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COA: Obama, McCain eligible to be president

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More than a year after the 2008 presidential election, the Indiana Court of Appeals ruled that Sens. John McCain and Barack Obama were eligible to run for the office.

Steve Ankeny and Bill Kruse pro se filed the suit against Gov. Mitch Daniels, Ankeny and Kruse v. Governor of the State of Indiana, No. 49A02-0904-CV-353, claiming the governor had a duty to determine a person's eligibility to become president because he issues a "certificate of ascertainment," which lists the electors chosen, other candidates, number of votes received, and other information; and because he appoints members of Indiana's electoral college. They argued the governor didn't comply with this duty because Obama and McCain weren't eligible under the federal Constitution's clause that says no U.S. senator currently holding that office shall be appointed elector for any state. They also believed neither candidate was eligible for the office because they weren't "born naturally within any Article IV State of the 50 United States of America."

The Marion Superior Court granted the governor's motion to dismiss the suit under Indiana Trial Rule 12(B)(6).

"Initially, we note that the Plaintiffs do not cite to any authority recognizing that the Governor has a duty to determine the eligibility of a party's nominee for the presidency," wrote Judge Elaine Brown. "The Plaintiffs do not cite to authority, nor do they develop a cogent legal argument stating that a certificate of ascertainment has any relation to the eligibility of the candidates."

The plaintiffs argued because Obama and McCain were U.S. senators on Election Day, they were constitutionally ineligible to be appointed as presidential elector.

"The fact that the names 'Barack Obama' and 'John McCain' are the ones that appeared on the ballot does not change the fact that they were in fact candidates for the presidency, not any of Indiana's electors," she wrote.

The appellate court then used centuries-old caselaw to rule Obama is a "natural born citizen" as required to qualify to be president. Ankeny and Kruse complained that the senators weren't natural born citizens and the governor shouldn't have been able to issue any certificate of ascertainment. The Court of Appeals focused on Obama because the plaintiffs didn't develop a cogent legal argument pertaining to McCain. Ankeny and Kruse claimed because Obama's father was a citizen of the United Kingdom, he is constitutionally ineligible to be president.

Based on the language of Article II, Section 1, Clause 4 and the guidance provided in U.S. v. Wong Kim Ark, 169 U.S. 649, 18 S. Ct. 456 (1898), the Court of Appeals ruled that people born within the borders of the U.S. are "natural born citizens" for Article II, Section 1 purposes, regardless of the citizenship of their parents.

Judge Brown noted in a footnote that nothing in the opinion today should be understood to hold that being born within the 50 states is the only way one can receive natural born citizen status. She also noted that the 21st president, Chester A. Arthur, also was born of parents with different citizenships; his mother was a U.S. citizen and his father was Irish.

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  1. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  5. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

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