TEFYTS.

The burden of proof in one case was on the defendant because he had filed, by statute, a document attesting to his eligibility, which placed the burden clearly (according to the court) on him. In this case, the president never filed such a document. Not murky at all. Typically the burden of proof lies with the plaintiff/objector. A motion to determine the burden of proof was filed but the judge afaict never ruled on it.

No.

Well in all fairness, the "law" was the subject of much debate here on Fogbow. I agreed with Jablonski's take on it as soon as I read his original motion & the supporting statutes & case authority... but at least one Fogbower was quite upset with me, apparently because I could offer several different arguments leading to the same conclusion . (Said something about pinning jello to a wall; I can think of at least 4 different arguments as to why the challenge doesn't lie -- but some Fogbower's with legal training were quite dismissive of those arguments).

I also think that sometimes officials do things out of pragmatism rather than worrying about legal technicalities. I mean, Kemp made the right decision in the end. He could have figured that it was easier to let the birthers have their hearing than to reject their challenge without a hearing, and then spend time fighting the issue of whether or not he is supposed to have a hearing in court. It's unlikely that Kemp anticipated the whole subpena snafu -- he probably envisioned something more like the New Hampshire electoral board hearing, without the messiness of a decision being rendered while the birthers were still in the room.

I also do think that the fact that Hatfield & Swensson were involved was a huge factor. Hatfield is an elected state representative & Swennson is GOP party chairman in a not-insignificant Georgia county. So these are men with some influence within the Kemp's party.




The Georgia reversal of burden of proof is premised on a reason that that doesn't apply to the challenge of a primary candidate -- for the same reason that a challenge can't be made in the first place. For other offices, the candidate needs to files an affidavit as to their qualifications. The most common issue that comes up in elections are dispute over residency. Someone owns a house in District A & claims a homeowner's tax exemption; then moves into a rental in District B and runs for election there. So the issue becomes a debate over where the person really lives.

So the rationale for the burden-shifting is something like this: In order to run, the candidate filed an affidavit, under penalty of perjury, saying that he lives in District B. So if someone questions it, he ought to be able to prove it -- after all, its pretty hard for a challenger to know where someone actually sleeps at night. In one of the previous cases that Malihi handled, the candidate was a man who was separate from his wife, and even his wife came in to testify that he no longer lived in the home where they shared title - and he had his landlord, utility bills, etc. to show that it really was legit. But how would a challenger have access to that sort of info, without hiring a private investigator to follow the guy around? The whole determination of residency depends largely on subjective intent, and only the person who claims residency can know what is going in his own mind.

It was actually when I read the burden-shifting case that it all became clear to me -- I honestly hadn't paid much attention before that, but I thought that was rather odd. I think that the rationale of the case is somewhat mistaken --the court should have held that the burden shifts to the candidate only after the challenger makes out a prima facie case -- but my point is that I do see the underlying rationale.

I still think the biggest problem in this case was Malihi's failure to quash Orly's subpenaes. He might have done some checking around before granting her pro hac vice status as well. Once it became apparent that he had an out-of-state lawyer abusing the process to suit her own ends, he needed to exercise control over the process. I simply can't think of any reason or excuse for that failure.

I LOLed at that!

Actually, Clayton County is a very insignificant county as far as the Georgia GOP is concerned. Clayton voted 70% for Kerry in 2004 and 83% for Obama in 2008. Not a Republican stronghold, which I think is one reason a whacko like Carl managed to become county chair.

Keep her the hell away from my city.

Well, first, congrats on getting your renewal of this particular dead-horse beating past the moderators. I was not so sure I should go on. Oft as I have advanced the anti-birther position, and been lauded here for doing so, in this particular case I dared disagree with allies.


Yes, as I had given. But back to what was actually the issue there: I had written, "Sadly, people did imply that a judge ruled based on personal animosity." You seemed to disagree, calling what you saw "speculation", so I provided a specific example of someone implying that the judge ruled based on personal animosity.



No, not because of clairvoyance. Because of competence, and that it would be his job.



What a bizarre theory. The ALJ issued the order of our dreams, the most comprehensive judicial debunking of birtherism yet. In Pennsylvania, Lavelle provided it as an exhibit.



"You people"? I've been a Fogbower and birther debunker for years. A couple times I've found some approaches distasteful, so I say so.



So you've no grounds for your attacks on what I write. I never said Jablonski did not have his client's consent. You act lime I'm reasoning by pretension to see behind privilege, but that's what your argument requires, not mine.



I grant that we could scarcely dream of a better result than the ALJ's decision. How one can credit that to Jablonski and hold on to the smears of the Judge is baffling. Malihi could have written a default order without going near the ludicrous birther arguments.



I don't follow your argument there, but I'm glad to see you disavow double-standards.

When Barry Ragsdale was on Reality Check's show, he commented that judges "are uniquely unable to defend themselves". The comment drew positive response. He went on, "and I believe that it is the responsibility of lawyers to defend judges when they are unfairly attacked."
http://www.blogtalkradio.com/rcr/2012/01/18/rc-radio @~ 31:40

Well, in that case, with Carl Swensson at the helm for the county GOP, I'm sure that Obama's margin of victory in 2012 will be even greater. I'm sure his rhetoric will do wonders for the local Obama GOTV drive come November.

I think we've already seen this from someone's website, but just FYI it is now at Jack's.

Cody Judy v Obama - Motion for Reconsideration

Updated Docket Entries. I have no documents to provide.

Awaiting with bated breath.....

No need to hold it, Sue. The result is preordained. The only question is whether Judge Wright will sua sponte issue a sanctions order. My bet is it will simply be brushed aside and denied.

Couldn't we at least have some gratuitous snarking?

And expensive sanctions accompanied by a strongly-worded letter to the CA bar?

Hey, it's totally non-gratuitous snarking. We mock for their own good.

Mebbe I should have used a couple of smilies

Georgia PPP results: Obama won.

Great job, birthers!

Only one county stands out as having problems reporting: Clayton 48% PPR compared to 99-100% PPR for all others.

Maybe the GOP county chair is watching with pitchforks and making them nervous.

Now that's funny.

Hats off to Van Irion, Mark Hatfield, Orly Taitz and the unknown lawyer for the helluva job.

Brownie.

Maybe the birthers can file an emergency ex animo motion to retroactivly keep Obama off the ballot?

I don't think any of us would be shocked if that happened