Thursday, January 27, 2011

At Least 10 States Considering Ballot Access Legislation For Presidential Candidates

In the wake of the controversy during the 2008 presidential election concerning the constitutional eligibility of the two major party candidates for president that has persisted long after Obama's election, at least ten states are now actively considering legislation to require presidential candidates to provide evidence they meet the constitutional eligibility requirements in order to gain access to their state's election ballot. WND summarizes the legislation here. This is the part of the story discussing Indiana's SB 114, which is sponsored by Sen. Mike Delph (R-Carmel):

In Indiana it was Sen. Mike Delph who proposed SB114 to require candidates to provide a certified copy of their birth certificate and include an affirmation they meet the Constitution's requirements for the president.

It calls for the candidates "to certify that the candidate has the qualifications provided in Article 2, Section 1, Clause 5 of the Constitution" and accompany that certification with "a certified copy of the candidate's birth certificate, including any other documentation necessary to establish that the candidate meets the qualifications."

In also provides "that the election division may not certify the name of a nominee for president or vice president of the United States unless the election division has received a nominee's certification and documentation."

On his blog, commentator Gary Welsh observed that state law already requires the elections division to deny ballot access to unqualified candidates:

"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."

He cited the "unprecedented" 2008 election, 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 challenging his eligibility.

"Obama furnished to what was purported to be a certified copy of his birth certificate [the online certification of live birth], 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."

But he said the issue was that neither candidate was "required to furnish any election authority with any document such as a birth certificate ... ."

He said, "After [Sen. John] 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.

"Critics will no doubt poke fun at SB114 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," he said.

On Welsh's blog, a forum participant wrote, "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 battalion of lawyers who vigorously fight every effort to force him to. Why is he so secretive?"


Cato said...

It's a federal election, so look for the feds to tell the states just how far they can go on these measures.

Secretaries of State everywhere are at risk of the Federal Elections Commission taking their jurisdiction if these laws annoy the feds too much.

Gary R. Welsh said...

State ballot access laws have long been upheld by the courts. States have enacted varying laws imposing varying degrees of burden to get on the ballot that have been upheld by the courts. SB 114 does not require any additional qualification that is not already required by the U.S. Constitution.

Cato said...

Gary, as an attorney, you must know that the court's methodology is nothing but whatever is required by present need.

The Feds will quickly grow weary of states asserting supremacy.

Obama may not run, again, but if he does, he's on every ballot, or that state's delegation will be denied its votes in the Electoral College. If the sitting President is denied ballot access in one of these red states, there will be rampant charges of a conservative coup d'etat and a corresponding delegitmizing of the U.S. government.

This country cannot afford to be a third-world mess where the President refuses to abdicate amid charges of rigged elections and a rival armed faction is in the streets seeking to oust the sitting government.

These red states are playing with dynamite.

Gary R. Welsh said...

You presume, Cato, Obama will not be able to produce the requisite evidence to get on these state's ballots or swear under oath he is constitutionally eligible? Do you know something different from what Obama's defenders have been saying all along he was born in Hawaii and a birth certificate documenting his birth there exists. The only reason he would be denied access is if he refused to produce the proof of his eligibility or refused to swear to his eligibility. Why would he do that?

Cato said...

Don't be coy, Gary. You know exactly what the game is these red-staters are playing.

By the way, all but about five of our presidents did not have a birth certificate.

Downtown Indy said...

The presidential election is NOT a federal election. It consists of 50 state elections that selects electors to the electoral college.

The electoral college conducts the 'federal election' that selects the president.

Gary R. Welsh said...

Family Bibles used to be maintained as evidence of a child's birth into the family. Families recorded births in them as a matter of course. That was how it was discovered long after his death that Chester Arthur had lied about the date of his birth.

Gary R. Welsh said...

Also, I don't know where you are getting that five number, Cato. States have had vital records laws to record births for a long time now.

Gary R. Welsh said...

See this information:

The content of the records will vary with the locality and time period. Records may have been recreated when they were damaged or lost.

New England. (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont) These states have kept good vital records. The town clerks kept register books as early as the 1600's (see the “Town Records” pages for details). Most of these states have statewide indexes of the existing records. Most New England states began statewide registration of births, marriages, and deaths between 1841 and 1897. Vermont began centralized registration in 1919, but individual town records go back to the 1700's. Except for New Hampshire (which began recording marriages as early as 1640), many New England marriages in colonial times were not recorded because of the laws and religious customs of the region.

Middle Atlantic (Delaware, New Jersey, New York, Pennsylvania and Maryland). It is unusual to find any vital records before 1885 for New York and Pennsylvania, except in the larger cities. All of the states began statewide registration of births and deaths between 1878 and 1915. Statewide registration of marriages began between 1847 and 1906. New Jersey and Delaware have marriage records dating from the 1660's (or the creation of the counties), but systematic recording of marriages in New Jersey did not begin until 1795.

South. (Alabama, Arkansas, Georgia, Florida, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, South Carolina, Tennessee,Texas, Virginia and West Virginia) In the southern states, laws for civil registration of births and deaths were enacted between 1899 and 1919. Marriages were a legal contract which involved property rights, so the counties recorded them carefully, starting in the early 1700's (except in South Carolina where they began in 1911). Most states initiated statewide marriage files between 1911 and 1962. Virginia counties began recording births, marriages, and deaths in 1853, but stopped between 1896 and 1912. Church vital records often reach back into the 1700's.

Midwest. (Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, Ohio and Wisconsin ) Government officials in the midwestern states began files of births and deaths as early as the 1860's in many counties. Statewide registration of births and deaths was initiated between 1880 and 1920. Officials began recording marriage dates as soon as each county was established and generally began statewide registration between 1880 and 1962.

Great Plains. (Kansas, Nebraska, Oklahoma, North Dakota, and South Dakota)

West. (Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah and Wyoming) The western states vary greatly in their registration of vital records due to their different settlement patterns. Most areas began statewide registration of births and deaths between 1903 and 1920. While most counties were keeping marriage records by 1890 or the date the county was created, statewide registration generally began between 1905 and 1978. Hawaii's records of births, marriages, and deaths start as early as the 1840's.

Cato said...

The red staters are insisting on birth certificates, not bibles or vital records.

Obama has well met the standards you deem sufficient in your 10:58 post.

Obama has a vital record on file with Hawaii, more specific than the records from the states you noted.

By the way, Reagan had no birth certificate.

Gary R. Welsh said...

I've made that point before, Cato. Hawaii officials say they have a recorded record of Obama's birth so the state will issue the COLB needed to get on the Indiana ballot. Reagan's birth was registered whether there was what people descibribe as the long-form certificate or not. When he was born, most babies were born at home and not at hospitals where the long-form certificates were used.

smrstrauss said...

I agree completely with Advance Indiana.

Obama, or in fact anyone with a short form birth certificate, will simply prove it to the states that require it.

Since in Obama's case it is the official birth certificate, and in other states that have adopted short-form birth certificates as their official birth certificate it is too, the state that desires to see the birth certificate will accept the COLB or any other official birth certificate--whether it is long-form or short-form.

artfuggins said...

There is no controvery. A small number of people in this country are just trying to undo the voice of the people in 2008.