Georgia Administrative Law Judge Allows Case Challenging President Obama’s Qualification to Go Forward

That’s what seems to have happened in Farrar v. Obama (Ga. Office of State Admin. Hearings Jan. 3, 2012). Plaintiffs are arguing that President Obama should not be listed on the Georgia ballot because (1) “[e]very candidate for federal and state office who is certified by the state executive committee of a political party or who files a notice of candidacy shall meet the constitutional and statutory qualifications for holding the office being sought,” and (2) President Obama is not a natural-born citizen because his father was not a U.S. citizen at the time of the President’s birth. A Georgia statute expressly allows any eligible elector to challenge any candidate’s qualifications, and that’s what the plaintiffs are doing.

Similar challenges have generally been rejected on procedural grounds, such as on the grounds that plaintiffs lack standing to sue because they have no greater stake in the matter than any other citizen. Generally speaking, federal courts have concluded that in such cases where the plaintiff doesn’t have a particularized stake in the matter, the resolution even of constitutional controversies should be left to the political process and not to courts. But because this is filed under state law, state standing law governs, and many states do not impose the same standing requirements as federal courts do. So the judge in this case denied the President’s motion to dismiss. (You can read for yourself the President’s motion to dismiss, and the plaintiffs’ response.)

My view, though not as one who is an expert on the subject, is that the plaintiffs’ legal claims are not sound as a matter of the merits. First, “natural-born citizen” means, roughly, “citizen at birth”; citizens come in two kinds, natural-born and naturalized. Second, when the Fourteenth Amendment provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States,” that means that all persons born in the United States are natural-born citizens (setting aside those not “subject to the jurisdiction” of the United States, a very small category that may cover children of diplomats and the like, but surely doesn’t cover President Obama, who, like nearly everyone else in the U.S., was subject to its jurisdiction).

But it will be interesting to see to see what the Georgia legal system does with this. As best I can tell from a quick glance of the statute, the administrative law judge is supposed to make findings and report them to the Georgia Secretary of State; the Georgia Secretary of State will then make the decision, which can then be appealed to Georgia trial court and then from there on up through the Georgia appellate system. And, though I don’t know much about the Georgia legal system, I suppose that it’s possible that the administrative judge’s denial of the motion to dismiss could be reversed even before a judgment on the merits, for instance through some sort of mandamus procedure. I’d love to hear what those expert in Georgia administrative procedure, or Georgia election law, can say about this.