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Keyes v. Bowen

October 25, 2010


APPEAL from a judgment of the Superior Court of Sacramento County, Michael P. Kenny, Judge. Affirmed. (Super.Ct.No. 34200880000096CUWMGDS).

The opinion of the court was delivered by: Scotland, Acting P. J.*fn4


This appeal concerns the sufficiency of a petition for writ of mandate filed by what have come to be known as "Birthers," people who claim President Barak Obama is not a natural born citizen of the United States of America and, hence, is ineligible to be the President.

Plaintiffs Alan Keyes, Wiley S. Drake, Sr., and Markham Robinson appeal from the judgment of dismissal entered after the trial court sustained, without leave to amend, demurrers of defendants President Obama, Vice President Joseph Biden, the 55 California Presidential Electors of 2008 (the Electors), and Secretary of State Debra Bowen. 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. They also argue the court erred in determining that it lacked jurisdiction to resolve certain issues raised in the petition. 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 State Constitution. As we will explain, 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.


Plaintiffs filed a petition for writ of mandate against Secretary of State Bowen, President Obama, Vice President Biden, and the Electors on November 13, 2008,*fn1 and filed an amended petition on February 23, 2009.

In their first amended petition, which is not a model of clarity, plaintiffs observe that the Secretary of State is responsible for certifying candidates for inclusion on the ballot and that, "[h]istorically, California Secretaries of State have exercised their due diligence by reviewing necessary background documents verifying that the candidates that were submitted by the respective political parties as eligible for the ballot were indeed eligible." According to plaintiffs, the voters have an expectation that compliance with the minimum qualifications for office will be confirmed by the officials overseeing the election process. The gravamen of their action is there is a reasonable doubt President Obama is a natural born citizen, as is required to become President of the United States (U.S. Const., art. II, § 1), and the Secretary of State had a ministerial duty to verify that President Obama met the constitutional qualifications for office before certifying him for inclusion on the ballot.

Plaintiffs asserted that "[f]ailure to grant the relief sought, demanding that [the Secretary of State] be ordered to verify the constitutionally required qualifications of OBAMA, and any and all future candidates for President, not only allows, but promotes, an overwhelming degree of disrespect for our Constitution and for our electoral process, and creates such a lack of confidence of voters in the primary and electoral process itself, that it would confirm a common belief that no politician has to obey the laws of this Country, respect our election process, or follow the United States Constitution." (Italics added.)

Plaintiffs also alleged that the Electors had an affirmative duty to discover whether the presidential candidate was a natural born citizen, since they were required to vote for the President "in the manner directed by the Constitution" (3 U.S.C. § 8), and that one of the persons nominated as an elector, "Ilene Huber," died on October 22, 2001, and a woman by the name of "Ilene Haber" was permitted to vote in place of Ms. Huber, without being elected to take her place as required by the Election Code.

Plaintiffs asked the trial court issue a writ of mandate barring the Secretary of State from certifying the names of the Electors and from transmitting to each elector a certificate of election until documentary proof was produced and verified showing that any future presidential candidate is qualified to serve as President of the United States. Plaintiffs also asked the court to bar "future California Electors from signing the Certificate of Vote until such documentary proof is produced and verified showing that any future Presidential candidate is qualified to serve as President of the United States." In addition, plaintiffs sought to bar the Electors from signing the Certificate of Vote unless they complied with the Election Code requirements concerning replacing absent electors.

Secretary of State Bowen demurred on the grounds that (1) the petition failed to state facts sufficient to constitute a cause of action against her because she did not have a ministerial duty to demand detailed proof of citizenship from presidential candidates, (2) the petition was moot given that the election had been held; (3) the controversy was not ripe as to future elections; (4) whether a presidential candidate is qualified for office was a matter committed to Congress and the federal courts; and (5) the alleged substitution of Ilene Haber for the deceased Ilene Huber merely represented a typographical error.

President Obama, Vice President Biden, and the Electors demurred on the grounds that (1) the petition did not allege facts sufficient to state a cause of action as they had no ministerial duty to provide to the Secretary of State, or verify proof of, qualifications to hold office, (2) the petition did not seek any relief against the President or Vice President, (3) the state court lacked jurisdiction over the matter, which was governed by federal law and required objections to presidential qualifications to be lodged with Congress, (4) the petition was moot, and (5) to the extent that the petition sought relief as to future elections, it suffered from a misjoinder of parties because the court could not know who the candidates or electors would be in the future.

The trial court sustained both demurrers, ruling the Secretary of State was required to see that state election laws are enforced, but plaintiffs had not identified a state election law imposing a ministerial duty to demand documentary proof of birthplace from presidential candidates.

The court dispensed with the claim concerning California Elector "Ilene Huber" by taking judicial notice of a document showing that the name had been a typographical error and that "Ilene Haber" was the actual elector, not an improper replacement.

The court sustained the demurrer of the President and Vice President, noting the petition did not seek any relief against them and did not identify any ministerial duty on their part that they failed to perform ...

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