After receiving word from Alan Keyes’ camp as to their take on the standing issue–it was patently unfair for me to have gone two days without providing the other perspective, and for that I apologize–I decided to update this piece and move it back to the top (for now, of course, as new material should come later today) so their take can receive the attention it deserves.
Former Reagan administration official, Ambassador and presidential candidate Alan Keyes was among petitioners who filed an action last Thursday in the Superior Court of California seeking a court order enjoining Barack Obama’s California Electors from signing the Certificate of Vote until documentation showing the president-elect’s constitutional eligibility to serve as president is produced.
“I and others are concerned that this issue be properly investigated and decided before Senator Obama takes office,” Keyes said in a statement released after the suit was filed. “Otherwise, there will be a serious doubt as to the legitimacy of his tenure. This doubt would also affect the respect people have for the Constitution as the supreme law of the land. I hope the issue can be quickly clarified so that the new President can take office under no shadow of doubt. This will be good for him and for the nation.”
In my opinion, however, Alan Keyes will likely not be found to have standing to sue Secretary of State Debra Bowen, President-elect Barack Obama, and others in the Superior Court of California, and for that reason his legal action will most likely go the way of many of the other, similar cases filed across the country — dismissal.
The question is whether California Superior Court adheres to standing requirements more broad than the standing rules employed by the federal courts and enforced by the U.S. Constitution’s Case and Controversy Clause. Under those rules, a similar eligibility-related suit filed by American Independent Party of California Chairman Markham Robinson–who also appears as a petition in yesterday’s action–against Bowen and Sen. John McCain failed back in August.
That case, however, was filed in U.S. District Court for the Northern District of California–where the federal rules apply–and did not feature Alan Keyes, the America’s Independent Party’s candidate for president of the United States, as a party. To have standing to sue in federal court, a plaintiff must show (1) a particularized injury-in-fact, (2) a causal relationship between that particularized injury-in-fact and the actions of the defendant or defendants, and (3) that proper adjudication of the matter will provide redress for that injury. Robinson, according to the Hon. William Alsup, failed the test for standing on several levels.
First, Alsup wrote, because he was suing merely as a voter and as “a mere candidate hoping to become a California elector pledged to an obscure third-party candidate,” he had “no greater stake in the matter than a taxpayer or voter.” Second, because Robinson himself was not a candidate in competition with McCain, he could not show proper causation for that injury. Finally, Judge Alsup’s statement that Keyes’ “presidential prospects” as an “obscure, third-party candidate” were “theoretical at best” suggests that Alsup believed that Keyes’ chances of winning California (or beyond) would still have been slim, even with McCain being removed from the state ballot through a favorable decision for Robinson.
Due to the latter, I find it hard to believe that an action filed by Keyes against Barack Obama in federal court would fare any differently — he might be able to show particularized harm, he might be able to show that Obama caused that harm, but he’d be hard-pressed to show that he would have prevailed in California, even if Obama’s name had been stricken. This action, however, was indeed filed in California state court, and that’s where the question of standing once again rears its ugly head.
Tom Hoefling is chairman of both the America’s Independent Party National Committee and the Alan Keyes for President 2008 campaign committee and, with regard to the case at hand, is acting as the petitioners’ spokesman. Hoefling says that, regardless of the particulars of the standing doctrine in California or beyond, it is the Constitution that matters and the importance of the presidency which is paramount.
“I believe all American citizens have standing in this matter, in that they have the right to the assurance that the Constitution is being followed,” Hoefling said. “The presidency is the one office that represents the whole body of the sovereign people of the United States. Each of the members of that sovereign body has a vested interest in making sure that the occupant of the office of the Chief Executive–the individual issuing executive orders, issuing orders to our military, negotiating treaties, vetoing and signing legislation, etc.–be constitutionally legitimate.”
In fact, Section 16100(b) of the California Elections Code specifies that “[a]ny elector of a county, city, or of any political subdivision of either may contest any election” if, among other reasons, “the person who has been declared elected to an office was not, at the time of the election, eligible to that office.” In yesterday’s filing, however, Keyes and the other petitioners appear to rely solely on 3 U.S.C. 8 to justify and confer standing:
3 United States Code (U.S.C.) Section 8 provides, “The electors shall vote for President and Vice President, respectively, in the manner directed by the Constitution.” This federal statute confers upon each elector an affirmative duty to discover whether the candidate for President for which the elector is seeking election is a “natural born” citizen. Otherwise, the elector would not know if his vote was being cast in the “manner directed by the Constitution.”
Given this constitutionally mandated duty, PETITIONERS have standing to bring this Writ before this Court.
I’m not so sure it will be enough. Even if they had cited Section 16100(b), I’m not sure if it would be enough.
When it comes to state law, the issue of standing is often difficult to wrap your head around. At the federal levels, standing is an issue of jurisdiction, essentially a measure of the particular court’s authority under the Constitution to hear the case at hand. In state courts such as the Superior Court of California, however, standing is looked upon not as a jurisdictional question but more like an element of the particular cause of action itself. In unfair competition cases (think “trademark,” not “election” competition), for example, the requirements for standing are injury-in-fact, monetary loss, and the causal relationship of the injury and loss to the defendants’ actions.
In other types of cases, however, standing acts more like that jurisdictional requirement seen in federal cases, and in those cases, California appears to look at the traditional federal doctrine–injury-in-fact, causation and redressibility–to determine questions of whether or not someone has standing to sue.
Keyes’ chances, in my opinion, boil down to whether the element of redressibility is included in the test for standing for this particular cause of action. Because he did in fact appear on the California ballot along with Barack Obama, it seems likely that Keyes could very possibly show the injury-in-fact and causation that Robinson–and Philip Berg, and others–could not, especially considering the “sliding scale” approach to injury-in-fact employed by Berg in his petition for writ of certiorari, but the question remains as to whether redressibility is a factor. Alsup expressed, in the Robinson decision, doubts that striking McCain from the ballot could have significantly helped Keyes in California and beyond — if redressibility is figured in as an essential element of standing here, the Ambassador might run into the same problem.
Considering what I believe will be the eventual outcome of this matter, as well as the final dispositions of the other related matters filed from coast to coast, I cannot help but be disappointed that none of these cases have been heard on the merits. Of course, I understand completely the reasoning behind the standing doctrine, but that doesn’t mean I have to like it.
Hoefling, it seems, feels that the court systems’ inaction represents a dangerous trend in this country, as he told America’s Right that “the courts have become an oligarchy” and that continuing down our current path could mean disaster for the United States of America as we know it.
“I saw the Ohio case, in which the Republican Party was not recognized as having any standing to assure that voter fraud wasn’t occurring, as one more bit of evidence that government of, by and for the people is being destroyed,” he said, referring to last month’s decision in Brunner v. Ohio Republican Party, in which the U.S. Supreme Court decided not to uphold an order directing Brunner, Secretary of State in Ohio, to check for voter fraud. “If the people themselves, their electors, their political parties, or their candidates for public office, don’t have standing – don’t have access to the courts to have their grievances redressed – the Constitution is now, in practice, a dead letter.”
Without getting too complicated, the Court’s decision in Brunner is important with regard to the eventual disposition of Keyes’ action, as it essentially held that there is no private, individual right to sue unless Congress deliberately and explicitly creates the right to do so — language similar to that employed by the Hon. R. Barclay Surrick when he dismissed Philip Berg’s case against Barack Obama from the district court in Philadelphia.
Personally, I wonder how much of the reliance on procedure, how much of the unwillingness to expand the pie when it comes to the standing doctrine, comes from an inherent reticence regarding election-related questions. In his dissent in Bush v. Gore, Justice John Paul Stevens famously expressed his view that the Court was treading on dangerous ground:
Although we may never know with complete certainty the identity of the winner in this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.
Across the country after that decision, newspaper headlines confirmed Stevens’ worry. The San Francisco Chronicle ran a piece entitled “Turbulent Election Taints Top Court’s Reputation for Neutrality.” The New York Daily News’ lead headline read “High Court’s Integrity at Risk.” The Boston Globe chose “Supreme Court Compromises its Legitimacy.” Confidence was indeed in low supply.
Three years later, when the ACLU filed suit in California seeking suspension of the recall of former Gov. Gray Davis on grounds that an October 2003 vote–rather than a vote in March of 2004–would disenfranchise minority voters, the Ninth Circuit Court of Appeals echoed Stevens’ sentiments when it held that the recall should proceed as planned.
Interfering with impending elections is extraordinary, and interference with an election after voting has begun is unprecedented. Investments of time, money, and the exercise of citizenship rights cannot be returned.
The judiciary was wary of the consequences of its decision in Bush v. Gore, and that uneasiness manifested itself in California a few years later. I believe that it is once again showing itself now. With regard to the questions regarding Obama and the second Article of our Constitution, it seems likely that the standing doctrine provides the courts with the perfect excuse to avoid forcing the return of those investments of time and money spoken of by the Ninth Circuit. The courts, it seems, want nothing of this pressing matter. If standing is to be granted to individual voters, they say, responsibility for doing so should fall onto the shoulders of Congress.
Hoefling, however, feels that this is absolutely a matter for the courts to decide.
“An impartial judiciary,” he said, “sworn to uphold and defend the Constitution, is ideally suited to settle election-related controversies — particularly a case like this one in which it couldn’t be clearer that this imperative sworn duty is central to everyone involved, including the judges who are deciding the case.”
I tend to agree. The judiciary has a long-standing tradition of immersing itself in questions of campaign finance, gerrymandering, party primaries, voter rights and more — the question of a presidential candidate’s eligibility to hold the office of president seems to be pertinent and worthy of adjudication on the merits. Still, given the attitude of the courts in the past, given the reasoning behind the dismissal of Berg’s suit from federal court in Pennsylvania, David Neal’s action from magistrate court in Ohio and, most importantly, Robinson’s prior suit against McCain, I cannot help but feel as though this case, despite being in a state-level court, will be dismissed on grounds of lack of standing. I wish that weren’t the case, but I fear it is.
Of course, I am not an expert on any of this, much less the specifics of California state law. I could very well be wrong, and hope that I am. Still, please remember what I wrote on Wednesday — America is bigger than one man, president-elect or not. While the concentration on so many on these legal actions is certainly understandable (it is our Constitution, after all), I cannot stress enough my hope that the same vigilance would be given to an Obama presidency should these challenges not pan out as hoped by so many.
Hoefling is more optimistic, and stresses that he has high hopes that this “vitally important matter” will not go the way of the others.
“My hope for this action is that Sen. Barack Obama will simply make the documents available to the American people which prove that he is constitutionally capable of serving as President of the United States,” he said. “If he will not, or cannot, he should be immediately disqualified from holding such office.”
“It’s very simple, really. A grammar school child could understand it.”