But I don't see where anyone has standing to challenge the party's primary process to determine the number of delegates to be apportioned to potential candidates at the convention, unless they are challenging it through the party's procedure, set out in their Selection Plan.
A federal court would certainly have jurisdiction to hear a challenge to a constitutionally infirm primary ballot, such as one that enforced a "white primary" system of the sort previously used in the South by the Democratic Party to disenfranchise black voters in states where the primary was effectively the entire election (as only Democrats would ever actually be elected). I assume a state court would have jurisdiction to challenge a constitutionally infirm primary ballot based either on the federal or the state constitution. I would find it quite peculiar if the state body itself had no power to stop itself from proceeding on an illegal course, considering its broad discretion in interpreting its own statutory mandate and that it is the entity with the most experience interpreting that mandate.
I suppose it is possible, but it would be very bad policy.
This seems to be a grant of general jurisdiction over primary and election-related activities:
To take such other action, consistent with law, as the board may determine to be conducive to the fair, legal, and orderly conduct of primaries and elections.
O.C.G.A. § 21-2-31(10).
Removing a clearly ineligible candidate would seem to fall under that description.
It's arguable this section, being more specific, is more applicable:
(5) To investigate, or authorize the Secretary of State to investigate, when necessary or advisable the administration of primary and election laws and frauds and irregularities in primaries and elections and to report violations of the primary and election laws either to the Attorney General or the appropriate district attorney who shall be responsible for further investigation and prosecution. Nothing in this paragraph shall be so construed as to require any complaining party to request an investigation by the board before such party might proceed to seek any other remedy available to that party under this chapter or any other provision of law;
(6) To make such recommendations to the General Assembly as it may deem advisable relative to the conduct and administration of primaries and elections;
O.C.G.A. § 21-2-31(5,6).
The Secretary of State, of course, is on the State Elections Board, as are representatives of the two political parties and two other people not running for office. I would consider the grant of general jurisdiction over primaries and elections in the statute, both what I quoted and as interpreted by the Attorney General opinions mentioned earlier in this thread, to extend to deciding what is properly on the ballot.
O.C.G.A. § 21-2-32 governs the filing of legal actions by
the Board, but it doesn't seem reasonable to require the Board essentially to sue itself over how it conducts its own enforcement of the laws that are its job to apply.
This statute governs hearings before the Board.
Hearings before board
The State Election Board may examine under oath any person concerning any matter connected with or bearing on the proper discharge of its duties; and any member of the board may administer such oath. The board shall have full power to subpoena persons and papers and to compel the witnesses to answer under oath touching any questions which may properly come before the board and to take, through its agent, the depositions of witnesses. The board, in investigating the administration of primary and election laws within a county or any frauds or irregularities in primaries and elections held therein, shall conduct each hearing concerning same at a place within such county. No witness shall be compelled to attend if he or she should reside more than 100 miles from the place of hearing by the nearest practical route; provided, however, that the board may compel the taking of his or her testimony by deposition in the county of the residence of the witness. The sheriff of any county, or his or her deputy, or agent of the board shall serve all processes issued by the board; or the same may be served by registered or certified mail or statutory overnight delivery; and the production of an appropriate return receipt issued by the post office or commercial delivery firm shall constitute prima-facie evidence of such service. In case of the refusal of any person subpoenaed to attend or testify, such facts shall be reported forthwith by the board to the appropriate superior court, or to a judge thereof, and such court or judge shall order such witness to attend and testify. On failure or refusal to obey such order, such witness shall be dealt with as for contempt. Any witness so subpoenaed, and after attending, shall be allowed and paid the same mileage and fee as now allowed and paid witnesses in civil actions in the superior court.
O.C.G.A. § 21-2-33. It would seem odd to give the Board power to hold hearings over "any matter connected with or bearing on the proper discharge of its duties" and to compel witnesses to testify if it could not actually make a decision on that basis. Of course, the "frauds and irregularities" language echoes the language authorizing the Board to bring legal actions in the previous chapter and thus arguably does not confer any additional jurisdiction.
I think, therefore, subject to judicial review, the Board can decide the factual issue of whether Obama is an NBC. It presents no particular analytical difficulties, is within choices left to the State Election Board (composition of primary ballots) and in this case, is the most efficient forum for fact-finding. I don't see them dodging it unless Orly screws it up in a jurisdictional way.
The statutes do not clearly grant specific jurisdiction over the eligibility of a Presidential candidate.
So to argue the other side a bit, the statutory language states:
Candidates may qualify for an election by virtue of:
(1) Nomination in a primary conducted by a political party;
(4) In the case of an election for presidential electors, nomination as prescribed by rules of a political party;
O.C.G.A. § 21-2-130(1,4).
"As an administrative body created by the legislature, [a state agency] has only such powers as the legislature has expressly, or by necessary implication, conferred upon it.' Bentley v. State Bd. of Med. Examiners, 152 Ga. 836, 838 (1922)." 2000 Op. Att'y Gen. 2000-2.
2005 Ga. AG LEXIS 3 (Ga. AG 2005). However, I think the supervisory power of the Board, by necessary implication, includes the power to decide what to put on the primary ballots for the state. In this case, to do that requires only a simple factual determination that I believe the Board is capable of making.
The same AG opinion interprets O.C.G.A. § 21-2-172(b)(1)(B) as establishing that the
SOS has the authority to accept or reject rules (1)(B) filed by political parties or bodies seeking to nominate presidential electors or candidates of political bodies by convention.
Again, it seems odd to give them that power, to reject the rules a party uses in nominating candidates, while not giving them the power to supervise in any way how they actually enforce those rules. I imagine they could reject a party's proposed rule only to nominate ineligible candidates, but not one that requires the party only to nominate ineligible candidates, so if the party actually wants an ineligible candidate on the ballot, despite having a rule against it, I don't see why the Board can't
In any case, while there's nothing explicit giving them jurisdiction (or at least I don't see enough likelihood of turning one up to keep searching for one), I don't see why they wouldn't have it under their general powers.
Edit: Turning a can into a can't so the second to last sentence isn't quite so unintelligible. It's still pretty bad but I'm done with it.