July 19, 2012
In March of 2011, I wrote a post about lawsuits by “Birthers” – those who maintain that President Barack Obama is ineligible for the office of U.S. President under Article II, section 1 of the U.S. Constitution because he is not a citizen.
Why Obama is not a citizen under this theory is why its proponents are known as “Birthers” – they claim that Obama was not born in the U.S.
As mentioned in last year’s post, there have been numerous lawsuits seeking relief from this alleged constitutional violation.
As remedies, these lawsuits have sought everything from having Obama’s name removed from the presidential ballot, enjoining certification of the 2008 election results, or voiding Obama’s actions and appointments as President.
But, also mentioned in the post, all of them failed – nearly all of them because of a lack of Article III standing on the part of those bringing the suit.
However, just as the release of Obama’s long-form birth certificate didn’t deter their efforts, nor do these defeats in court.
For example, on June 21, 2012, yet another “Birther” lawsuit (one seeking to prevent Obama’s name from appearing on the 2012 ballot) was dismissed for lack of standing.
Nevertheless, this one was somewhat closer to actually achieving the elusive standing than so many lawsuits that have come before it.
The lawsuit was brought by John Dummett and Leonard Volodarsky (two 2012 presidential candidates), Creg Maroney (“a private citizen who is injured in his status as a voter”), and the Liberty Legal Foundation.
The Liberty Legal Foundation is a non-profit organization with a mission to “[s]trategically challenge flawed court precedent to restore the Constitution and individual liberties.”
The plaintiffs can be categorized into different theories of standing based on how I described them above.
Oh, as a quick refresher, a plaintiff can establish standing only by alleging “that as a result of the defendant’s unlawful conduct he has suffered a distinct and palpable injury.”
First up: Maroney with voter/taxpayer standing.
This kind of standing based on a “generalized grievance” is not recognized by the Supreme Court (see 2007’s Hein v. Freedom from Religion Foundation), and, consequently, the court found that Maroney lacked standing.
Next up: Dummett and Volodarsky, who invoked the principle of “competitive standing.”
Competitive standing is the notion that “a candidate or his political party has standing to challenge the inclusion of an allegedly ineligible rival on the ballot, on the theory that doing so hurts the candidate’s or party’s own chances of prevailing in the election” (from Hollander v. McCain, a case challenging John McCain’s eligibility for the presidency due to fact that he was born in the Panama Canal Zone.)
Citing the Ninth Circuit Court of Appeals case, Drake v. Obama (another “Birther” suit), these plaintiffs argued that they had competitive standing based on the fact that they were registered with the Federal Election Commission (FEC) as candidates for President of the United States in the 2012 election.
It’s helpful to know that the plaintiffs in Drake failed the standing test because, although they, too, were candidates for President, the lawsuit was filed after Obama was sworn in.
Thus, they were no longer “candidates” and moreover didn’t express any intention to run again against Obama in the future.
Dummett and Volodarsky, the plaintiffs in this lawsuit, sought to differentiate themselves from the Drake plaintiffs by filing suit before the election.
Even this wasn’t enough, though.
Because the plaintiffs didn’t state that they were the nominees of any political party, nor that either of their names would even appear on the ballot, the court found that neither had pleaded any specific facts showing they have or will suffer an injury-in-fact of any kind.
And, as a result, Dummett and Volodarsky both failed the standing test.
Because the other three plaintiffs didn’t have standing, the Liberty Legal Foundation – which based its theory of standing as derivative of the standing of the three other plaintiffs as members of the organization – also lacked standing.
The ruling is, no doubt, a setback for “Birther” lawsuits.
But can any lessons on standing be gleaned from it?
Indeed: a presidential candidate who was actually going to be on the ballot next to Obama would have standing.
So, for example, if Mitt Romney sued, would he have standing?
According to this ruling, yes.
Should we be expecting such a suit as soon as Romney gets wind of this ruling?
Considering that standing is only one of many (much larger) legal hurdles facing “Birther” suits, I wouldn’t hold my breath.