WASHINGTON — Undaunted by election results Nov. 4, several plaintiffs have pursued lawsuits asserting that President-elect Barack Obama is ineligible to serve because he is not a “natural-born citizen.” Their claims were rejected in lower courts, but they have filed motions and appeals with the Supreme Court.
Question: What do these lawsuits say?
Answer: One filed by Philip Berg, a lawyer in Lafayette Hill, Pa., asserts that Obama was born in Kenya, even though he has a birth certificate from the state of Hawaii showing he was born there on Aug. 4, 1961.
A second, by Leo C. Donofrio of East Bruns wick, N.J., asserts that neither Sen. John McCain nor Obama is a natural-born citizen.
“Even if it were proved (Obama) was born in Hawaii,” he was not a “natural-born citizen,” Donofrio says, because Obama’s father was born in Kenya. But under U.S. law, people born in the U.S. are natural-born citizens.
Berg sued Obama, while Donofrio sued New Jersey’s secretary of state. Initially, the lawsuits sought a court order to remove Obama’s name from the ballot. Since early November, they have lodged appeals and motions saying courts should intervene to block Obama from becoming president.
Q: How have these lawsuits fared?
A: They have lost at every stage. Berg’s lawsuit was rejected by a federal judge in Philadelphia who ruled that Berg had no standing to sue. To bring a lawsuit, someone must show he has suffered a personal injury of some sort. For example, a taxpayer cannot bring a lawsuit claiming the war in Iraq is unconstitutional because this is a general complaint. This doctrine prevents the courts from deciding broad and abstract constitutional questions.
Having lost before U.S. District Judge R. Barclay Surrick on Oct. 24, Berg skipped the U.S. Court of Appeals and filed an appeal with the Supreme Court on Oct. 30. Donofrio’s lawsuit was rejected by state judges in New Jersey. On Nov. 6, he filed an “application for emergency stay” at the Supreme Court, first with Justice David Souter and then Justice Clarence Thomas.
Q: What will the Supreme Court do?
A: If these lawsuits had gained traction early this year, it is possible a judge could have ordered a hearing to review the evidence on whether Obama or McCain was a “natural- born citizen,” as required by the Constitution.
But these lawsuits have little chance of gaining a hearing now.
The Supreme Court decides legal issues. It does not resolve factual disputes. In these lawsuits, the plaintiffs have not persuaded any judge that the president-elect was, in fact, not born in Hawaii. The Supreme Court would have no basis for reconsidering that basic fact.
The justices also review rulings made by lower courts, usually when there is disagreement about the law. In these cases, lower courts dismissed the lawsuits without major rulings.
In Donofrio’s case, he did not file a full appeal but instead an “emergency stay” motion with two justices. When persistent litigants file motions with more than one justice, the court’s normal practice is to refer the matter to the full court. In Donofrio’s bid for an emergency stay, the court’s computer said it was “Distributed for Conference of December 5.” This routine referral was treated on some blogs as though the justices had agreed to debate or deliberate on the matter.
If the justices believe an “emergency stay” raises an important point, they ask the other side to respond. They did not bother to ask for a response to Donofrio’s motion.
The court receives about 150 appeals per week, and all but a small fraction are rejected without discussion among the justices.
Donofrio’s is likely to be denied without comment today. Berg’s is likely to meet the same fate.
