Alabama Supreme Court upholds decision to toss 'birther' lawsuit, Chief Justice Roy Moore dissents


By Brian Lawson | blawson@al.com
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on March 21, 2014 at 3:23 PM, updated March 21, 2014 at 3:25 PM


President Barack Obama is sworn-in for a second term as the President of the United States by Supreme Court Chief Justice John Roberts during his public inauguration ceremony at the U.S. Capitol in Washington, D.C. on January 21, 2013. Michelle Obama holds the bible. (Mark Gail/MCT)

MONTGOMERY, Alabama -- The Alabama Supreme Court has upheld the dismissal of a 2012 lawsuit which wanted Alabama's Secretary of State to certify the birth certificate of each presidential candidate before allowing their names to appear on the general election ballot.

The court ruled 7-2 on the issue, with Chief Justice Roy Moore one of two justices who dissented from the majority's decision, arguing the lower court should have directed the secretary of state to check candidate birth certificates.

The justices who agreed that the lawsuit should be dismissed were Michael F. Bolin, Tommy Bryan, James Allen Main, Glenn Murdock, Greg Shaw, Lyn Stuart and Alisa Kelly Wise. Moore and Tom Parker both wrote opinions dissenting from the majority.

President Barack Obama's Hawaii birth certificate has been the source of years ofspeculation in some circles, with Obama critics arguing he was not born in the U.S. and is thus ineligible to serve as president.

The lawsuit was filed in Montgomery Circuit Court in October 2012, 26 days before the general election, by Madison County resident Hugh McInnish and independent presidential candidate Virgil Goode. The lawsuit wanted the court to order then-Secretary of State Beth Chapman to obtain the "certified" birth certificates of each candidate as part of her duty to verify candidate eligibility.

The Supreme Court majority upholding the lower court decision did not write an opinion, but justices Bolin and Bryan both wrote concurring opinions. Moore wrote a dissent, arguing the Alabama Secretary of State has a duty to investigate a presidential candidate's qualifications.

Bolin wrote that it was desirable to check the qualifications of each candidate and the Alabama Legislature should authorize certain investigative and related powers to the Secretary of State's office to conduct such checks in the future, but he said for now, the office did not have the authority to engage in such checks.

Bolin argued that the lawsuit was not timely and noted that absentee ballots had to be printed for counties to use by Sept. 27, 2012. The lawsuit was not filed until Oct. 11, Bolin argued. He also noted that Chapman had told the plaintiffs in February she had no duty to investigate presidential candidates.

Bolin found that the law does not compel an investigation of candidate eligibility by the secretary's office and noted that other courts have found the issue of qualification is best left to the parties that nominate their candidates. He pointed out that the Secretary of State has no subpoena power or investigative authority.

Bryan wrote that he agreed with Bolin that the law does not currently require the secretary's office to investigate the qualifications of presidential candidates. Bryan also agreed that there is no current law that allows an Alabama court to "entertain a pre-election challenge to the qualifications of a presidential candidate appearing on the general election ballot in this state."

Moore took the opposite view. He pointed out the Montgomery court did not rule on the lawsuit before the election. On Nov. 10, four days after Obama was reelected, the plaintiffs filed a motion asking that the issue be decided before Alabama's members of the Electoral College were to vote Dec. 17.

The Secretary of State's office filed its second motion to dismiss the lawsuit Nov. 20, arguing the results of the election made the case moot and that the court did not have jurisdiction over the issue.
The court held a hearing Dec. 6 on the issue and dismissed the lawsuit the same day, Moore noted.

Moore found that the high court had authority to hear appeals of extraordinary writs filed in circuit court, that Goode, as a candidate, had standing to sue.

Moore also found that the filing of the lawsuit 26 days before the general election, was not a problem that disqualified it, and the filing date did not constitute an "inexcusable delay" that would cause prejudice to another party.

The chief justice argued that the results of the election did not render "moot" the plaintiffs' claim that the Secretary of State had a duty to verify under the "natural-born citizen clause of the United States Constitution" each candidate's eligibility to serve as president, before their names can appear on the ballot.

Moore wrote that the Secretary of State has a duty under the U.S. Constitution to ensure candidates are qualified for office and he said the circuit court should have granted the plaintiffs petition in order to implement the natural-born citizen qualifications clause in future elections.

Moore also argued that the court should have granted the petition and ordered the Secretary of State to investigate the qualifications of the presidential candidates who appeared on the 2012 ballot.

"Although the removal of a President-elect or a President who has taken the oath of office is within the breast of Congress, the determination of the eligibility of the 2012 presidential candidates before the casting of the electoral votes is a state function," Moore wrote.

"This matter is of great constitutional significance in regard to the highest office in our land. Should he who was elected to the presidency be determined to be ineligible, the remedy of impeachment is available through the United States Congress, and the plaintiffs in this case, McInnish and Goode, can pursue this remedy through their representatives in Congress."

Parker wrote he concurred with Moore, but didn't believe the secretary has a duty to investigate every proposed candidate.
Parker argued the secretary does have a duty when the office receives notice a potential candidate may lack the necessary qualifications to be placed on the Alabama ballot.

Parker's short opinion also said he believed the secretary had received information from McInnish "sufficient to raise a duty to investigate the qualifications of President Barack Hussein Obama before including him as a candidate on Alabama's election ballot."

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