs failed to state a cause of actionagainst Secretary of State Bowen because they did not establish that she had a6 ministerial duty to investigate and determine President Obama's eligibility for theoffice of President. Again, plaintiffs fail to establish error.

The Secretary of State is charged with ensuring 'that elections are efficiently8 conducted and that state election laws are enforced .... ' (Gov. Code, 12172.5.)9 With respect to primary elections, section 6041 directs the Secretary of Stateto 'place the name of a candidate upon the presidential primary ballot when he or she10 has determined that the candidate is generally advocated for or recognized throughout

the United States or California as actively seeking the nomination of the Democratic11 Party for President of the United States .... ['II] . .. After the 63rd day preceding apresidential. primary election, the Secretary of State may add candidates to the12 selection, but he or she may not delete any presidential candidate whose nameappears on the announced list except as provided in Section 6043 [concerning a13 selected candidate's unqualified affidavit.that he or she is not a candidate].'14 Section 690 1, which governs general elections, states: 'Whenever a politicalparty, in accordance with Section 7100, 7300, 7578, or 7843 [none of which concern15 constitutional eligibility], submits to the Secretary of State its certified list ofnominees for electors of President and Vice President of the United States, the16 Secretary of State shall notify each candidate for elector of his or her nomination bythe party. The Secretary of State shall cause the names of the candidates for17 President and Vice President of the several political parties to be placed upon theballot for the ensuing general election.' (Italics added [by Court].)18 The aforementioned statutes do not impose a clear, present, orministerial duty19 on the Secretary of State to determine whether the presidential candidate meets theeligibility criteria of the United States Constitution; Section 6041 gives the Secretary20 of State some discretion in determining whether to place a name on the primaryballot, but she has no such discretion for the general election ballot, which is21 governed by section 6901. With respect to general elections, section 6901 directs thatthe Secretary. of State must place on the ballot the names of the several political22 parties' candidates." (Keyes .v , Bowen, supra, 189 Cal.AppAth at pp. 658-660[footnotes omittedj.)"2324

6The final paragraph of Elections Code section 6041 was amended slightly subsequent to thecourt's opinion in Keyes v. Bowen. (See Stats. 2010, ch, 190, 9.) The section now provides, in its

26 entirety:25

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"The Secretary of State shall place the name of a candidate upon thepresidential primary ballot when he or she has determined that the candidate isgenerally advocated for or recognized throughout the United States or California as

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1 .The Keyes decision thus unequivocally holds that the Secretary of State is under no duty t2 independently screen presidential candidates for eligibility before placing their names on the state's3 ballot. To the contrary, under Elections Code section 6041, Respondent Bowen has an affirmative4 duty toplace the candidate's name on theprimary ballot whenever she determines that "the candidate5 is generally advocated for or recognized throughout the United States or California as actively seeking6 the nomination ofthe Democratic Party for President of the United States." Secretary of State Bowen7 has fully performed her duty under section 6041 by publicly announcing and distributing to the news8 media alist of the candidates that she has determined meet the statute's criteria and that she intends9 to place on the ballot for the June 5,2012, presidential primary election. (See "Generally Recognized

10 Presidential Candidates, June 5, 2012, Presidential Primary Election," Exh. A to Respondents'11 Request for Judicial Notice.) President Obama's name is rightly on the Secretary of State ,s published12 list of generally recognized presidential candidates.13 While section 6041 may be said to "giveO the Secretary of State some discretion in14 determining whether to place a name on the primary ballot" (Keyes v . Bowen, supra, 189 Cal.AppAth15 at p. 651), that discretion has nothing whatsoever to do with determining whether the candidate i16 constitutionally eligible for office, but relates solely to whether he or she is generally recognized a17 "actively seeking the nomination of the Democratic Party." Moreover, 'it is well established tha18 traditional mandamus does not lie to control an official's exercise of discretion, but only to compel19 an official to perform a ministerial act within the meaning of Code of Civil Procedure section 108520 subdivision (a). (See, e.g., Common Cause v . Board of Supervisors (1989) 49 Cal.Jd 432, 44221 Kavanaugh v . West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916 ["A22

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actively seeking the nomination of the Democratic Party for President of the UnitedStates. The Secretary of State shall include as criteria for selecting candidates the factof qualifying for funding under the Federal Elections Campaign Act of 1974, asamended.

Between the 150th day and the 68th day preceding a presidential primary .election, the Secretary of State shall publicly announce and distribute to the newsmedia for publication a list of the selected candidates that he or she intends to placeon the ballot at the following presidential primary election."

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4 the instant case, even Petitioners preswnably would concede that Respondent Bowen did not abus5 her discretion in determining that President Obama "is generally advocated for or recognized ... a6 actively seeking" the Democratic Party nomination for President. Indeed, the Secretary of Stat7 would have abused her discretion were she to have reached any other conclusion.'8 In swn, the Petition fails to establish any duty requiring the Secretary of State or any of th9 other Respondents to take the actions demanded of them by Petitioners. The demurrer must therefore

.10 be sustained without leave to amend, and the Petition must be dismissed in its entirety.

. .. . ..14 of the cause of action alleged in the pleading." (Code Civ. Proc., 430.10, subd. (a).) State court

15 simply do not have jurisdiction over the subject of a candidate's eligibility under the U.S. Constitution16 for the office of President of the United States. As the Keyes v . Bowen decision noted, "[t]he

. 18 ?The Petition's "Background Facts" section mentions two "historical examples" in which i19 is alleged that "California Secretaries of State have exercised their due diligence by reviewing

necessary background docwnents" in order to verify a presidentialcandidate's eligibility for office.20 (Petition, ~ 13.) Only the Eldridge Cleaver reference is supported by any citation to authority,

however. (See id., ~ 31 [citing Cleaver v . Jordan (1968) 393 U.S. 810].) More importantly, as the21 court explained in Keyesv. Bowen, the Cleaver case does not show that the Secretary of State has a

duty to investigate a presidential candidate's qualifications and remove him or her from the ballot22 if the qualifications are found lacking:23

11 n,12l3

17

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STATE COURTS HAVE NO JURISDICTION OVER THEQUALIFICATIONS OF CANDIDATES FOR PRESIDENT OF THE UNITEDSTATES OR THEIR FEDERAL FUNDRAISING ACTIVITIES

1 . ministerial act is an act that a public officer is required to perform in a prescribed manner i2 obedience to the mandate of legal authority and without regard to his own judgment or opinion3 concerning such act's propriety or impropriety, when a given state of facts exist."].) In any event, i

The demurrer must also be sustained because "[t]he court has no jurisdiction of the subjec

"The citation provided by plaintiffs merely reflects that the United States.Supreme Court denied a petition for writ of certiorari; it states nothing about the factsof the case. As we explained earlier, appellants' arguments must be supported byauthority,and we are. not obligated to search for it. Besides, the fact that formerSecretary of State Jordan excluded a candidate, who indisputably did not meet theeligibility requirements, does not demonstrate that the Secretary of State has a clearand present ministerial duty to investigate and determine if candidates are qualifiedbefore following the statutory mandate to place their names on the general electionballot." (189 Cal. App Ath at pp. 659-660.)

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MEMO OF POINTS &AUTHORITIES IN SUPPORT OFRESPONDENT OBAMA'S DEMURRER TO PETITION FOR WRIT OF MANoA TE

1 presidential nominating process is notsubjectto each of the 50 states' election officials independently2 deciding whether a presidential nominee is qualified, as this could lead to chaotic results." (183 Cal.App.4th at p. 660.) Rather, federal law sets forth the exclusive procedure by which objections4 to the qualifications of a presidential candidate may be registered and resolved. "[M]echanisms exis5 under the Twelfth Amendment and 3 U.S.C. 15 for any challenge to any candidate to be ventilated6 when electoral votes are counted, and [] the Twentieth Amendment provides guidance regarding how7 to proceed if a president elect shall have failed to qualify. Issues regarding qualifications for presiden8 are quintessentially suited to the foregoing process." (189 Cal.App.4th at p. 661 [quoting Robinso9 v. Bowen, supra, 567.F.Supp.2d at p. 1147].) Therefore, any challenge to President Obama's

10 eligibility to serve as President "is committed under the Constitution to the electors and the legislative11 branch, at least in the first instance" (ibid.) - not to the California Secretary of State or this Court12 Likewise, the California state courts have no jurisdiction over the fundraising activities o13 presidential candidates. Those activities are governed by the Federal Election Campaign Act (14 U.S.C. 431 et seq.), the Presidential Election Campaign Fund Act (26 U.S.C. 9001 et seq.), an15 the Presidential Primary Matching Payment Account Act (26 U.S. C. 9031 etseq.). None of thes16 statutes provides any authorization for the state courts to interpret, implement, or enforce it17 provisions. To the contrary, the Federal Election Campaign Act expressly declares that "the18 provisions of this Act, and of rules prescribed under this Act, supersede andpreempt anyprovision19 ofState lawwith respect to election toFederal office." (2 U.S.C. 453, subd. (a) [emphasis added].)20 The state courts simply lack jurisdiction over any aspect of the fundraising activities of candidates21 for federal office, especially candidates for President of the United States.22 CONCLUSION23 Barack Obama has served as this country's President for more than three years. This lawsui24 is only the latest in a never-ending parade of frivolous "birther" actions challenging President25 Obama's eligibility for office, all of which have been swiftly and decisively rejected by the courts26 This Petition, like its predecessors, has no basis in law, and the relief it seeks cannot be granted by27 this Court. For the reasons and upon the authorities cited above, Respondents respectfully request tha28 the Demurrer be sustained without leave to amend, and the action promptly be dismissed.

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1 Date: February It), 201223456789

101 1121314151617181 9202122232425262728

Respectfully Submitted,

STRUMWASSER &WOOCHERLLPFredric D. WoocherPatricia T. Pei

By ~~ 1IJua-L~ Fredric D. WoocherAttorneys for RespondentsPresident Barack Obama andObamafor America California

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Documents

Memorandum of Points and Authorities in Support of Demurrer