Monday, December 20, 2010

Delph Legislation Addresses Ballot Eligibility For Presidential Candidates

Sen. Mike Delph has introduced SB 114, which addresses a big hole in Indiana election law discovered during the 2008 presidential election. Current Indiana clearly requires the Indiana Election Division to deny ballot access to any presidential candidate who fails to meet the constitutional eligibility requirements for holding that office; however, it makes no provision for requiring candidates to furnish any evidence with their declaration of candidacy to indicate whether they are eligible to hold the office. Article II, Section 1 of the U.S. Constitution requires a person to be a natural born citizen, at least 35 years of age and have resided within the United States for at least 14 years in order to be eligible to be president. Under Delph's legislation, no major party candidate will be eligible for the Indiana presidential primary unless they file a declaration of candidacy attesting that he or she meets the constitutional eligibility requirements and furnish the state election's division with a certified copy of the candidate's birth certificate and any other evidence the Commission may require to establish the candidate satisfies the constitutional eligibility requirements.

The 2008 election presented an unprecedented situation where the candidates nominated by both major parties for president had questions raised by citizens about their eligibility, which resulted in dozens of lawsuits being filed across the country. Sen. John McCain's birth in Panama where his father was serving his country in the Navy led to lawsuits being filed against his candidacy, while questions about the birthplace of Barack Obama, resulted in even more lawsuits being filed challengin his eligibility. All of the lawsuits were brought by citizens or members of the military, and all were dismissed for lack of standing without deciding the cases on the merits. Sen. McCain sought to reassure voters by having his colleagues in the Senate pass a non-binding resolution finding that the term "natural born citizen" extended to the children of U.S. citizens born abroad while in service to their country. Obama furnished to  what was purported to be a certified copy of his birth certificate, although questions lingered about his natural born status because his father was not a U.S. citizen and persistent Internet rumors that he was actually born in Kenya and not Hawaii as he claimed.

Neither McCain nor Obama were required to furnish any election authority with any document such as a birth certificate to establish their eligibility to gain access to a ballot. After McCain was nominated at the Republican National Convention, Republican officials filed with the Elections Division a Certificate of Nomination that attested both he and his Vice Presidential candidate, Sarah Palin, met the eligibility requirements set out in the U.S. Constitution. The certificate of nomination filed by Democratic Party officials for Obama and his running mate, Joe Biden, contained no similar attestation. Sen. Delph's legislation will require the certificate of nominations for the major party and third party candidates to include an attestation of eligibility, as well as a certified copy of their birth certificate or such other documentation as may be required by the Elections Division. Candidates who previously filed the documentation for the primary election will not be required to resubmit the evidence of their eligibility.

By way of disclosure, I suggested this legislation to Sen. Delph, who graciously agreed to sponsor it. It should be made clear SB 114 does not define the term "natural born citizen", a term that appears only once in the U.S. Constitution in the presidential eligibility clause. The U.S. Supreme Court has never directly addressed the meaning of the term. Some argue it includes all persons born on U.S. soil, while others contend it includes only children born to U.S. citizens. In the case of McCain, many legal scholars believe it includes children born abroad to U.S. citizens in service to their country. SB 114 will provide evidence with the candidate's filing to at least satisfy the age of the candidate, his or her place of birth and the identity of his or her parents. From that basic information, the Elections Commission at least has evidence with a candidate's filing for determining their eligibility in the event it is contested, or for determining whether more information is needed from the candidate to establish their eligibility.

Critics will no doubt poke fun at SB 114 and label Delph and those who support it as "birthers." To them I say it is no more absurd than the documentary proof required under state law for persons seeking a driver's license, or requiring all registered voters to present a valid picture ID in order to cast a vote in person at an election. And it certainly is no more burdensome than evidence required of ordinary citizens in any number of transactions. As an immigration lawyer, my clients who wish to sponsor family members for an immigrant benefit are required to produce a certified copy of their birth certificates in order to prove their eligibility to sponsor them for an immigration benefit. Surely we can require such basic proof from any person who would seek to hold the most powerful elected office in this country. If Indiana and other states had this requirement in 2008, the doubts about the candidate's eligibility could have been dispelled in large part. The persistent rumors and doubts about Obama's eligibility has further undermined public confidence in his presidency following his election, and he has made no effort to assuage doubters by opening up his Hawaii birth records. State laws generally prohibit persons from gaining access to another person's birth record. News reports indicate legislators in at least four other states, including Arizona, Georgia, Pennsylvania and Texas plan to introduce legislation similar to SB 114 in their state legislatures during their upcoming legislative sessions.


Concerned Taxpayer said...

All I can say is he is the only president in my memory who has not only REFUSED to present medical records, tax records, birth records, college records, etc., but he has hired a batallion of lawyers who vigorously fight every effort to force him to.
Why is he so secretive?

M Theory said...

As Paris Hilton would say: "Loves it!"

smrstrauss said...

I'll bet that the draft legislation simply asks for the official birth certificate, which is the one that Obama has already shown, and not the original birth certificate, which is the one that Hawaii does not send out anymore.

Obama has shown his official birth certificate, and for Concerned Taxpayer, he also showed his tax forms. He did not show his medical records, only a statement from his doctor that he was in great shape, and he did not show his college records. NO president has ever shown detailed college records, though a few candidates showed their grade point averages. In the last presidential election, neither McCain nor Obama showed their grade point averages. In other words, Obama is as secretive as other presidents were. BUT, if in the next election, the Republican candidate shows detailed college records, then Obama probably would too.

Gary R. Welsh said...

Detailed college records were released on several recent presidential candidates. See
The legislation requires a certified copy of the birth certificate. Obama never produced the original birth certificate; what displayed was a certified copy of the birth record obtained in 2007.

smrstrauss said...

Re: "a certified copy of the birth certificate."

Precisely, the Certification of Live Birth IS the official birth certificate of Hawaii, used by thousands of people every year. It is the only birth certificate that Hawaii has issued since 2001, and Hawaii does not send out the original anymore--not even to people who were born before 2001.

The Wall Street Journal put it this way: "Further, if Congress were to pass the so-called birther bill, Obama would be able to comply easily. The bill would require presidential campaigns to submit “a copy of the candidate’s birth certificate” to the Federal Election Commission. The certificate Obama has released publicly would meet this requirement.”

Your WND reference says that the media probed other candidates. I said that no president had ever RELEASED detailed college records. The media probes where it can find out things. In this case, it couldn't. Obama's transcript and grades are still kept private by Occidental, Columbia and Harvard, and they do not have to give out the grades, nor does Obama have to show them. But, if in the next election a Republican shows her or his grades voluntarily, then Obama is highly likely to show his grades voluntarily too.

Gary R. Welsh said...

You are correct, strauss, Obama should have no problem with complying with this proposed law. What is does, though, is have that certified record filed with the election authority and require the candidate to attest he meets the age, NBC and residency requirement. If someone claims the candidate is not eligible, the evidence filed with the candidate's filing can be produced to the public to disspell what doubts people may have. There will always be those cases where there are doubters, but at least there is evidence to support the candidate's contention in the official filing record for people to evaluate.

smrstrauss said...

Re: "Obama should have no problem with complying with this proposed law."

Glad to hear it.

Now a tougher question. Would a person who was born in New Orleans and whose birth records were destroyed in Katrina be able to prove that she or he was born in the USA? If not, the bill is not likely to pass, so you better deal with tough situations like that. Also, adopted children often have difficulty in getting their birth certificates, does the bill deal with that situation?

Gary R. Welsh said...

In case you haven't noticed, strauss, the government has gotten pretty sofisticated at storing vital records. Not a problem. We've had two presidents in modern times who were adopted. Gerald Ford was born Leslie Lynch King, Jr. His parents were divorced and he was adopted by his step father and renamed. Bill Clinton was born William Jefferson Blythe, III. His parents were divorced and he was adopted by his step-father and took the name of his adopted father. Typically, when a child is adopted, the birth certificate is updated to reflect the child's same year of birth, adopted name and adopted parents. A child has to have a birth certificate to exist in today's society as a practicality.

dcrutch said...

Neil Boortz is a conservative talk show host with whom everyone can probably find something to disagree. For instance, he recently favored the DREAM act (IF there were modifications to the legislation to keep it very narrow and focused). He's also on a tear claiming that teacher unions represent the greatest current threat to America- bigger than terrorism. This is based in-part on their influence upon elections, the real or imagined ideological influence upon our children by their clients, the teachers, etc., etc.

While some might agree with Boortz, I would ask what has a greater effect on America than our current practice of journalism? If we depend on even-handed reporting to keep us appraised of both sides, to protect us and help keep us free, what do you think the reaction would have been had Senator McCain refused to share his birth, educational, tax, and health records? Would even hell hath a greater fury from a scorned woman? I don't think so.

Do you think this is the only issue that our mainstream media and press cover in this fashion? Why would we want to exacerbate this problem with taxpayer dollars supporting the tilted coverage of NPR or NBC(GE) through grants or bail-outs, respectively?

The truth of our President's past is only the tip of a bigger informational cabal. Or, is it? Without vigorous attempts to gather information from both sides, we don't know- do we?

smrstrauss said...

Re: "A child has to have a birth certificate to exist in today's society as a practicality."

I agree with you. However, are you saying that the updated birth certificate is sufficient? If so, great.

Getting back to Katrina, are you saying that it is impossible for the government to lose records and hence there does not have to be a provision in the bill to take this into account? If not, why not? If so, what should the amendment be?

Ellen said...

Let's see: we're up to our eyeballs in unemployment, government debt, police mutiny and political corruption in Indy, and two un-winnable wars, and you're still harping on "validity" of Barack Obama's birth certificate?


Gary R. Welsh said...

I scarcely believe we will ever see a serious presidential candidate who lacks a birth certificate, but the legislation contemplates the possibility by allowing a person to furnish such other information as the Elections Divisions may deem necessary to determine one's eligibility. We heard the same pathetic stories during the Voter ID law, which claimed some people were incapable of getting an ID because they had no birth certificate. The U.S. Supreme Court and the Indiana Supreme Court rejected those arguments as specious.

Gary R. Welsh said...

Could someone explain to me why Todd Rokita insisted I have a voter ID to cast a vote, and why Daniels' BMV required me to furnish my birth certificate in order to renew my driver's license, but it's crazy to ask a presidential candidate to establish his eligibility to hold the most important office in the country by showing his birth certificate? Am I missing something here? I'm also wondering if Mayor Greg Ballard approves of the person he is paying to run his re-election campaign calling Sen. Delph "crazy" for introducing this legislation?

smrstrauss said...

Re: "it's crazy to ask a presidential candidate to establish his eligibility to hold the most important office in the country by showing his birth certificate? "

I support legislation that would do that, but it should be federal legislation. Different states cannot have different rules for what presidents must show, and it must include provisions for persons whose birth certificates may have been lost in fires or floods, and for adopted persons who may have difficulty in showing anything but an amended birth certificate.

Foundlings (remember foundlings? There are probably still a few.) would have to be presumed to have been born in the USA--assuming that they were found in the USA, I mean.

I do NOT support the two-fer notion that to prove Natural Born Citizenship a person has to show that his parents were US citizens at the time of birth. Fortunately, no state or federal legislation has been proposed that desires this end.

JPZingher said...

I suggest that you expand SB291 to include all educational, medical and government records of any kidn including, military, criminal and government employment. The birth certificate alone is not enough.