Update on the Purpura and Moran New Jersey Obama Ballot Access
By Mario Apuzzo, Esq.
April 10, 2012
Today, April 10, 2012, Nicholas E. Purpura and Theodore T. Moran had their Barack Obama primary ballot objection heard by Deputy Director and Administrative Law Judge, Jeff S. Masin, at the Office of Administrative Law, 9 Quakerbridge Plaza, Mercerville (Hamilton Twp.), New Jersey 08619. The case started about 9:30 a.m. and lasted to about 1:00 p.m. I represented the Objectors. Mr. Obama was represented by Alexandra Hill of the firm of Genova, Burn & Giantomasi of Newark, New Jersey.
We argued that Mr. Obama has not met his burden of showing that he is eligible to be on the New Jersey primary ballot by showing that he is a “natural born Citizen.” We argued that he has not presented any evidence to the New Jersey Secretary of State showing who he is and that he was born in the United States. We also argued that as a matter of law, Obama is not a “natural born Citizen” because he was born to a father who was not a U.S. citizen.
Obama’s attorney made a motion to dismiss the Objection in its entirety. She argued that it was not relevant to being placed on the ballot whether Mr. Obama is a “natural born Citizen,” where he was born, and whether he was born to U.S. citizen parents. She said that no law in New Jersey obligated him to produce any such evidence in order to get on the primary ballot. We argued that Mr. Obama under the Constitution has to be a “natural born Citizen.” We argued that under New Jersey law (the state constitution, statutes, and case law), Mr. Obama must show that he is qualified for the office he wishes to occupy and that includes showing that he is a “natural born Citizen,” which includes presenting evidence of who he is, where he was born, and that he was born to two U.S. citizen parents. We argued that the Secretary of State has a constitutional obligation not to place any ineligible candidates on the election ballot. Judge Masin denied Obama’s motion to dismiss and the case proceeded to trial.
After calling to the witness stand Mr. Moran and Mr. Purpura, who gave testimony as to why they brought the ballot challenge, and introducing documents showing there is a question as to Mr. Obama’s identity, I called Brian Wilcox to testify as an internet image expert. Mr. Wilcox was going to testify on how the Obama April 27, 2011, long-form birth certificate has been altered and manipulated either by computer software or by a human or both, producing a forged documents, and that since the image is not reliable, we need to see the original paper version. Obama’s lawyer objected to my proffered testimony. I then offered that I would not need to have Mr. Wilcox testify, provided that Obama stipulated that the internet image of his birth certificate could not be used as evidence by either Judge Masin or the New Jersey Secretary of States and that he presented to the court or the Secretary of State no other evidence of his identity or place of birth. Judge Masin also asked Obama’s attorney whether she would so stipulate. She did so stipulate, agreeing that both the court and the Secretary of State cannot rely on the internet birth certificate as evidence of Obama’s place of birth and that Obama has produced no other evidence to the court regarding his place of birth. She also argued that Obama has no legal obligation to produce any such evidence to get on the primary ballot. Judge Masin then took the issue under advisement. Having produced absolutely no evidence of his eligibility for the Office of President, Judge Masin will decide whether as a matter of law Obama has a legal duty to produce such evidence before he may be placed on the New Jersey ballot in light of the pending objection filed against him. If he decides that he does, then the Objection will be successful. If he decides that Obama has no such legal obligation, the Objection would fail on the first issue.
The second issue that Judge Masin addressed was whether the definition of an Article II “natural born Citizen” includes the requirement that the child be born to two U.S. citizen parents. Judge Masin relied heavily upon the fact that no court in the nation has yet ruled that Mr. Obama had to have two U.S. citizen parents at the time of his birth. I explained that most cases regarding Mr. Obama have been ruled in his favor on procedural grounds rather than on the merits of the definition of a “natural born Citizen.” He relied heavily upon U.S. v. Wong Kim Ark (1898) and its use of the English common law to define U.S. citizenship. We also discussed the Indiana Ankeny decision and the Georgia ballot access cases. I explained how Wong did not hold that Wong was a “natural born Citizen,” but only a “citizen of the United States” under the Fourteenth Amendment which does not define an Article II “natural born Citizen.” I explained that Wong distinguished between a “citizen” and a “natural born Citizen,” explaining how Justice Gray used Horace Binney’s distinction between both classes of citizens. I argued that it is error to rely upon Wong as though it held Wong to be a “natural born Citizen.”
I argued that the Founders and Framers did not adopt the English common law to define the term, but rather natural law and the law of nations which under Article III became part of the “Laws of the United States.” I explained that the definition of a “natural born Citizen” comes from natural law and the law of nations as commented upon by Emer de Vattel in Section 212 of The Law of Nations (1758), which definition was recognized as American “common-law” in Minor v. Happersett (1875). I also explained that Wong Kim Ark confirmed Minor’s definition (a child born in a country to citizen parents) and did not change it.
I explained that Congress through the Naturalization Acts of 1790, 1795, 1802, and 1855 abrogated the English common law as the law to define U.S. citizenship and that through those acts it told us that a child born in the United States to alien parents was an alien and not a “citizen of the United States.” I went through the historical evidence, including but not limited to Emer de Vattel and St. George Tucker, which shows that the Founders and Framers defined a “natural born Citizen” as a child born in the country to citizen parents and not as the English common law defined a “natural born subject.” I explained how Madison wrote to Washington that at the constitutional convention, the delegates did not adopt the English common law for the new republic. I explained that the English common law continued to have effect in the states, even being included in their constitutions and statutes, but not on the federal level where both the Constitution and Acts of Congress did not do the same as the states did. I explained that there is a constitutional distinction between a “citizen” and a “natural born Citizen,” and that the two terms cannot be conflated and confounded as per Article II, Section 1, Clause 5 and Chief Justice John Marshall in Marbury v. Madison, who told us that each clause of the Constitution must be given its own meaning. Judge Masin also reserved decision on the question of whether a “natural born Citizen” must be born to two U.S. citizen parents.
Judge Masin will be contacting counsel today or tomorrow morning either by telephone or email as to his decision, stating “yes” or “no” on both issues. He will then provide his written decision to the Secretary of State no later than Wednesday, April 11, 2012, at 10:00 a.m. Counsel will be able to object to Judge Masin’s initial decision. The Secretary of State will make the final decision. After her decision, the parties can then appeal to the New Jersey Appellate Division and then to the New Jersey Supreme Court. After that, the parties can appeal to the U.S. Supreme Court.
Mario Apuzzo, Esq.
April 10, 2011
Update April 9, 2012http://puzo1.blogspot.com/