Free Motion to Shorten Time - District Court of California - California

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 1 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Gregory S. Walston, State Bar No. 196776 Orestes Alexander Cross, State Bar No. 250471 WALSTON CROSS 222 Columbus Avenue, Suite 420 San Francisco, California 94133 Telephone: (415) 956-9200 Facsimile: (415) 956-9205 Email: [email protected] ATTORNEYS FOR PLAINTIFF MARKHAM ROBINSON UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Case No. 08-CV-3836 JL MARKHAM ROBINSON, Plaintiff v. SECRETARY OF STATE DEBRA BOWEN, et al. Defendants. PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT L-R 6-3

INTRODUCTION Under Fed. R. Civ. P. 56(a), plaintiff cannot file a motion for summary judgment until 20 days after commencement of the action. Under L-R 7-2, plaintiff must calendar the hearing on his prospective motion for summary judgment at least 35 days after it is filed. Plaintiff asks the Court to shorten time to file and hear the motion under Local Rule 6-3, the Court's inherent power to control its calendar, and the power to control time to hear motions under Fed. R. Civ. P. 6(d) for the reasons set forth below. For the Court's convenience, a copy of plaintiff's prospective motion for summary judgment is attached as Exhibit 1; the declaration in support is Exhibit 2. This is an action by an Electoral College member and the chairman-elect of the American Independent Party, challenging Senator John McCain's eligibility to run for, and serve as, President of the United States. Specifically, this action points out that Senator McCain is ineligible to run for, and serve as, President of the United States under Article II's "natural born"
-1Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 2 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

citizen requirement because McCain was born in Panama. Accord, Gabriel J. Chin, Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship, Arizona Legal Studied Discussion Paper No. 08-14 (attached to plaintiff's motion for summary judgment as Exhibit A.) As set forth in plaintiff's motion for summary judgment, this issue is properly resolved forthwith in order to avoid the chaos of resolving them after the election, and afford the nonprevailing party meaningful appellate options with regard to this compelling issue. Significantly, this issue is a pure question of law that can be resolved without discovery, and defendants have already briefed it in conjunction with a case that presented the same issue. See, Hollander v. McCain, 2008 DNH 129; 2008 U.S. Dist. LEXIS 56729 (D. N.H. 2008).1 It is now August 12, 2008. The general election occurs on November 4, 2008. Plaintiff respectfully urges the Court to shorten time on this motion so that it is heard on Thursday, September 18, 2008 on this Court's civil law and motion calendar. ARGUMENT I. THE COURT SHOULD SHORTEN TIME. The Court has authority to shorten time for good cause under Local Rule 6-3, the Court's inherent power to control its calendar, and the power to control time to hear motions under Fed. R. Civ. P. 6(d). Good cause exists to shorten time on plaintiff's motion for summary judgment. There is increasing secondary authority raising serious questions concerning Senator McCain's eligibility. See, e.g., Gabriel J. Chin, Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship, Arizona Legal Studied Discussion Paper No. 08-14; Opinion of Lawrence Tribe and Theodore Olson re: Senator McCain's Eligibility to be President, dated
1

26 27 28

In Hollander, a "taxpayer" plaintiff was dismissed for lack of standing. Nonetheless the substantive issues were briefed by defendants. Further, unlike Hollander, plaintiff in this case has standing. As both an elector and chairperson-elect of a rival Party on the same ballot, plaintiff has "a personal stake in the outcome of the election" sufficient to establish his standing to challenge the election. Miyazawa v. City of Cincinnati, 45 F.3d 126, 128 (6th Cir. 1995); see also, Erum v. Cayetano, 881 F.2d 689, 691 (9th Cir. 1989).
-2Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 3 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

March 19, 2008 (attached to Chin article as Appendix A); Adam Liptak, A Hint of New Life to the McCain Birth Issue, N.Y. Times, July 11, 2008 (online at http://www.nytimes.com/2008/07/11 /us/politics/11mccain.html). Yet with less than three months before the general election, Senator McCain is the Republican Party's presumptive nominee. Although at least two other cases have challenged Senator McCain's candidacy, they have each been dismissed for lack of standing because the plaintiffs in those cases were mere taxpayers. Hollander v. McCain, 2008 DNH 129; 2008 U.S. Dist. LEXIS 56729 (D. N.H. 2008). This case, by contrast, is brought by a member of the presidential electoral college of a competing political party that will be on the same presidential ballot as John McCain and the Republicans, which is sufficient to establish standing. Erum v. Cayetano, 881 F.2d 689 (9th Cir. 1989); Miyazawa v. City of Cincinnati, 45 F.3d 126, 128 (6th Cir. 1995) (plaintiff has standing to challenge election when he has "a personal stake in the outcome of the election"). Indeed, it is for this reason that plaintiff could not have brought this action sooner. Until recently, plaintiff had not been elected a presidential elector by the American Independent Party presidential elector. In short, this case will likely be the one to resolve the monumental issue of Senator McCain's eligibility. This issue has already divided the opinions of former solicitors general and esteemed law professors, and will have a potentially nationwide impact. Yet every day that passes makes judicial resolution of the issue of Senator McCain's candidacy more difficult. At the outset, if Senator McCain wins the presidency, resolving the issue of his eligibility after the election will simply inflict havoc on our system of democratic government: will McCain's running mate assume the presidency or the candidate with the second-most electoral votes? It is simply irresponsible to put off resolution of these issues until after the election. Further, the longer resolution of this issue is delayed, the more cumbersome it will be. If these issues are resolved shortly before the election, the state will have to reprint ballots, the Republicans will have to nominate a new candidate, and public attitudes towards the legal and political processes will be strained. In short, there is simply no sense delaying this action beyond

-3Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 4 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

the very minimal amount of time necessary for it to be briefed by the parties and addressed by the Court. Significantly, it is worth noting that the Republicans have already briefed this issue in Hollander v. McCain, 2008 DNH 129; 2008 U.S. Dist. LEXIS 56729 (D. N.H. 2008). They have obtained a joint opinion by Lawrence Tribe and Theodore Olson defending McCain's qualifications, which has been discussed by New York Times articles. See, e.g., Adam Liptak, A Hint of New Life to the McCain Birth Issue, N.Y. Times, July 11, 2008 (online at http://www.nytimes.com/2008/07/11/us/politics/11mccain.html). Shortening time on this matter will therefore not prejudice defendants. Plaintiff therefore respectfully requests an order shortening time. CONCLUSION Because there is good cause to shorten time on this matter and because it will not prejudice defendants, plaintiff asks the Court to shorten time on plaintiff's motion for summary judgment and summary adjudication. Plaintiff proposes the following schedule: Plaintiff's Motion for Summary Judgment filed forthwith; Defendants' Opposition due September 12, 2008; Plaintiff's Reply due September 15, 2008; Motion argued September 18, 2008, 8:00 a.m. in Courtroom 9. Dated: August 17, 2008 WALSTON CROSS

By: Gregory S. Walston

ATTORNEYS FOR PLAINTIFF

-4Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 5 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DECLARATION OF COUNSEL UNDER L-R 6-3 Gregory S. Walston, declare as follows: 1. I am an attorney licensed to practice before all California state courts, the United

States District Courts for the Northern and Eastern Districts of California, the United States Court of Appeals for the Ninth Circuit, and the Supreme Court of the United States. I am presently employed as a partner in the Law Firm of Walston Cross, and, in that capacity, I represent the plaintiff in this action. 2. Plaintiff seeks summary judgment on the issue of Senator McCain's eligibility to

run for, and serve as, President of the United States. 3. All defendants have been served with the summons, complaint and plaintiff's

pending motion for a preliminary injunction. Defendants are also receiving electronic copies of this motion and the exhibit. However, we have been unable to obtain a stipulation from opposing counsel as we have not yet been contacted by them. 4. Plaintiff respectfully submits that allowing this matter a full briefing schedule will

be prejudicial for the reasons set forth in the above argument. 5. There have been no previous time modifications in this action, nor will this

proposed modification affect the scheduling order. 6. L-R 37-1 is inapplicable because this matter does not involve a discovery dispute.

I declare under penalty of perjury that the foregoing is true and correct and based on my personal knowledge. Executed August 17, 2008 in San Francisco, California.

Gregory S. Walston

-5Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 6 of 137

EXHIBIT 1 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 7 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Gregory S. Walston, State Bar No. 196776 Orestes Alexander Cross, State Bar No. 250471 WALSTON CROSS 222 Columbus Avenue, Suite 420 San Francisco, California 94133 Telephone: (415) 956-9200 Facsimile: (415) 956-9205 Email: [email protected] ATTORNEYS FOR PLAINTIFF MARKHAM ROBINSON UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Case No. CV-08-3836 MARKHAM ROBINSON, Plaintiff v. SECRETARY OF STATE DEBRA BOWEN, et al. Defendants. PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION; SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

-1Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 8 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. IV.

TABLE OF CONTENTS Notice ................................................................................. 1 Memorandum of Points and Authorities ......................................... 3 Introduction ......................................................................... 3 Statement of Facts .................................................................. 4 Statement of the Issues ..............................................................4 Relief Sought ................................................................... 4

Standard .............................................................................. 5 Argument ............................................................................. 5 I. II. Plaintiff Has Standing ............................................ 5 Senator McCain is Ineligible to Run For, and Serve as, President Under Article II's "Natural Born" Citizen Requirement............................ 9 A. The Canal Zone was not "the United States" in 1936 for Purposes of Article II's Citizenship Clause............................................. 10 B. Natives of Unincorporated Territories are Not Citizens ................................................... 11 C. Citizenship as a Child of Citizens in not "Natural Born" Citizenship.................................. 12 1. The Exclusive Naturalization Powers of Congress............................................... 13 2. Citizenship by Descent in 1936: "Birth in the Canal Zone Does Not Establish Citizenship....... 14 Plaintiff's Requests for Injunctive Relief are Proper........... 17 Prompt Resolution is in the Public Interest.....................18

Conclusion........................................................................... 19

i
Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 9 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Federal Cases

TABLE OF AUTHORITIES Baker v. Carr 396 U.S. 186, 7 l. Ed. 2d 663, 82 S.Ct. 691 (1962).................................. 5 Boumediene v. Bush 128 S. Ct. 2229, 2253-54 (2008)....................................................... 12 Bullock v. Carter 405 U.S. 134, 31 L. Ed. 2d 92, 92 S. Ct. 849 (1972)................................ 7 Cardona v. Oakland Unified School Dist. 785 F. Supp. 837, 840 (N.D. Cal. 1982).............................................. 18 Celotex Corp. v. Catrett 477 U.S. 317 (1986)..................................................................... 5 Citizens for Legislative Choice v. Miller 993 F. Supp. 1041, 1044 (E.D. Mich. 1998).......................................... 7 City of Los Angeles v. Lyons 461 U.S. 95, 101 (1983)..................................................................5 Corona-Palomena v. INS 661 F.2d 814, 818 (9th Cir. 1981)..................................................... 12 Downes v. Bidwell 182 U.S. 244, 251 (1901)................................................................ 10, 14 Erum v. Cayetano 881 F.2d 689, 691 (9th Cir. 1989)..................................................... 6, 7 Farrell v. United States 381 F.2d 368, 369 (9th Cir. 1967)...................................................... 12 Federal Election Commission v. Akins 524 U.S. 11 (1998) ...................................................................... 6 Government of Canal Zone v. P. (Pinto) 590 F.2d 1344, 1351 (5th Cir.1979)................................................... 11 Hartman v. Summers 120 F.3d 157, 160 (9th Cir. 1997)..................................................... 6 Henderson v. Ft. Worth Independent School District 526 F.2d 286 (5th Cir. 1976) ........................................................... 7 Hollander v. McCain 2008 DNH 129; 2008 U.S. Dist. LEXIS 56729 (D. N.H. 2008)................... 2, 4 Hubbard v. EPA 949 F.2d 453 (D.C. Cir. 1991)......................................................... 17

ii
Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 10 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Imperial v. Castruita 418 F. Supp. 2d 1174, 1178 (C.D. Cal. 2006) ....................................... 7 L.A. Mem. Coliseum Comm'n v. Nat'l Football League 634 F.2d 1197, 1200 (9th Cir. 1980)................................................... 17 Lujan v. Defenders of Wildlife 504 U.S. 555, 560 (1992)................................................................ 5 In re Martiza Ellis A.K.A. Maritza M. Ellis 2006 WL 2008273 (BIA June 5, 2006) ............................................... 12 Matter of S. 3 I & N Dec. 589, 593 (BIA Apr. 26, 1949) ......................................... 12 Miller v. Albright 523 U.S. 420, 423-24 (1998) .......................................................... 13 Miyazawa v. City of Cincinnati 45 F.3d 126, 128 (6th Cir. 1995) ....................................................... 7, 8 Montana v. Kennedy 366 U.S. 308 (1961) ..................................................................... 13 No GWEN Alliance of Lane County, Inc. v. Aldridge 841 F.2d 946, 949 (9th Cir. 1988) ..................................................... 7 Rabang v. Boyd 353 U.S. 427 (1957)...................................................................... 11, 12 Rasul v. Bush 542 U.S. 466, 475 (2004) .............................................................. 15 Rassmussen v. United States 197 U.S. 516, 521 (1905)................................................................ 10 Regents of Univ. of Cal. v. Am. Broad. Cos. 747 F.2d 511, 519-20 (9th Cir. 1984).................................................. 17 Rent-A-Center, Inc. v. Canyon Television & Appliance Rental, Inc. 944 F.2d 597, 603 (9th Cir. 1991) ..................................................... 17 Rogers v. Bellei 401 U.S. 815 (1971)..................................................................... 13 Sampson v. Murray 415 U.S. 61, 90, 94 S. Ct. 937, 39 L. Ed. 2d 166 (1974) ........................... 17 Schlesinger v. Reservists Committee to Stop the War 418 U.S. 208, 94 S. Ct. 2925, 41 L. Ed. 2d 706 (1974) ............................. 6 The Schooner Exchange v. McFaddon 11 U.S (7 Cranch) ....................................................................... 15 United States v. Husband R. (Roach) 453 F.2d 1054, 1057 (5th Cir. 1971).................................................. 11 iii
Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 11 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

United States v. Wong Kim, Ark 169 U.S. 649, 702 (1898)...............................................................13, 15 Warth v Seldin 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975) ....................... 6 Williams v. Florida 399 U.S. 78 (1970) .................................................................... 10

Wilson v. Shaw 204 U.S. 24, 32-33 (1907) .............................................................. 11 Ex parte Young 209 U.S. 123, 152 (1908) ............................................................... 17 Zartarian v. Billings 204 U.S. 170, 173 (1907) ............................................................... 9 Constitutional Provisions U.S. Const., art. II, § 1, cl. 4 ................................................................ 9 U.S. Const. Art. IV, § 3, cl. 2 ............................................................... 10 U.S. Const., Amend. XIV ................................................................... 9 Federal Statutes 8 U.S.C. § 173 (1925) ...................................................................... 11, 14 8 U.S.C. § 204(c) (1925) ................................................................... 12 8 U.S.C. § 1403(a) .......................................................................... 10 8 U.S.C. § 1421(d) ........................................................................... 13 Acts of Congress 33 Stat. 2234, art. 3 (1904) ................................................................. 11 48 Stat. 797, ch. 344......................................................................... 14 50 Stat 558, ch 563 ...........................................................................10 State Statutes Cal. Bus. & Prof. Code § 17200 et seq..................................................... 17 Cal. Bus. & Prof. Code § 17203 ........................................................... 17 Other Authority 26 Op. U.S. Atty. Gen. 376 (Sept. 7, 1907)............................................... 15-16 25 Op. U.S. Atty. Gen. 474 (June 5, 1905) ............................................... 15-16 iv
Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 12 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

30 Op. U.S. Atty. Gen. 271 (July 14, 1914) .............................................. 16 38 Op. U.S. Atty. Gen. 10 (July 21, 1934) ................................................ 14 John Major, Prize Possession, the United States and the Panama Canal, 1903-1979 (1993) .................................................... 10 José A. Cabranes, Citizenship and the American Empire, 127 U. Pa. L. Rev. 391 (1978).......................................................... 11 Gerald L. Neuman, Anomalous Zones, 48 Stan L. Rev. 1197.......................... 11 Gabriel J. Chin, Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship, Arizona Legal Studied Discussion Paper No. 08-14, at 8-9 ....................... passim

v
Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 13 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

Gregory S. Walston, State Bar No. 196776 Orestes Alexander Cross, State Bar No. 250471 WALSTON CROSS 222 Columbus Avenue, Suite 420 San Francisco, California 94133 Telephone: (415) 956-9200 Facsimile: (415) 956-9205 Email: [email protected] ATTORNEYS FOR PLAINTIFF MARKHAM ROBINSON UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Case No. CV-08-3836 MARKHAM ROBINSON, Plaintiff v. SECRETARY OF STATE DEBRA BOWEN, et al. Defendants. PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR PARTIAL SUMMARY JUDGMENT; SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 18 NOTICE IS GIVEN THAT, on the day, time and department designated by the Court by a 19 separate order, plaintiff will ask the Court summary judgment or in the alternative for partial 20 summary judgment against defendants under Fed. R. Civ. P. 56. 21 Plaintiff's requested relief is based on the position that Senator McCain is ineligible to 22 serve as President of the United States under Article II's "natural born citizen" requirement. 23 Plaintiff, who is the chairperson and presidential elector of another party on the ballot, is 24 irreparably harmed by Senator McCain's illegal candidacy. 25 26 27 28
-1Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 14 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

This motion is based on this notice, the supporting memorandum of points and authorities, the complete records and files in this action, and all other matters the Court may properly consider. Dated: August 17, 2008 WALSTON CROSS

By: Gregory S. Walston

ATTORNEYS FOR PLAINTIFF

-2Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 15 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION This is an action asking the Court to resolve issues of Senator John McCain's eligibility to run for, and serve as, President of the United States, given that he was born in Panama and Article II of the Constitution requires that only "natural born" citizens may serve as President. This motion seeks summary judgment or partial summary judgment against defendants on grounds that there are no disputed issues of material fact precluding a finding that Senator McCain is not a "natural born" citizen eligible for the presidency under Article II. The one way to become a "natural born" citizen is to be born in the United States. Being born in Panama ­ even in the Panama Canal Zone ­ is not being born in the United States for purposes of the Constitution. A series of early-20th-century decisions known as the Insular Cases ruled that unincorporated territories acquired by the United States were not part of the nation for constitutional purposes. Although the Insular Cases did not address the Panama Canal zone, they dispel any possibility that the zone could be considered part of the United States. The zone was considered an unincorporated territory before it was returned to Panama in 1999. Indeed, some people born in Panama when it was under American jurisdiction have been deported from the United States or convicted of being here illegally. Senator McCain was not born in the United States and is not a "natural born" citizen under the plain language of Article II. In other words, he is ineligible to run for, and serve as, President of the United States. Yet he is running for President and is the presumptive nominee of the Republican Party. This motion seeks summary judgment against defendants on grounds that there is no disputed material fact precluding plaintiff's injunctive and declaratory relief. Senator McCain's candidacy, which violates Article II on its face, is causing irreparable harm to all competitors on the same ballot, including the American Independent Party and its electors. There is no way to monetarily compensate a competing presidential elector for competing with an illegal candidacy. This is a pure question of law that does not hinge on any question of fact, other than the fact that Senator McCain was born in Panama, which is undisputed. It can, and should, be

-3Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 16 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

addressed forthwith. Indeed, allowing Senator McCain's candidacy to proceed gives rise to the prospect that Senator McCain will win the Presidency and the courts will be forced to face the chaotic process of resolving this issue then. STATEMENT OF FACTS John McCain was born in the Panama Canal Zone in 1936. (Hollander v. McCain, 2008 DNH 129; 2008 U.S. Dist. LEXIS 56729 (D. N.H. 2008); Walston Decl. ¶ 6).1 STATEMENT OF THE ISSUES 1. A plaintiff must present a "distinct and palpable injury" to have standing. Plaintiff

wishes to challenge the legality of Senator McCain's candidacy. Plaintiff is the chairperson and presidential elector of a rival political party on the ballot, and plaintiff will be one of California's fifty-five electors who will vote for President if plaintiff's party prevails. Does a competitor's illegal candidacy cause plaintiff a "distinct and palpable" injury? 2. Article II requires a President to be a "natural born" citizen. Senator McCain was

born in Panama. Is Senator McCain eligible to be President? 3. An injunction is proper when the plaintiff faces irreparable harm, i.e., harm that

cannot be calculated monetarily. Here, plaintiff cannot be monetarily compensated for competing with an illegal presidential campaign. Should an injunction issue? RELIEF SOUGHT Plaintiff asks for the following relief: 1. For an injunction prohibiting Secretary Bowen from placing Senator McCain's name on the California ballot as a candidate for president; 2. For am injunction prohibiting the RNC and the CRP from representing Senator McCain as a qualified candidate for President of the United States to the California voters; It is not clear whether Senator McCain was born in the Panama Canal Zone or the Commonwealth of Panama. Senator McCain's eligibility for President would certainly be more attenuated if he were born in the Commonwealth. However, because Senator McCain asserts he was born in the Panama Canal Zone rather than the Commonwealth, this motion assumes that Senator McCain was born in the Canal Zone in order to avoid disputed facts.
-4Robinson v. Secretary of State, et al. 1

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 17 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

3.

For an injunction prohibiting Senator McCain from representing himself as a qualified candidate for President of the United States to the California voters

4.

For an injunction prohibiting the RNC, CRP and Senator McCain from attempting to place Senator McCain's name on the California ballot for the upcoming 2008 presidential election;

5.

For an injunction prohibiting the California Republican Presidential electors from casting their electoral votes for Senator McCain;

6.

For a declaratory judgment that Senator McCain is ineligible to run for, and serve as, President of the United States. STANDARD

Under Federal Rule of Civil Procedure 56(c), summary judgment is proper only where there is no genuine issue of material fact precluding judgment for the moving party. See generally, Celotex Corp. v. Catrett, 477 U.S. 317 (1986). ARGUMENT I. PLAINTIFF HAS STANDING. "Those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an actual case or controversy." City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). "[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). "[T]he irreducible constitutional minimum of standing contains three elements." Id. "First, the plaintiff must have suffered an `injury in fact' an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical." Id. (internal citations and quotation marks omitted). "Second, there must be a causal connection between the injury and the conduct complained of . . . ." Id. "Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Id. (internal quotation marks omitted).

-5Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 18 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Similarly, in Hartman v. Summers, 120 F.3d 157, 160 (9th Cir. 1997), the Court stated that to "the threat of future injury must be credible rather than remote or hypothetical." Id. In Federal Election Commission v. Akins, 524 U.S. 11 (1998) the Supreme Court extended standing to a plaintiff claiming to be "aggrieved" under the federal election laws because of the "failure to obtain relevant information" about a political action committee. Id. at 17. The Ninth Circuit has stated that plaintiff/voters possess "standing to challenge . . . ballot access restrictions in [their] capacities as registered voter[s]. Erum v. Cayetano, 881 F.2d 689, 691 (9th Cir. 1989) citing Baker v. Carr, 396 U.S. 186, 7 l. Ed. 2d 663, 82 S.Ct. 691 (1962). In Baker, the Court stated that "voters who allege facts showing disadvantage to themselves as individuals have standing to sue." However, a mere voter, or taxpayer, without more, apparently lacks standing to challenge an illegal election. The Supreme Court has "onsistently held that a plaintiff raising only a generally available grievance about government ­ claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large--does not state an Article III case or controversy." Lujan, 504 U.S. at 573-74. These holdings include Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S. Ct. 2925, 41 L. Ed. 2d 706 (1974), where the Court ruled that a group of citizens lacked standing to litigate the eligibility, under the Incompatibility Clause, of members of Congress to serve simultaneously in the military reserves. On the other hand, a plaintiff has standing to challenge a process when he or she has a personal stake in that process. The question of standing depends upon whether the party has alleged such a "personal stake in the outcome of the controversy." Baker v. Carr, 369 U.S. 186, 204 (1962). "The standing question is whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal court jurisdiction." Warth v Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). Plaintiff "must instead demonstrate a personal stake in the outcome of the controversy." No GWEN Alliance of Lane County, Inc. v. Aldridge, 841 F.2d 946, 949 (9th Cir. 1988).

-6Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 19 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

A series of cases have recognized that a plaintiff has standing to challenge an election when he or she has a personal interest in the outcome of the election. The Supreme Court in Bullock v. Carter, 405 U.S. 134, 31 L. Ed. 2d 92, 92 S. Ct. 849 (1972) allowed a suit by voters to challenge state ballot access requirements, where the voters/plaintiffs were persons who were seeking to become candidates but were barred under the subject statute. In Erum v. Cayetano, 881 F.2d 689 (9th Cir. 1989), a voter was allowed to challenge a state ballot access requirement, where the plaintiff/voter was a non-partisan candidate who was seeking to become a candidate but was barred by the applicable statute. In Henderson v. Ft. Worth Independent School District, 526 F.2d 286 (5th Cir. 1976), a voter wishing to support a particular potential candidate was found to have standing to challenge a state statute ballot requirements. And as noted above, in Baker, 396 U.S. at 204 the Court held that "voters who allege facts showing disadvantage to themselves as individuals have standing to sue." Significantly, the reported cases that have addressed the issue have held that plaintiff/voters who have standing are those who have a personal stake in the outcome of the election, while plaintiff/voters who lack standing are those who have no personal stake in the outcome. In Imperial v. Castruita, 418 F. Supp. 2d 1174, 1178 (C.D. Cal. 2006), the Court held that plaintiffs had standing to challenge an election where they, as voters, "would be subject to an illegal election, in violation of federal and state elections law." See also, Miyazawa v. City of Cincinnati, 45 F.3d 126, 128 (6th Cir. 1995) ("While the general language of the opinions in these cases seems to support Miyazawa's position, a careful review reveals that in each case, the plaintiff/voter had a personal stake in the outcome of the election"); Citizens for Legislative Choice v. Miller, 993 F. Supp. 1041, 1044 (E.D. Mich. 1998) ("The plaintiff's position in Miyazawa was distinguishable from cases in which the plaintiff/voter had a personal stake in the outcome of the election (i.e., the voter was a potential candidate, a supporter of the potential candidate, or was unable to vote for his specific candidate of choice due to the subject law"). Further, the only authority on who has standing to challenge a the eligibility of a presidential candidate holds that electors have such standing:

-7Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 20 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

While some scholars contend that natural born citizenship questions might be justiciable, this conclusion is debatable, and it is particularly questionable whether anyone with standing would sue. Of course, secretaries of states, electors, the President of the Senate, and perhaps the members of the House of Representatives make judgments about presidential eligibility. Gabriel J. Chin, Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship, Arizona Legal Studied Discussion Paper No. 08-14, at 5-6 (Attached as Exhibit A) (emphasis added). Here, the American Independent Party is recognized the California Secretary of State as a "qualified political party," and specific sections of the California Elections Code apply to the American Independent Party specifically. (Walston Decl. at ¶¶ 2-5.) Plaintiff Robinson is an American Independent Party presidential elector. (Robinson Decl. at ¶ 1.) He is also the chairperson-elect of the American Independent Party. (Robinson Decl. at ¶ 1.) As both an elector and chairperson-elect of the American Independent Party, plaintiff has a personal interest in the outcome of the 2008 presidential election. His party is on the same ballot that Senator McCain is on. His vote as a presidential elector is at state: if his party wins the popular vote in California, he will have the opportunity of casting one of the 536 electoral votes for President of the United States. Short of being a candidate himself, it is difficult to conceive of a party with a greater personal interest in a presidential election. Indeed, it is unclear whether even a candidate would have greater standing than an elector: unlike a presidential candidate, a presidential elector is directly elected from the general election. Cf., Chin, Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship, Arizona Legal Studied Discussion Paper No. 08-14, at 5-6. At any rate, there is little doubt that, as an elector and chairman-elect of a rival political party that is competing with Senator McCain on the same ballot, plaintiff has "a personal stake in the outcome of the election" sufficient to establish his standing to challenge the election. Miyazawa v. City of Cincinnati, 45 F.3d 126, 128 (6th Cir. 1995). /// /// ///

-8Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 21 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

II. SENATOR McCAIN IS INELIGIBLE TO RUN FOR, AND SERVE AS PRESIDENT UNDER ARTICLE II'S "NATURAL BORN" CITIZEN REQUIREMENT.2 The Constitution provides that "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." U.S. Const., art. II, § 1, cl. 4 (emphasis added). According to the Supreme Court, there are only two ways to become a citizen: 1) birth in the United States, thus becoming a citizen under the citizenship clause of the Fourteenth Amendment (U.S. Const., Amend. XIV), or 2) satisfaction of every requirement of a statute enacted by Congress granting citizenship to a class of people. (E.g., Zartarian v. Billings, 204 U.S. 170, 173 (1907).) The second category includes naturalization of individuals, collective naturalization of groups (such as when a new territory is acquired), and naturalization at birth of certain classes of children born abroad to citizens. Senator McCain's 1936 birth in the Panama Canal Zone conferred neither sort of citizenship at the time. In 1936, the Canal Zone fell in to a gap in the law, covered neither by the citizenship clause nor Revised Statutes § 1993, the only statute applicable to births to U.S. citizens outside the United States. As then-Representative John Sparkman explained in 1937: "the Canal Zone is not such foreign territory as to come under the law of 1855 [R.S. § 1993] and, on the other hand, it is not part of the United States which would bring it within the fourteenth amendment." The problem was well known; a 1934 American Bar Journal article explained, "we have no statutory provisions defining the nationality status of persons born in the Canal Zone. Gabriel J. Chin, Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship, Arizona Legal Studied Discussion Paper No. 08-14, at 4-5 (Attached as Exhibit A.) Due to this problem, in 1937, Congress passed a statute conferring citizenship on "any person born in the Canal Zone on or after February 26, 1904" who had at least on U.S. citizen
2

Plaintiff's argument here rests on the recent law-review article, Gabriel J. Chin, Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship, Arizona Legal Studied Discussion Paper No. 08-14 (Attached as Exhibit A). The substance of plaintiff's argument follows professor Chin's article.
-9Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 22 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

parent. (Act of Aug. 4, 1937, § 1, 50 Stat 558, ch 563, codified at 8 U.S.C. § 1403(a). This Act made Senator McCain a citizen. But again, to be a "natural born" citizen, one must be a citizen at birth. Chin, supra, at n. 14. Since Senator McCain became a citizen in his eleventh month of life, he does not satisfy this requirement. He is not a "natural born" citizen, and thus is not eligible to run for, or serve as, President of the United States. Id. A. The Canal Zone was not "the United States" in 1936 for Purposes of Article II's Citizenship Clause.

The first sentence of Section 1 of the Fourteenth Amendment provides that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." By this sentence, the People of the United States overruled Dred Scott`s holding that persons of African descent born in the United States were not citizens. But the provision does not define the "United States." Surely it applies to the States, but it does not say what else, if anything, it covers. Although the Canal Zone was under the exclusive control of the United States at the time of Senator McCain's birth (See generally, John Major, Prize Possession, the United States and the Panama Canal, 1903-1979 (1993)), the constitutional status of places like the Canal Zone has been resolved in the so-called Insular Cases. The Insular Cases held that the Constitution does not apply in full to places like the Canal Zone. The Insular Cases arose after the United States acquired overseas possessions following the Spanish American War. The nation had the power to acquire territories. U.S. Const. Art. IV, § 3, cl. 2. The Constitution's application turned on whether a particular territory "has been incorporated into the United States as a part thereof, or simply held . . . under the sovereignty of the United States as a possession or dependency." Rassmussen v. United States, 197 U.S. 516, 521 (1905), overruled on other grounds, Williams v. Florida, 399 U.S. 78 (1970). If incorporated, the full Constitution applied, but an unincorporated territory was "not a part of the United States" for constitutional purposes. Downes v. Bidwell, 182 U.S. 244, 287 (1901). Thus, only a limited set of fundamental rights restricted congressional authority. Therefore, the Sixth Amendment right to trial by jury in criminal cases did not apply to the Philippines; though governed by the

- 10 Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 23 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

United States, the Philippines was not part of the United States. Rassmussen, 197 U.S. at 520-21 (citing Dorr v. United States, 195 U.S. 138, 149 (1904)). However, Congress incorporated Alaska into the United States, so the Sixth Amendment applied. Id. at 522-25. Congress ultimately granted citizenship to the residents of many territories, including Alaska, Hawaii and Puerto Rico. In other territories, however, Congress made residents noncitizen "nationals" who owed allegiance to the United States, but were not vested with indefeasible citizenship. Inhabitants of the Philippines, for example, were nationals, but with independence lost that status and all connection with the United States. Rabang v. Boyd, 353 U.S. 427 (1957). If not naturalized, they became aliens. Id. at 430-31. The Canal Zone was an unincorporated territory like the Philippines, rather than an incorporated territory like Alaska. José A. Cabranes, Citizenship and the American Empire, 127 U. Pa. L. Rev. 391 (1978). One piece of evidence, of course, is that the Canal Zone was returned to Panama, consistent with the understanding that the United States did not obtain ownership of the territory. Wilson v. Shaw, 204 U.S. 24, 32-33 (1907) (Panama grants rights to United States "which the United States would possess and exercise if it were the sovereign") (quoting 33 Stat. 2234, art. 3 (1904)). In addition, Title 8 of the United States Code, "Aliens and Citizenship", excluded the Canal Zone from the definition of the United States. 8 U.S.C. § 173 (1925). Although the Supreme Court never faced the question, federal courts held that during the period of United States jurisdiction "[t]he Canal Zone is an unincorporated territory of the United States." United States v. Husband R. (Roach), 453 F.2d 1054, 1057 (5th Cir. 1971); see also Gerald L. Neuman, Anomalous Zones, 48 Stan L. Rev. 1197, 1228 n.186 (1996) (citing, e.g., Government of Canal Zone v. P. (Pinto), 590 F.2d 1344, 1351 (5th Cir.1979) ("the provisions of the Constitution do not apply of their own force")). B. Natives of Unincorporated Territories are Not Citizens

The Insular Cases remain good law. United States v. Husband R. (Roach), 453 F.2d 1054, 1057 (5th Cir. 1971). Accordingly, persons born in the Canal Zone are not citizens under the citizenship clause of the Fourteenth Amendment because they were not born in the "United States." Boumediene v. Bush, 128 S. Ct. 2229, 2253-54 (2008). As the Board of Immigration

- 11 Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 24 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Appeals in the U.S. Department of Justice explained in 1949, "[t]he principle of jus soli--the law of the place of one's birth--does not obtain in the outlying possessions of the United States . . . presumably because the Constitution does not extend to outlying possessions." Matter of S., 3 I & N Dec. 589, 593 (BIA Apr. 26, 1949). Congress also legislated on the understanding that Canal Zone natives were not automatically birthright citizens, although it gave them special status as "non-quota" immigrants, exempt from numerical limitation. 8 U.S.C. § 204(c) (1925) (person born in the Canal Zone is a "non-quota immigrant" entitled to advantageous treatment, but, under § 203, an immigrant is an "alien"). Most cases about citizenship by birth in an unincorporated territory address the Philippines. Drawing on the Insular Cases, the Second, Third and Ninth Circuits held that "birth in the Philippines during the territorial period does not constitute birth `in the United States' under the Citizenship Clause of the Fourteenth Amendment, and thus does not give rise to United States citizenship." Rabang v. INS, 35 F.3d 1449, 1452 (9th Cir. 1994). Significantly, individuals born in the Canal Zone under United States jurisdiction have been deported (see In re Martiza Ellis A.K.A. Maritza M. Ellis, 2006 WL 2008273 (BIA June 5, 2006) (person did not gain U.S. nationality by birth in Canal Zone)) or convicted of unlawful presence (Farrell v. United States, 381 F.2d 368, 369 (9th Cir. 1967) (per curiam)) in the United States. Thus, Senator McCain's birth in the Canal Zone, by itself, cannot make him a natural born citizen; it did not make him a citizen at all. C. Citizenship as a Child of Citizens in not "Natural Born" Citizenship.

If Senator McCain was not born in the United States for purposes of the Fourteenth Amendment, under the traditional view, if he is to be a citizen it is necessary to find a statute making him one. The blunt rule applied by courts and the executive in this context is that "[e]vidence of foreign birth gives rise to a presumption that the person so born is an alien." Corona-Palomena v. INS, 661 F.2d 814, 818 (9th Cir. 1981). Persons born in the Canal Zone are presumptively aliens. See In re Martiza Ellis A.K.A. Maritza M. Ellis, 2006 WL 2008273 (BIA June 5, 2006). In 1936, no statute granted citizenship to children of U.S. citizens born in the Canal Zone.

- 12 Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 25 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1. The Exclusive Naturalization Powers of Congress. According to the Supreme Court, the Constitution "contemplates two sources of citizenship, and two only: birth and naturalization." United States v. Wong Kim, Ark, 169 U.S. 649, 702 (1898). Unless born in the United States, a person "can only become a citizen by being naturalized . . . by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens." Id. Accord Miller v. Albright, 523 U.S. 420, 423-24 (1998). The citizenship statutes are exclusive; there is no residual common-law or natural-law citizenship. 8 U.S.C. § 1421(d). The Court has held that citizens have no constitutional right to transmit their citizenship to children. In Rogers v. Bellei, 401 U.S. 815 (1971), the Supreme Court upheld a statute requiring children born overseas to citizen parents to reside in the United States to retain their citizenship. The Court explained that Congress had no power to remove "FourteenthAmendment-first-sentence" citizenship, but the citizenship clause "obviously did not apply to any acquisition of citizenship by being born abroad of American parents. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action." Id. at 827-830. Indeed, "Congress may withhold citizenship from persons" born overseas to citizen parents. Id. at 831. Since, with respect to a foreign-born child of a United States citizen, Congress could "deny him citizenship outright," it could impose the lesser burden of requiring United States residence to retain citizenship. Id. at 835. Congressional power to withhold citizenship from children of U.S. citizens is not hypothetical, it is law. The 7th Congress, which included Framers Gouverneur Morris and Abraham Baldwin, among others, did precisely that. In Montana v. Kennedy, 366 U.S. 308 (1961), the Supreme Court construed an 1802 statute to mean that "[f]oreign-born children of persons who became American citizens between April 14, 1802 and 1854 were aliens." Id. at 311. Thus, children of members of the armed forces serving overseas, and diplomats and civil servants in foreign posts were not only not "natural born citizens", ineligible to be President, they were not citizens at all. Id.

- 13 Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 26 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

2. Citizenship by Descent in 1936: "Birth in the Canal Zone Does Not Establish Citizenship. In 1936, when Senator McCain was born, Revised Statutes § 1993 governed citizenship of children born overseas to U.S. citizen parents. It did not grant citizenship to those born in the Canal Zone. Although the original version of § 1993 dated to 1855 (passed to reverse the policy described in Montana v. Kennedy), the version in force in 1936 granted citizenship to "[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States." Act of May 24, 1934, § 1, 48 Stat. 797, ch. 344. The statute had two other qualifications. It provided that "citizenship shall not descend to any such child unless the citizen [parent] has resided in the United States previous to the birth of such child." Id. This prevented the creation of overseas enclaves of citizens with no connection to the United States; the foreign-born child of a citizen who had lived in the United States was a citizen, but the grandchild would be only if the condition were satisfied. In addition, if one parent was not a citizen, citizenship would terminate (38 Op. U.S. Atty. Gen. 10 (July 21, 1934)) "unless the child comes to the United States and resides therein for at least five years continuously immediately previous to his eighteenth birthday," and took an oath. Act of May 24, 1934, § 1, 48 Stat. 797, ch. 344. By its terms, § 1993 applied if the Canal Zone is "out of the limits and jurisdiction of the United States." By the rule of the Insular Cases, the Canal Zone was not the "United States," so the first criterion is satisfied. However, by statute (8 U.S.C. § 173 (1925)) and given exclusive United States control of the Canal Zone, it was not out of the "jurisdiction" of the United States. The Constitution's text itself demonstrates that United States "jurisdiction" and the "United States" in a territorial sense are distinct concepts. "The 13th Amendment to the Constitution, prohibiting slavery and involuntary servitude `within the United States, or in any place subject to their jurisdiction,' . . . show[s] that there may be places within the jurisdiction of the United States that are no part of the Union." Downes v. Bidwell, 182 U.S. 244, 251 (1901) (opinion of Brown J.). See also, e.g., Rasul v. Bush, 542 U.S. 466, 475 (2004) (United States has "plenary and exclusive jurisdiction" over Guantanamo, but not "ultimate sovereignty").

- 14 Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 27 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Court construed a passage of the 1855 version of what became § 1993; that language remained unchanged in the 1934 revision. The Court held that the phrases "in the United States and subject to the jurisdiction thereof" in the citizenship clause of the Fourteenth Amendment "must be presumed to have been understood and intended by [Congress and the States as] the converse of the words `out of the limits and jurisdiction of the United States' as habitually used in the naturalization acts." Id. at 687. That is, "jurisdiction" in § 1993 means the same thing as it does in the Fourteenth Amendment. Id. Wong Kim Ark held that natives and citizens of China living in the United States were subject to the "jurisdiction" of the United States because they "are entitled to the protection of and owe allegiance to the United States, so long as they are permitted by the United States to reside here, and are `subject to the jurisdiction thereof' in the same sense as all other aliens residing in the United States." Id. at 694. Based on The Schooner Exchange v. McFaddon, 11 U.S (7 Cranch) 116 (1812), Wong Kim Ark found persons not subject to the jurisdiction of the United States to include "children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory." Wong Kim Ark, 169 U.S. at 693. Accordingly, individuals are within a country's "jurisdiction" if they are in a place that obligates them to that nation. Id. Wong Kim Ark thus recognizes four categories. A person can be: 1) both in the United States and subject to its jurisdiction, like a Chinese immigrant in California; 2) neither in the United States nor subject to its jurisdiction, like a Brazilian citizen in São Paulo; 3) in the United States but not subject to its jurisdiction, like a British soldier occupying Washington, D.C. during the War of 1812; or 4) out of the United States but subject to its jurisdiction, like a sailor on a United States ship in foreign waters. Only persons born in the first category are citizens by birth under the Fourteenth Amendment; only those born in the second category to U.S. citizens are covered by §1993. Id. The Canal Zone is in the fourth category. Under doctrine of the Insular Cases, the House Committee on Immigration and Naturalization's conclusion that "Children of American parents in the Canal Zone are not outside the jurisdiction of the United States, neither are they within the limits of the United States" is inescapable. As an unincorporated territory, the Canal Zone is not

- 15 Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 28 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

the "United States." Attorney General Charles Bonaparte applied this view to the Canal Zone, opining in 1907 that "[t]he words `sovereign rights' `within the Zone' mean, among other things, the right to the allegiance of the Zone's people" and imposed the corresponding duty to protect them. 26 Op. U.S. Atty. Gen. 376 (Sept. 7, 1907). In addition, many statutes and Attorney General Opinions recognized that the Canal Zone was under United States "jurisdiction." 30 Op. U.S. Atty. Gen. 271 (July 14, 1914) ("That the Canal Zone is `territory under the control or jurisdiction' of the United States has been held in a long line of opinions by the Attorneys General."); 25 Op. U.S. Atty. Gen. 474 (June 5, 1905) (by treaty "the Canal Zone became subject to the jurisdiction of the United States"; accordingly, Thirteenth Amendment applied). In short, John McCain is not a "natural born" citizen under the plain language of Article II. Many commentators and others have minimized Senator's McCain's ineligibility as a technicality that should be overlooked in light of McCain's service to his country. While Senator McCain's service to his country should not be minimized, however, neither should the text of the Constitution: Of course, McCain's lack of citizenship at birth is a technicality ne plus ultra. Presidential candidates who obtained their citizenship after birth are no more likely to be disloyal than those born citizens, and the People of the United States should be allowed to elect whomever they choose.24 Therefore, as a policy matter, Senator McCain should be eligible to the Office of President. Yet, the text of the Constitution forbids it. The rule of law would be mortally wounded if courts, Congress or the executive could legitimately ignore provisions of law they deemed obsolete under the circumstances. It would be a grim moment in history if the very oath to "preserve, protect and defend the Constitution" that made a person President was also a falsehood that defied the document. Gabriel J. Chin, Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship, Arizona Legal Studied Discussion Paper No. 08-14, at 8-9 (Attached as Exhibit A). /// /// /// /// /// ///

- 16 Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 29 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

III. PLAINTIFF'S REQUESTS FOR INJUNCTIVE RELIEF ARE PROPER. Federal courts have authority to enjoin unconstitutional acts. See, e.g., Ex parte Young, 209 U.S. 123, 152 (1908): "The general doctrine [that the] Courts of the United States will restrain a state officer from executing an unconstitutional statute of the State, when to execute it would violate rights and privileges of the complainant which had been guaranteed by the [U.S.] Constitution, and would work irreparable damage and injury to him, has never been departed from." "The court's power to enjoin unconstitutional acts by the government is inherent in the Constitution itself." Hubbard v. EPA, 949 F.2d 453, n. 15 (D.C. Cir. 1991), affirmed in part and reversed in part on other grounds, 949 F.2d 453. Further, section 17200 et seq. of the California Business and Professions Code (which is set forth in the complaint against all parties except the Secretary of State) provides further authority to enjoin defendants' actions. Section 17203 specifies that "[a]ny person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any court of competent jurisdiction. The question is whether the Court's exercise of its equitable power is proper in this case, i.e., whether plaintiff will suffer irreparable hard. As recognized by the Ninth Circuit, "tangible injuries, such as damage to ongoing recruitment efforts and goodwill, qualify as irreparable harm." Rent-A-Center, Inc. v. Canyon Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991), citing Regents of Univ. of Cal. v. Am. Broad. Cos., 747 F.2d 511, 519-20 (9th Cir. 1984). Harm that can be calculated monetarily, on the other hand, is not irreparable harm. Rent-ACenter, Inc., 944 F.2d at 603 (citing Los Angeles Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1201 (9th Cir. 1980)); see also Sampson v. Murray, 415 U.S. 61, 90, 94 S. Ct. 937, 39 L. Ed. 2d 166 (1974) ("Mere injuries, however substantial, in terms of money, time and energy necessarily expended are not enough" to constitute irreparable injury) (quotation omitted). This case involved plaintiff's fundamental right to vote and participate in our democratic system. As noted by the Court in Imperial v. Castruita, 418 F. Supp. 2d 1174, 1178 (C.D. Cal. 2006), there is no way to monetarily compensate a party for being subject to the infringement on

- 17 Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 30 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

this right inherent in an illegal election. "Abridgement or dilution of a right so fundamental as the right to vote constitutes irreparable injury." Cardona v. Oakland Unified School Dist., 785 F. Supp. 837, 840 (N.D. Cal. 1982). Here, there is no way to monetarily compensate plaintiff for facing the prospect of losing his electoral vote to an illegal campaign, and he faces an irreparable injury. Since plaintiff's prospective harm is impossible to calculate in monetary terms, this Court's equitable powers are the only meaningful remedies plaintiff has. An injunction is proper. IV. PROMPT RESOLUTION IS IN THE PUBLIC INTEREST. The importance of expeditious resolution of these issues should be emphasized. If Senator McCain is ineligible to be President, then preventing his candidacy has no consequence except preventing the chaos of dealing with the issue after the fact. The injunctive termination of Senator McCain's candidacy does him no harm if he is ineligible to be President in the first instance. On the other hand, refusing to injunctively terminate Senator McCain's candidacy, despite his ineligibility, imposes substantial harm on plaintiff because there is only one election. Once the election happens, there is no mechanism to repeat a general election to vindicate plaintiff's interests in competing against legitimate campaigns (nor, in the interests of domestic stability, should there be such a mechanism). In short, to delay plaintiff's remedy here is to deny it. Finally, it is patently in the public interest to resolve this issue now. Senator McCain is the presumptive nominee of one of the two major parties in this country, and it suffices to say there is a distinct possibility he may win the presidency. There is no sense in subjecting the public to the chaos and uncertainty of dealing with the question of whether Senator McCain can be president after the election. Given that McCain's eligibility is a pure question of law that can be resolved now, it would be irresponsible to delay resolution of this issue. /// /// /// /// ///

- 18 Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 31 of 137

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CONCLUSION Plaintiff acknowledges the issue of Senator McCain's eligibility to be President is novel. Nonetheless, given the fact that it is a pure question of law with no disputed facts that can be resolved now, plaintiff has met his burden of establishing his entitlement to a summary judgment. Accordingly, plaintiff respectfully asks the Court to enter the requested injunctions and declaratory judgment forthwith. Dated: August 17, 2008 WALSTON CROSS

By: Gregory S. Walston

ATTORNEYS FOR PLAINTIFF

- 19 Robinson v. Secretary of State, et al.

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 32 of 137

Exhibit A

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 33 of 137

Arizona Legal Studies
Discussion Paper No. 08-14
Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship
Gabriel J. Chin The University of Arizona James E. Rogers College of Law

July 2008

Case 3:08-cv-03836-WHA

Document 12

Filed 08/18/2008

Page 34 of 137

COMMENT DRAFT. SUBJECT TO REVISION AND CORRECTION.

WHY SENATOR JOHN MCCAIN CANNOT BE PRESIDENT: ELEVEN MONTHS AND A HUNDRED YARDS SHORT OF CITIZENSHIP
Gabriel J. Chin* Abstract Because Senator John McCain was not a citizen at birth, he is not a "natural born Citizen" and thus is not "eligible to the Office of President" under the Constitution. Senator McCain was born in 1936 in the Canal Zone to U.S. citizen parents. As requested by Senator McCain's campaign, distinguished constitutional lawyers Laurence Tribe and Theodore Olson examined the law and issued a detailed opinion offering two reasons that Senator McCain was a natural born citizen. Neither