Press Release: Obama & DNC admit all allegations in Berg v. Obama

Defendant Federal Election Commission (“FEC” or “Commission”) moves to
dismiss the Complaint in this matter pursuant to Federal Rule of Civil Procedure 12(b)(1)
for lack of subject matter jurisdiction.  Plaintiff’s Complaint does not present an Article
III case or controversy because plaintiff lacks standing to raise the issue of a candidate’s
constitutional eligibility.  Moreover, even if Berg had standing to raise the constitutional
eligibility issue, the Commission should be dismissed as a party to this case because it
has no oversight over the Constitution’s Presidential Qualifications Clause.

DEFENDANT DEMOCRATIC NATIONAL COMMITTEE'S
AND DEFENDANT SENATOR BARACK OBAMA'S
MOTION TO DISMISS

Pursuant to Fed. R. Civ. P. 12(b)(1) and 1(b)(6) defendants Democratic National Committee and Senator Barack Obama respectfully move the Court for an order dismissing the Complaint on the ground that this Court lacks subject-matter jurisdiction over the claim asserted and that the Complaint fails to state a claim upon which relief can be granted..

US presidential candidates born outside the US

"The constitutional wording has left doubts about whether those born on foreign soil are on an equal footing with those whose birth occurred inside the country's borders, and whether they have the same rights."[2] Though every president and vice president to date (as of 2008) has either been a citizen at the adoption of the Constitution, or else born in a U.S. state or Washington D.C.,[3] a number of presidential candidates have been born elsewhere.[4]

Barry Goldwater, who ran as the Republican party nominee in 1964, was born in Arizona while it was still a U.S. territory. Although Arizona was not a state, it was a fully organized and incorporated territory of the United States.[5]

George Romney, who ran for the Republican party nomination in 1968, was born in Mexico to U.S. parents. Romney’s grandfather emigrated to Mexico in 1886 with his three wives and children after Utah outlawed polygamy. Romney's parents retained their U.S. citizenship and returned to the United States in 1912. Romney was 32 years old when he arrived in Michigan.

Lowell Weicker, the former Connecticut Senator, Representative, and Governor, entered the race for the Republican party nomination of 1980 but dropped out before voting in the primaries began. He was born in Paris, France and acquired his citizenship at birth through his parents. His father was an executive for E. R. Squibb & Sons and his mother was the Indian-born daughter of a British general.[6]

John McCain, who ran for the Republican party nomination in 2000 and is the Republican nominee in 2008, was born at the Coco Solo U.S. military base in the Panama Canal Zone to U.S. parents. Although the Panama Canal Zone was not considered to be part of the United States,[7] federal law states: "Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States."[8] The law that conferred this status took effect on August 4, 1937, one year after John McCain was born — albeit with retroactive effect, resulting in McCain being declared a U.S. citizen.[9]

The mere fact of Constitutional ineligibility has not deterred some minor parties from nominating candidates for President who could not possibly serve in the office. For example, although some states have blocked ballot access for such candidates, the Socialist Workers Party nonetheless successfully placed its candidate, Róger Calero, on the ballot in Mississippi in 2004. [10]

Article published Jul 25, 2008
Judge tosses suit against McCain over citizenship
By KEVIN LANDRIGAN Staff Writer
CONCORD – A federal judge dismissed Thursday a Nashua man's legal challenge that Republican presidential nominee-to-be Sen. John McCain, R-Ariz., was ineligible because he was born in the Panama Canal Zone.

After a one-hour hearing, U.S. District Court Judge Joseph LaPlante ruled Fred Hollander, of 56 Dorchester Way, lacked legal standing to bring the complaint.

Hollander had maintained that as a Republican supporting another unidentified candidate, McCain's victory in the New Hampshire primary and in contests following that point disenfranchised Hollander's vote.

"There may be people who can make this argument but Mr. Hollander, I don't think you can do so," LaPlante said in his ruling from the bench.

The judge said he planned to have a decision in writing available to the public today.

Hollander, a computer programmer, said he needs time to decide whether to appeal this case to the 1st Circuit Court of Appeals in Boston.

"It was a lot of effort to get it to this point,'' said Hollander, who first lodged the suit last March.

Charles Douglas, one of McCain's lawyers, said he was pleased LaPlante made the decision so quickly since the Arizona senator is to formally accept the nomination at the Republican National Convention on Sept. 1.

Taylor Griffin, a spokesman for the Republican National Committee, said it came as no surprise.

"We were very confident because the issue had been raised during Senator McCain's 2000 presidential campaign," Griffin said.

LaPlante noted the federal court where he sits ruled in 2000 that supporters of independent presidential candidate Ralph Nader did not have standing to challenge Nader's exclusion from presidential debates.

He cited other federal rulings denying voters the right to sue.

The core of Hollander's suit was Article II, Section 1, of the Constitution of the United States, which states that "No person except a natural born Citizen . . . shall be eligible to the Office of President."

That provision is what prevents naturalized citizens from being eligible to become president.

McCain was born Aug. 29, 1936, at the Coco Solo Naval Air Station, a U.S. military base in the Panama Canal Zone. His parents both were U.S. citizens; his father was a Naval officer.

The Panama Canal Zone was not U.S. territory, however, and Hollander had tried to argue that McCain was therefore technically a naturalized citizen and "unequivocally ineligible" to serve as president.

LaPlante relied upon a landmark 1974 Supreme Court ruling saying to bring suit in federal court a citizen has to be an injured party, be able to challenge conduct that caused the injury and can through a suit get that injury remedied.

"I don't think it follows logically or factually from the facts that Senator McCain was on the ballot and eventually got the nomination of the Republican Party that your vote was somehow undermined," LaPlante said to Hollander.

Matthew McGill, a lawyer representing McCain and the Republican National Committee, had also argued courts should not get involved at all.

"This would be the first case in the history of the nation to declare a candidate ineligible for office," McGill said.

"That has major implications for the separation of powers, if the judges can pick and choose who will hold the offices of the branch that picks the members of the judiciary."

McGill claimed the suit was also not timely.

"If John McCain loses the election, this issue never gets to be decided," McGill said.

After dismissing the case, LaPlante praised Hollander for pressing this matter without a lawyer.

"I want to commend you. I really admire your commitment to the Constitution," LaPlante said.

"You have been amazingly resourceful, your pleadings have made good arguments, and you managed to get a birth certificate of John McCain which I had never seen before.

"I know that's cold comfort for you now."

For his part, Hollander remains a partisan Republican.

During a brief an interview, Hollander said LaPlante's decision would not stop a losing candidate after November to challenge McCain prior to his inauguration as President.

"Then the Democrats could argue it should go to the next place candidacy who would be Barack Obama," Hollander said.

"That would be our worst nightmare."

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