Arizona Birther Bill Gets It Wrong, Again

[Adelante]

Birther state Rep. Judy Burges (R-AZ), joined by almost thirty other Arizona House and Senate Republicans, has introduced a more focused version of last year's failed Birther legislation:

The New York Daily News reported yesterday:

This new legislation is extremely specific, seeming to target each of the issues "birthers" have continued to raise regarding President Obama.

Members of the fringe group who believe Obama is not eligible to be commander in chief have argued he was not born in Hawaii, has dual citizenship, or is simply not a "natural born citizen."

Burges' HB 2544 would address each of these concerns by requiring any and all candidates to provide "an original long-form birth certificate that includes the date and place of birth, the names of the hospital and the attending physician and signatures of the witnesses in attendance."

"Birthers" have argued that despite the fact that the Certification of Live Birth the Obama campaign provided in 2008 is a legally recognized document, they want him to release his long-form certificate.

Last year's bill gave the Secretary of State responsibility for determining citizenship status of a presidential candidate:

2010—HB 2441: C. The secretary of state shall review the affidavit and other documents submitted by the national political party committee and, if the secretary of state has reasonable cause to believe that the candidate does not meet the citizenship, age and residency requirements prescribed by law, the secretary of state shall not place that candidate's name on the ballot.

In an improvement, this year's version requires the Secretary of State merely to ensure that certain documents related to Constitutional requirements for a presidential candidate be filed with a sworn affidavit:

2011-HB 2544: C. IF BOTH THE CANDIDATE AND THE NATIONAL POLITICAL PARTY COMMITTEE FOR THAT CANDIDATE FAIL TO SUBMIT AND SWEAR TO THE DOCUMENTS PRESCRIBED IN THIS SECTION, THE SECRETARY OF STATE SHALL NOT PLACE THAT PRESIDENTIAL CANDIDATE'S NAME ON THE BALLOT IN THIS STATE

However, as Sen. John McCain (R-AZ) reminded his fellow Arizonans during last year's campaign:

“I think that Secretary of State Ken Bennett, whose responsibilities these are, is correct and that the parameters for candidates for elected federal office are set by federal law and not by state law,” McCain said Friday at a news conference in downtown Phoenix.

Last October, a judicial panel on the California Court of Appeal, Third Appellate District, issued a Published Opinion in Keyes v. Bowen, affirming in full the lower court's dismissal of the case:

Plaintiffs contend that the trial court erred because, they contend, there is a “triable issue of material fact” concerning whether the Secretary of State has the affirmative duty to verify that candidates seeking elective office are eligible for office. ... In plaintiffs’ view, there is “a triable issue of material fact as to which branch of government, and what office within that branch, has the duty to ensure that all candidates on a California ballot meet the eligibility requirements to hold office.”

Plaintiffs’ contentions lack merit. Among other things, we conclude that the Secretary of State does not have a duty to investigate and determine whether a presidential candidate meets eligibility requirements of the United States Constitution. …

In any event, the truly absurd result would be to require each state’s election official to investigate and determine whether the proffered candidate met eligibility criteria of the United States Constitution, giving each the power to override a party’s selection of a presidential candidate. The presidential nominating process is not subject to each of the 50 states’ election officials independently deciding whether a presidential nominee is qualified, as this could lead to chaotic results. Were the courts of 50 states at liberty to issue injunctions restricting certification of duly-elected presidential electors, the result could be conflicting rulings and delayed transition of power in derogation of statutory and constitutional deadlines. Any investigation of eligibility is best left to each party, which presumably will conduct the appropriate background check or risk that its nominee’s election will be derailed by an objection in Congress, which is authorized to entertain and resolve the validity of objections following the submission of the electoral votes. (3 U.S.C. § 15.)3

The small problem that elections for federal office are governed by federal law is not the only problem with this Birther legislation attempt.

From the new Arizona bill:

2011-HB 2544: 1. AN ORIGINAL LONG FORM BIRTH CERTIFICATE THAT INCLUDES THE DATE AND PLACE OF BIRTH, THE NAMES OF THE HOSPITAL AND THE ATTENDING PHYSICIAN AND SIGNATURES OF THE WITNESSES IN ATTENDANCE.

What about home births or deliveries by midwives in birthing centers? How do the hospital and doctor's names or witnesses, if there are those signatures, apply to this Constitutional requirement?

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

It's not a hard question and the answer is they don't apply, and a state government can't all of a sudden decide the United States Constitution is asking for something it's not. All any state contemplating presidential ballot eligibility can reasonably expect of a birth certificate is that it give date and place of birth to meet the age requirement and the natural born citizen requirement, whether the state's laws reflect that limitation or not.

The legal authority for certification of anyone’s birthplace is the state in which the birth occurred. The legal documentation of that birth is the certification the state provides as prima facie proof. A state government is compelled to release its vital records only by court order, not by order of another state government which doesn't like the official format of a state's legal documents.

If a secretary of another state decides that state's certification is not sufficient to prove national born citizenship, it opens their own state’s legal procedures to challenge by any other state, induces a chaotic approach in state-to-state interaction and violates the federal law of Full Faith and Credit.

The State of Hawaii does not issue long form birth certificates. It issues certifications of Hawaiian birth as birth certificates. Interestingly, the State of Arizona no longer issues long form birth certificates, either, for people born there before 1990. Beginning in fourteen years, a citizen of Arizona would be unable to prove natural born citizenship, if this Birther bill became law. Arizona issues as prima facie proof of citizenship its own short form certified birth certificate.

BIRTH SHORT
A certified birth certificate that can typically be used for travel, passport, proof of citizenship, social security, driver's license, school registration, personal identification and other legal purposes. The Birth Certificate - Short is available for events that occurred within the State of Arizona from 1990 to present. ...

BIRTH LONG
A certified birth certificate that can typically be used for travel, passport, proof of citizenship, social security, driver's license, school registration, personal identification and other legal purposes. The Birth Certificate - Long is available for events that occurred within the State of Arizona from 1903 to 1989.

A future candidate for President running from Arizona, who was born after 1989, would be placed on Hawaii's ballot based on the short form document, if required and submitted, produced from the electronic record of Arizona health statistics, since Arizona no longer issues long form birth certificates; but also because Hawaii would have no choice in the matter under Full Faith and Credit, which makes action by state officials ministerial, meaning without exercise of individual judgment, but according to statute.

The state in which the birth took place gets to decide in what form they issue vital information for legal purposes. Again, another state would have to accept Arizona's short form birth certificate, under Full Faith and Credit, just as Arizona has to accept Hawaii's short form birth certificate.

This would apply to Arizonan candidates born before 1990, as well, if submitting a short, rather than long form of birth certificate, where a state law requires a birth certificate for ballot inclusion. But if this bill becomes law, Arizona could not accept one of its own state-issued birth records.

Here is another questionable part of HB 2544:

2011-HB 2544: 3. A SWORN STATEMENT OR FORM THAT IDENTIFIES THE CANDIDATE'S PLACES OF RESIDENCE IN THE UNITED STATES FOR THE PRECEDING FOURTEEN YEARS.

While Article II, Section 1 of the Constitution states an eligible President must have "been fourteen Years a Resident within the United States," it is silent on whether the fourteen years be consecutive years. In fact, Republican President Herbert Hoover (1929-1933), a well-traveled individual, who had earlier lived in China and Australia, was not residing in the United States for all of the fourteen years immediately prior to his presidency, living in London until 1917, when he was called into government service by President Woodrow Wilson, after the US entered WWI. President Dwight D. Eisenhower was out of the country conducting a war. Presidents John Quincy Adams and Thomas Jefferson were Ambassadors to other countries during the fourteen years preceding their presidential terms.

A Fogbow member, cbreitel, who happens to be a lawyer in Arizona, says about it, using Eisenhower as the example:

From a purely legal angle, I will say that none of these details actually matter, primarily because of the political question doctrine. That doctrine holds that some issues of constitutional interpretation are just so intertwined with the political process of our nation that it would be improper for courts to interfere. In addition, the common law definition of "resident" needs to be addressed here. I think the argument is pretty strong that the Constitution's intent in using that term was not to exclude every person who happened to be abroad while actually and directly in the service of the United States government, like Eisenhower, and like all of our military troops. The question is where his principal family residence was during the time he was commanding forces in Europe, and where he intended to live once his service was complete. This is how "residence" is defined under the law of most states in the US in various other contexts. The answer to both of those questions is obviously somewhere in the United States.

Herbert Hoover, however, was not in government service in his life abroad, but engaging in private industry and humanitarian causes twelve years before his presidency. He still became President without a challenge to his eligibility. With this precedent, the interpretation of the clause is not established, as the Arizona legislature would have it, that the fourteen year residency requirement in the Constitution is meant to be consecutive.

But under the Arizona bill, even somebody like General David Petraeus would be ineligible for the ballot, having not been a resident of the United States for the preceding fourteen years. It would take a court ruling against Arizona (and any other states that pass similar laws) to sort it out, or an amendment to the law, none of which would be conducive to orderly elections. As the California case mentioned above illustrates, the courts like federal elections to be orderly, and as other Birther cases have shown, the political question doctrine prevails.

Like last year's Birther bill, this one is lawsuit city for Arizona taxpayers.

Saving the best for last, though, I'd say this one takes the cake for all-around legislative idiocy:

2011-HB 2544: 2. A SWORN STATEMENT ATTESTING THAT THE CANDIDATE HAS NOT HELD DUAL OR MULTIPLE CITIZENSHIP AND THAT THE CANDIDATE'S ALLEGIANCE IS SOLELY TO THE UNITED STATES OF AMERICA.

The first half of that requirement would ensure we almost never have a natural born citizen presidential candidate on the Arizona ballot. Americans have or have had all sorts of dual citizenship in the course of their lives, whether they know it or not, depending on age and timing in relation to the vagaries of citizenship law based on ancestry in other countries. This would mean no Americans of Irish descent, no French-Americans, no Italian-Americans, no Jewish-Americans, no Native-Americans, no Polish-Americans, and so forth, could be placed on a presidential ballot in Arizona. No Rudolph Giuliani, certainly. No Sarah Palin or Michele Bachmann, alas and alack.

Arizona Republicans seem willing to make the sacrifice. They will compromise law and order, ignore common sense, defy the United States Constitution, and screw up the entire federal elections system, if it just keeps that usurpin' mofo of Kenyan descent in the White House from being reelected.

Aside from that, more generally speaking, a birth certificate, anybody's birth certificate, is no assurance of citizenship, because a person, even a natural born citizen, who renounces US citizenship does not have a note of it, years or decades down the road when he or she runs for President, on his or her birth certificate. This information might be gotten if the state law accepted a passport, say, rather than a birth certificate. But that wouldn't satisfy the intense, illogical Birther urges for the current President's birth certificate.

And what happens if a President dies in office, is replaced by the Vice-President, who Arizonans belatedly notice was on their ballot without meeting Arizona law--because these ignoramuses never put the Vice-President, who has to meet the exact Constitutional requirements as the President, in this POS bill? Even worse, Birthers all over the country take notice and go on one of their flying-monkey flights of fancy in order to get another usurpin' mofo out of the White House, and start suing the shit out of the State of Arizona.

Better watch out, Birfers. We might have a plan for 2012:

Joseph Biden will be nominated as the Dems' Presidential candidate and Barack Obama selected as his Vice Presidential running mate. Biden produces his lily-white credentials to Arizona and is placed on the ballot. After he becomes President, Biden resigns. Obama moves up into the Presidency and nominates Biden to be confirmed as his Vice President.

Done.

I don't like to pick on Arizonans, who really have it tough lately, but please, people, think six times before voting these incompetent whackos into office. They can only bring you pain, cost you money and make you look bad.

I don't worry about the US Congress so much, where they are outnumbered by sane people, but the State Houses have a scary plenitude of Birther nuts.

As a comparison with a state bill that avoids the mess of problems the Arizona legislature is just asking for, consider Oklahoma SB 91:

SECTION 1. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 5-111.2 of Title 26, unless there is created a duplication in numbering, reads as follows:

A. Each candidate required to file a Declaration of Candidacy for any federal, state, county, municipal or judicial office, or for the nomination of a recognized political party, in any general, primary, or special election shall, no later than twenty-four (24) hours after filing the Declaration of Candidacy, provide proof of identity and United States citizenship to the election board at which the Declaration was filed.

B. For purposes of this section, a candidate shall present to the election board a current state or federal government-issued photo identification to provide proof of identity, and shall also present one of the following documents to provide proof of United States citizenship:

1. An original birth document issued by a state, the Commonwealth of Puerto Rico, or the District of Columbia, or a certified copy thereof;

2. An original birth certificate issued by the federal government, or a certified copy thereof;

3. An original United States Certificate of Birth Abroad;

4. An original Report of Birth Abroad of a Citizen of the United States;

5. An original Certificate of Citizenship (Form N-560 or N-561); or

6. For an elective office other than President and Vice President of the United States, an original Certificate of Naturalization (Form N-550, N-570, or N-578) or a valid United States passport.

C. Copies of these documents shall be made by the election board and kept available for public inspection pursuant to the Oklahoma Open Records Act.

SECTION 2. This act shall become effective November 1, 2011.

There is nothing wrong with a state wanting proof of citizenship for candidates on their ballots. But sensible, reality-based legislative product -- as opposed to frivolous, politically-motivated nonsense bills drawn up by conspiracy-minded Birther politicians -- goes a long way in actually achieving the goal.

Cross-posted from Oh, For Goodness Sake