Berg v. Obama Update — Tuesday, September 16

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.



  1. Anonymous says:

    Since Berg was a contributor to Clinton’s race, it seems to me that that is where his standing would come from; his money and efforts went to waste because of Obama’s fraudulent competition.

    It seems like a class action suit would be the way to go, if such a thing is possible in this situation. Get a bunch of Clinton supporters together. Were it not for Obama’s fraud, their candidate would be on the ticket.

    Jeff, thanks for all the work on these stories!

  2. Anonymous says:

    Quote:“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.”

    Assume Berg doesn’t meet this test. Is it possible for interested individual(s) who do(es) meet the test join the suit prior to it being dismissed for lack of standing?

  3. Jeff Schreiber says:

    Here’s the way I look at it…

    The class action angle, which I thought about today, might be out the window because–I could be wrong–in order to join a given class, you must be able to be eligible to sue individually.

    On joining, there have been a few people who have show interest in joining the suit. I WOULD NOT. The procedural aspects of this case are very delicate, and some uninformed nutjob who tries to join this thing might just be enough to have the entire action be perceived as less credible than it actually is. Let Berg handle it — IF YOU HAVE A LEGAL OPINION AND WANT TO HELP, CONTACT BERG HIMSELF. He’s been given all sorts of advice from all over the place (I’ll bet the special master thing wasn’t necessarily his own idea) but any “help” further than that might do more harm than good.


  4. suek says:

    So who _does_ have standing, assuming that the Obama suit has merit in the facts?

  5. Anonymous says:

    it’s incredible that the fed court doesn’t need to look into this for every candidate.why it’s needful that mc cain had to clear his citizenship this spring, but obama doesn’t , is puzzling.

  6. John Galt says:

    Berg as an American citizen who votes for the President of the US has been defrauded.

    Berg is claiming that Obama has deprived Berg of his 12th Amendment rights by fraudulently running for the President.

    If Obama had not run for President than surely Clinton who Berg supports and would have become the nominee of the DNC.

    Now that Obama has used fraud to replace Clinton as the DNC nominee than Berg can only vote for Clinton as a write in, which might not even be possible in Pennsylvania.

    In any case as a write in Clinton has no chance to win.

    So by Obama using fraud to effectively replace Clinton as the DNC presidential candidate Obama has deprived Berg of his constitutional right to vote for the Presidential candidate of his choice who as the DNC candidate would have had a reasonable chance to become President.

    So Obama through fraud has effectively deprived Berg of his constitutional right under the 12th Amendment.

  7. Anonymous says:

    Excuse my lack of knowledge on this ,but wouldn't it be up to Congress, or the attorney general, or some judicial district to rule on what I deem a constitutional issue ?? It should be the responsibility of the U.S. Gov't to check into this & it should be a simple matter of proving whether Mr. Obama is a natural born citizen or not. I'm trying to compare this with Arnold Schwarzenegger (sp?).If he ran for president & he told the public that he was a natural born citizen, does somebody actually have to sue him & win to prove he was born in Austria ??

  8. Ian Thorpe says:

    This is getting “curiouser and curiouser as Alice said in the book.

    I haven’t a clue about American constitutional law but I remember from my days as a candidate at local level here in Britain (and the law applies right through the system) that any voter who has evidence that an electoral fraud may be about to be committed has a duty to go not to the police or a court but to an electoral official (here designated The District Returning Officer)
    Now Phillip Berg is a lawyer she he certainly knows the correct process to go through the courts but in the case of a possible crime that could undermine the consitution I’m surprised there is no process to deal with the case and if necessary put it before the Supreme Court.

  9. Me says:

    Today seems like a good day to mention again that our Constitution should not be stomped on or ignored by having someone ineligible run for President. Obama’s eligibility to run still very much remains in question. has indicated that Obama’s Hawaiian birth certificate was confirmed as authentic, so there must be no question since they are supposedly an unbiased group. Let’s just forget the inconvenient truth that FactCheck is an Annenberg operation, the same group that funded the Annenberg Challenge. Yes, the same Annenberg Challenge of which Ayers and Obama were directors. So, there is absolutely no chance of a conflict there, right? That can’t be, right? I guess Philip Berg knows about that too and will (or already has) fully investigated that angle?

  10. Kyoon says:

    It’s even possible that, to let the masses swallow easier the “ineligible Obama” script, the illuminati will additionally include the “ineligible McCain” act.
    Last but not the least, the illuminati would also finally prove End Times Prophet wrong, who predicted McCain loser against Clinton ….
    The “Clinton elected 2008 president” script. explained worldwide first and long ago by one and so far echoed only by one (Kyoon):

  11. Jet says:


    Not only did the judge rule that Robinson had no standing, but he also ruled that the law at the time made McCain a natural born citizen because his parents were US citizens. In Obama’s case, it’s more murky since his mom was an underaged teen and his father was a foreign citizen. Here’s the news report:

    SAN FRANCISCO (AP) – A federal judge has thrown out a lawsuit seeking to remove John McCain from the California ballot because he was born in the Panama Canal Zone.

    U.S. District Judge William Alsup ruled late Tuesday that the law at the time of McCain’s birth automatically granted citizenship to offspring of U.S. citizens.

    McCain’s parents were both citizens when McCain was born Aug. 29, 1936, in the Panama Canal Zone, a U.S. territory where his father was stationed with the U.S. Navy.

    Alsup said Congress passed a law the following year specifically to “remove any doubt as to persons in Sen. McCain’s circumstances in the Canal Zone,” thus “retroactively rendering Sen. McCain a natural born citizen, if he was not one already.”

    The Constitution requires that only “natural born” citizens hold the presidency, a term on which the Founding Fathers did not elaborate.

    The judge also said the plaintiff, Markham Robinson, chairman of the American Independent Party, had no standing to file the lawsuit because he is not a candidate for president.

    McCain said last February that the issue was put to rest 44 years ago when Republican Barry Goldwater sought the presidency. Goldwater was born in Arizona when it was a territory.

  12. Jeff Schreiber says:

    How lovely that the Associated Press decided to pick up that suit without mentioning the one across the country.

  13. Me says:

    I find it frustrating and baffling that this story has not been picked up by ANYONE in the mainstream media. Perhaps it has not been picked up because media outlets have concluded that the suit has no merit and it is a waste of time and resources. But the suit is proceeding whether it has any merit or not, whether it is frivolous or not, whether the suit will be dismissed or not. Only time will bear out which is true. We shall see. The suit alone is newsworthy but it hasn’t been dismissed yet either and I would think that fact too would be newsworthy.

    Perhaps pursuit of this story by the mainstream media might shed light on areas that liberals would rather leave in the dark or because it might damage the Obama campaign through negative publicity. What about less liberal sources, though? It is really baffling to me that nobody in the MSM has publicized this suit. Whatever the outcome, the questions MUST be answered fully and completely, we must have full disclosure, so that this issue can be put to rest. The Constitution MUST be upheld. Altering or ignoring the Constitution in this area is one change this nation does not need.

  14. Jet says:

    This will at least shut up the Obamabots who keep bringing up McCain’s citizenship status whenever anyone dares to question Obama’s own citizenship status.

  15. Me says:

    Isn’t there some legal way to verify facts? There has been much internet gossip, but I would like facts. The link below is to a blogspot from a blogger who makes some assertions that I cannot verify as true or untrue, but the assertions sound reasonable. Is there a way to verify that “negro” would have been the only term used in reference to his father on Barack Obama’s birth certficate in 1961, so any other term is, in fact, suspect? Can we please just get to the truth?

  16. Me says:

    If an African American born in 1961requested a copy of their birth certficate in 2008 and paid the associated fees, they would be issued a copy of the original document, and the data would not be altered or updated to reflect current societal terminology, correct? It would be a copy of the original. Back in 1961, would the term “African” have been used in place of “Negro” to denote race of involved individuals on birth certificates/documents anywhere in the U.S.? Is this a valid line of questioning and investigation?

  17. AJH says:

    In addition to the focus on whether he’s natural born with regard to the Presidency, I assume that Illinois law probably requires that a person be a US citizen to run for the US Senate (though you can be foreign born and be in the Senate if you’ve become a citizen).

    It seems there might be room for a lawsuit in Illinois focusing on proving that he took the Oath of Allegiance (or whatever you need to do) after he was obviously an Indonesian citizen when he was 20. If he never did than he shouldn’t be in the US senate — and oh, by the way, he also shouldn’t be running for Pres. regardless of where he was born. Of course, he could probably quickly become a citizen – just swear before a judge, but you would think that the press would cover THAT if it happened in the next few weeks!!

    Also, while he may have registered for Selective Service (I think they found that he had??), you don’t need to be a US citizen to register for that.

  18. Me says:

    There is much internet chatter that on or about October 5, Biden will excuse himself from the ticket and that Hillary will then be chosen as VP. If Obama is found to be ineligible to run for President, then I guess it is possible that Hillary will run against McCain and possibly be the next POTUS.

  19. nobama08 says:

    regarding the birth certificate shown online for Barack Hussien Obama the font is not that which would have been used on a “1961 typwriter” that is a more recent font. RIGHT?

  20. Anonymous says:

    This is a very interesting site and this is a very interesting thread.

    I’m not a lawyer but has it occurred to anyone else that if Obama is not a US citizen, Hillary would have gotten her detectives (in their down-time, when they weren’t chasing around snooping on Bill) to check this out. I’ll just bet she did do that… How about if someone asks her if she would share her file on him. (You HAVE to know that she has one!) She might find it faster that those files on her coffee table, in the White House…. I’m just sayin’.

Speak Your Mind