Eligibility-Related Suit Against John McCain Dismissed from California District Court for Lack of Standing
Earlier today, the Hon. William H. Alsup of the U.S. District Court for the Northern District of California dismissed a lawsuit filed in early August by Markham Robinson, now chairman of California’s American Independent Party and elector pledged to a third-party candidate, against Arizona Sen. John McCain, the Republican National Committee and others contending that McCain is not a “natural-born citizen” of the United States as required under Article II, Section 1 of the U.S. Constitution and therefore could not assume the presidency. Robinson was looking to remove McCain from the ballot in California to better pave the way for his party’s own candidate, 2000 GOP presidential hopeful Alan Keyes.
Judge Alsup held, simply, that Robinson lacked standing to sue, saying that (1) Robinson has “no greater stake in the matter than a taxpayer or voter,” that (2) nobody who wanted to vote for Alan Keyes, whether in the primary or general election, was prohibited from doing so, and that (3) any assertion that the plaintiff’s chances of becoming an elector–and Keyes’ chances of making a significant splash in California, for that matter–would be augmented by McCain’s absence from the ballot in that state “would be wholly speculative.”
It is clear that mechanisms exist under the Twelfth Amendment and 3 U.S.C. 15 for any challenge to any candidate to be ventilated when electoral votes are counted, and that the Twentieth Amendment provides guidance regarding how to proceed if a president elect shall have failed to qualify. Issues regarding qualifications for president are quintessentially suited to the foregoing process. Arguments concerning qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress. The members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates. Therefore, this order holds that the challenge presented by plaintiff is committed under the Constitution to the electors and the legislative branch, at least in the first instance. Judicial review — if any — should occur only after the electoral and Congressional processes have run their course. Texas v. United States, 523 U.S. 296, 300–02 (1998).
I ran into Philip Berg yesterday at the courthouse here in Philadelphia and, knowing from previous cases against McCain what to expect from Judge Alsup in California, once again asked him about standing. I mentioned that, just as McCain and the GOP did against Markham Robinson, Barack Obama and the DNC will likely respond to the complaint with a similar motion to dismiss for lack of standing, and asked why he felt his situation was so markedly different than those of Robinson or John Hollander.
Berg maintained that this is a constitutional issue, and that Robinson did not necessarily frame it in that regard, and mentioned that during the initial hearing on the temporary restraining order Judge Surrick asked about his standing and was satisfied enough with the answer so as not to dismiss the case outright. Personally, I look at the constitutional nature of Berg’s suit as sufficient to satisfy questions of subject matter jurisdiction, not standing.
Berg needs to prove injury, and just being a taxpayer–or a voter–is not enough to satisfy the standing requirement. Perhaps, and this is just me having diarrhea from the recesses of my head, if he were to somehow have banked on Obama’s success, whether as a fundraiser or contributor, he might be able to show injury in fact. Is public policy really enough?
Berg needs to prove that his injury is related to Obama’s candidacy. If he were a contributor or fundraiser and that line of thinking was accepted, perhaps he could show that his money, time and reputation were contributed, spent and staked on a political candidate which, according to his argument, shouldn’t be there in the first place. (Again, the fundraiser/contributor-as-standing is mere amateur-hour hypothesis on my part.)
Finally, Berg needs to show that proper adjudication of the matter will provide a remedy for that injury. In other words, how would Obama being thrown from the ballot help provide redress for any damage caused by his prior candidacy?
I asked him about it, and he promised to get back to me in a little while. When he does, I will surely relay the information here.
Furthermore, comment from Markham Robinson is also pending.