Duke v Cleland certainly raises the 14th Amendment

If I'm following this correctly, the President won't technically be a candidate until the vote on the convention floor.

What she did say is slightly more subtle. She states that he is 'not yet' a candidate for President as the presidential preference primary only deals in appointing of delegates. As to the election part, this is more subtle, if not qualifying for an election then for what? Was President Obama ever certified?

I believe that language effectively incorporates Jablonski's argument as to why Obama is not a candidate under § 21-2-5.



Actually, she cites "associational rights," which are generally recognized under the First Amendment. However, it is the Fourteenth Amendment which incorporates those rights against the states. I have certainly seen states courts cite the Fourteenth Amendment in applying rights in this manner before.

If there's any reason the Supreme Court of Georgia would want to look at this, it is to say it a bit more elegantly.

I'm sure you do, Loren. And I suspect you really enjoyed the circus that came to town, only a short block from your own offices.

As for your contention that President Obama is a candidate for president. No, he's not. He will be when nominated at the Democratic party convention. I know you understand ripeness. To take a contrary position is to torture the concept.

A person is a "candidate" if he or she is running in an "election", the results of which will determine the office to be filled. On Tuesday, the state of Georgia will be holding a "Presidential Preference Primary". Thee results of that election will guide the selection of convention delegates to political party conventions, under terms and rules set by the party, which can in turn give the primary results whatever weight they determine.

There are no "candidates" at all in the preference primary, because no one gets "elected" to anything. The preference primary is more akin to a vote on an initiative, because it is asking the Democratic voters in Georgia who they "prefer"for President. If there are multiple candidates on the ballot, and one of them "wins" the primary but withdraws from the race before delegates are selected, it is quite possible that the results of the primary will never be carried out. (For example, lets assume that Newt Gingrich wins on the Republican side but quits the race before the end of the week based on outcomes on other super Tuesday states -- the Georgia GOP will end up selecting non-Gingrich delegates to their convention).

In November, of course, the "candidates" are the slate of electors, not the person they are pledged to support.

Except it only raises it in the context of the Fourteenth Amendment rights of the person wanting to be included on the ballot against the party's wishes; the court decided that the wannabe-candidate's Fourteenth Amendment rights, and the rights of those who supported him, were not being infringed. The decision says nothing whatsoever about any Fourteenth Amendment rights of the Party.

That's rhetorically nice, but the Code repeatedly refers to persons on the ballot in Presidential primaries as "candidates." Specifically, OCGA 21-2-193, the very statute that governs who appears on Presidential Preference Primary ballots, is entitled "List of names of candidates to appear on ballot." The relevant part:

"the state executive committee shall submit to the Secretary of State a list of the names of the candidates of such party to appear on the presidential preference primary ballot."

OCGA 21-2-196 also refers to persons on a PPP ballot as "candidates." And 21-2-197. And 21-2-198. And 21-2-200. The Democratic Party's own submission letter used the word "candidate" at least three times.

But the statute allowing challenges is limited to a certain type of candidate, i.e. those who have been "certified" by the state party. And the party can't do any "certifying" until after their nominating convention.

Why don't you offer to represent him on his appeal to the Georgia Supreme Court? You seem to have the law down pat. (At least the law you would argue.) If you don't know how to get in touch with him I'm sure someone here would know how to reach him.

And then you can be actually involved in a birther case! The circus will be in your own office, not merely down the block!

As far as I could tell, Judge Wright's ruling seemed to rely on case law as well as statute. I've looked through the Duke v Cleland cases she cites. I'm not sure why they wouldn't or shouldn't apply here. While those cases dealt with the right of the major political parties to remove a candidate from their primary rather than an attempt by the state to remove a candidate, the underlying principles would still seem to apply: the political parties have a Constitutional right to determine who should best serve as their standard bearer.

When it comes to the general election, I really don't see how any of the states could pass legislation vetting candidates without running into substantial Constitutional trouble. There are a lot of things that the Constitution leaves to the states, but the selection of the President is not one of them. That process is very clearly set out in the Constitution - it's handled by the Electoral College and the Congress. I'm not sure how a state can restrict who the electors may vote for. IIRC (it has been a while) there was a fair bit of discussion in the wake of the 2000 election about "faithless electors", and a great deal of speculation about whether even the laws binding electors to a candidate could withstand scrutiny.

In other news....

And like I said, I think there might be merit to that argument. But since Judge Wright never mentions anything about candidates being "certified," much less say that that's the basis for her holding, I don't think that explains why she held that Presidential primary candidates aren't "candidates."

In other words, I think she may have reached the right conclusion, but for a lot of wrong reasons.

Except the states *do* control who appears on Presidential ballots, and Georgia is notoriously bad about excluding them. Ralph Nader has never appeared on a Georgia Presidential ballot. No Green Party candidate, or Constitution Party candidate, or Socialist Party candidate has, to my knowledge, ever been allowed on a Georgia Presidential ballot.

Of course, the reasoning there is effectively the state saying 'We don't think your candidate is popular enough.' But the end is the same: unless certain state laws are satisfied, the state can and DOES prohibit Presidential candidates from appearing on the ballot all the time. Even if, like Nader, they appear on virtually every other state ballot in the country. (I think in 2000, due to Perot's performance in 1996, Pat Buchanan's name appeared on EVERY state ballot...except Georgia's.)

So they use a confusing conflation of terms. So the judge has to look beyond this and understand if a presidential preference primary involves any candidates running and observed that it only involves the election of electors not candidates. The judge looked for the intent of the law not just the letter of the law which is quite confusing in itself.

as I said before, there are candidates and candidates. In the presidential preference primary there are no real candidates being elected or nominated for anything. There is no election of candidates other than electors really. So presidential preference primaries are somewhat confusing.

Loren, whether she spelled it out or not, its implicit in the statute. The statutes doesn't say that a challenge can be brought against "any" or "all" candidates -- it says that the challenge can be brought against:
a) a candidate who has submitted a qualifying affidavit, or
b) a candidate who has been certified by the state party.

There's no claim that Obama falls under "a", so it comes down to "b". For purposes of illustration, we can call that type of candidate a "certified candidate".

So then we can read Judge Wright's statement to be, Obama is not a [certified] candidate because the presidential preference primary does not require candidates to be certified, because the primary itself is not a direct election of the candidate.

Jablonski raised multiple reasons why the challenge statute didn't apply in his motion; the Judge chose to rely on some but not all of his stated arguments -- but that doesn't mean that she was rejecting the others. Any one of several reason is enough.

Keep in mind that Sec. 21-2-2(5) (Definitions), defines elections to generally exclude primaries:



The challenge statute, 21-2-5(b), specifies:



So, is there a context that "clearly requires" the presidential preference primary to be deemed an "election" in the context of a challenge based on candidate qualifications?

If so, what would that be? (i.e., what statute or case law would support that?)

I think that logically flows from the same analysis that led the Court to reject Duke's fourteenth amendment claim.

No, Loren is making the mistake of an equivocal reading of the statute, because nothing in Georgia law says that all "candidates" are subject to challenge. Rather, the law is that there are 2 types of candidates subject to challenge:

1) Candidates who are "certified by the state executive committee of a political party"
and
2) Candidates who file "a notice of candidacy" See 21-2-5(a).
http://law.justia.com/codes/georgia/201 ... -1/21-2-5/

It's the linguistic equivalent of confusing a sentence about "apples" with one about "Jonathan apples and Macintosh apples". If you are holding a Pippin apple in your hand, it is an apple, but it is neither a Jonathan nor a Macintosh.

Loren characterizes this a being "rhetorically nice", as if it were a matter of over-sensitivity to the parsing of words --but ALL statutes have to be read carefully, as it is very common for words to be assigned a specific meaning.

Nice, CB.

But that isn't based on a determination of qualifications to hold office-- that's a matter of the states regulating their own elections, based on the notion that they don't put people on the ballot unless they are satisfied that the person meets a minimum threshold of likelihood of getting a significant number of votes. Georgia makes that determination by requiring third party candidates to get a whole lot of signatures on a petition. That's a matter of how the state chooses to conduct its elections, not one of vetting individual candidates.

1) is where I think the parsing issue came to the forefront. After all, the state executive committee does send a list of candidates for the PPP to the Secretary of State.

Apparently, for other candidates, this does involve a "certification" of some sort, and I have not actually seen an example of such a document, and a check. For the PPP, this consisted of nothing more than a letter. No check, no certification.

I have not yet seen examples of what the executive committee sends to the SoS for different kinds of candidates, but the descriptions I've read do indicate that the process is more formal for other kinds of candidates.

Therefore, I have to conclude at least in the absence of anything to the contrary that you have been correct all along that this is a substantive and not just a technical difference. I still don't think the statutes are very clear, but the actual practices (if they are as they seem to be) seem to indicate how they've been carried out.

'Zactly. Take Virginia, fer instance...

Shoot and release! New frontiers in field sports!

Pity them. First they get hooked; then they get shot.

In the case of those statutes, the state is being permitted to set technical requirements for ballot access - minimum numbers of petition signatures, form of petition, that sort of thing. In those instances, I think the argument is probably that the State has a compelling interest in making sure that elections are conducted efficiently and with a minimal amount of confusion. An 89-page Presidential ballot, for example, might easily throw an entire election into chaos, cause lines to back up for half a mile, and generally make it more difficult for the voters to fulfill their civic duty at all.

Candidates that fail to meet the ballot access requirements are not barred from receiving votes. Their names do not appear pre-printed on the ballot, but they can receive write-in votes, and, presuming those votes meet the technical requirements for write-ins, have those votes counted. This makes it more difficult for the would-be candidate, but not impossible. Voters can bring written material into the voting booth with them to aid them in casting a ballot; there is nothing to keep a write-in campaign from handing out loads of business cards with instructions on how to cast a proper write-in vote for that candidate.

The way I'm reading OCGA 21-2-5(c), that's not the case if the Secretary of State disqualifies a candidate. According to that statute, if a candidate is disqualified after the ballots are printed, "a prominent notice shall be placed at each affected polling place advising voters of the disqualification of the candidate and all votes cast for such candidate shall be void and shall not be counted." (Emphasis added). To me, that suggests that the clear intent of the statute is not to deny unqualified candidates the right to the logistical convenience of having their names pre-printed on the ballot; it's to bar those candidates from receiving any votes at all.

That's fine for cases where Georgia is permitted to set the requirements for someone to serve in a given office. That's not the case with Presidential elections. The requirements are set in Article II, the procedure for the election is set in Article II and the 12th Amendment, and I think a very compelling case can be made that Article II effectively places the responsibility to ensure that an unqualified President is not elected on those who cast votes to elect the President - the members of the Electoral College - and the Congress. To my admittedly uneducated eyes, that reads a lot like a power delegated to the United States by the Constitution.

Although Keyes v Bowen certainly isn't controlling precedent for Georgia courts, I think that ruling makes very persuasive points with regard to the potential dangers of allowing the States to assess the qualifications of candidates for President. I believe there may have been a few non-California courts that have also found that particular case persuasive.

Of course, the entire issue of the ability of an individual state attempting to undertake the responsibilities given to the Electoral College and the Congress may not apply in this case. If Georgia's laws don't actually grant Georgia the right to remove candidates from the ballot, then there's no reason to worry about all of that.