Case: 09-56827 10/27/2010 Page: 1 of 14 ID: 7525136 DktEntry: 29

Docket Nos. 09-56827 (L), 10-55084

In the

United States Court of Appeals

For the

Ninth Circuit

WILEY S. DRAKE and MARKHAM ROBINSON,

Plaintiffs-Appellants,

ALAN KEYES, Ph.D., Ambassador, et al.,

Plaintiffs,

v.

BARACK HUSSEIN OBAMA, et al.,

Defendants-Appellees.

_______________________________________
Appeal from a Decision of the United States District Court for the Central District of California,
No. 09-CV-00082 · Honorable David O. Carter

REPLY BRIEF OF APPELLANTS

GARY G. KREEP, ESQ.

CHRISTOPHER P. TUCKER, ESQ.
UNITED STATES JUSTICE FOUNDATION
932 D Street, Suite 2
Ramona, California 92065
(760) 788-6624 Telephone
(760) 788-6414 Facsimile
Attorneys for Appellants,
Wiley S. Drake and Markham Robinson

COUNSEL PRESS · (800) 3-APPEAL PRINTED ON RECYCLED PAPER

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

I. INTRODUCTION .......................................................................................... 1

II. STANDING .................................................................................................... 2

III. REDRESSABILITY ....................................................................................... 7

IV. POLITICAL QUESTION ............................................................................... 8

V. CONCLUSION ............................................................................................... 9

CERTIFICATE OF COMPLIANCE ....................................................................... 10

CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

FEDERAL CASES

Hollander v. McCain (2008) 566 F.Supp.2d 63 ................................................... 3, 4

Lujan v. Defenders of Wildlife (1992) 504 U.S. 555 ............................................. 2, 3

Williams v. Rhodes (1968) 393 U.S. 23 ..................................................................... 9

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I.

INTRODUCTION

This Appeal of the order granting Respondent Barack Obama’s

Motion to Dismiss is limited to the issues affecting Appellant’s Dr.

Wiley Drake (hereinafter referred to as “DRAKE”) and Markham

Robinson (hereinafter referred to as “ROBINSON”). . It is our

understanding that Dr. Taitz will be addressing the issues affecting her

clients in her Reply Brief.

This action was brought by, among others, Plaintiffs Dr. Wiley

Drake and Markham Robinson (hereinafter referred to as

“APPELLANTS”). Dr. Wiley Drake was the Vice Presidential

nominee for the American Independent Party in the 2008 Presidential

Election on the California ballot. Markham Robinson was the

Chairman of the American Independent Party and was a pledged

Presidential Elector for the American Independent Party in the 2008

Presidential Election for the California ballot. Dr. Taitz is

representing Plaintiff Dr. Alan Keyes (hereinafter referred to as

“KEYES”), herein, who was the Presidential nominee for the

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American Independent Party in the 2008 Presidential Election on the

California ballot.

II.

STANDING

Barack Hussein Obama (hereinafter referred to as “OBAMA”)

contends that APPELLANTS lack standing because “they cannot

demonstrate a particularized injury in fact traceable to Defendants’

conduct as would be necessary to establish standing.” (Appellees’

Answering Brief, page 12). To support this contention, OBAMA cited

Lujan v. Defenders of Wildlife, which states:

“We have consistently 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 v. Defenders of Wildlife (1992) 504 U.S. 555, 573.

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The Court in Lujan cited examples of generally available

grievances about government including: a suit challenging the

propriety of certain federal expenditures (Id. at 574); a suit

contending that Justice Black's appointment to this Court violated the

Ineligibility Clause (Id. at 574); a suit challenging the Government's

failure to disclose the expenditures of the Central Intelligence Agency

(Id. at 575); and a suit to block an execution on the basis of ‘the

public interest protections of the Eighth Amendment' (Id. at 577). The

Court explained that, in these examples, the plaintiffs were alleging

injuries that applied equally to the public at large. Unlike the

examples in the Lujan case, KEYES and DRAKE were running for

President and Vice President of the United States, respectively, and

were on the ballot in California. APPELLANTS did not suffer a

generalized injury that was no different than any suffered by the

public at large, and, instead, were harmed in that one of the

competitors for the office of President ran for that office without the

right to do so, thus denying APPELLANTS the right to compete fairly

in the election. (Hollander v. McCain (2008) 566 F.Supp.2d 63). As

APPELLANTS discussed in their opening brief, the Hollander v.

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McCain Court noted, “courts have held that a candidate or his political

party has standing to challenge the inclusion of an allegedly ineligible

rival on the ballot, on the theory that doing so hurts the candidate's or

party's own chances of prevailing in the election.” (Id. at 68).

APPELLANTS have reason to believe that OBAMA was, and is,

ineligible to serve in the office of President and his inclusion on the

ballot in California hurt APPELLANTS’ chance at prevailing in the

state, and, for that reason, APPELLANTS have standing in this

matter, and the granting of the motion to dismiss should be vacated.

OBAMA further argues that, if a candidate for a particular

office lacks the votes to win an election, the candidate cannot show

any injury if another candidate who won the election unlawfully ran

for the office (Appellees’ Answering Brief, page 12-13). This

argument would seem to indicate that, if a candidate for office lacks

any chance at prevailing, he or she has no interest in whether his or

her opponents are following the applicable election rules. The current

rules regarding Presidential elections allow for a candidate to run for

the office of President of the United States even if that candidate is

not on the ballot in other states. However, if such a candidate could

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never challenge the eligibility of a national candidate on the grounds

that this candidate could never win the office, does that mean that

third party candidates should never run for the office of President

because they could never challenge any improper action of the

national candidates? Does the law, therefore, provide opportunities

for, and encourage, majority party presidential candidates to skirt or

ignore election rules and since, according to APPELLANTS, third

party presidential challengers would never have standing to challenge

such violations of the rules on the grounds that no third party

candidate could ever hope to win enough votes? Such a result would

never be acceptable in the jurisprudence of this Court because such a

result would be unjust.

History is replete with third party candidates that while,

arguably, not on the ballot in enough state to win a majority of the

Electoral College votes, could impact, and have impacted, the

national Presidential election. One need only look at the Presidential

campaigns of H. Ross Perot and George Wallace to see the reality of a

Presidential election where neither of the major party candidates being

able to obtain a majority of the Electoral College votes. As Judge

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Carter pointed out, “The Court: Well, there's another part to your

argument that I really want to consider, and that is it would legitimize

the two party system to such an extent that independent parties would

never have an opportunity. In other words, the rise of Ross Perot for

instance, which did get a substantial amount of the American Vote.”

(Reporters Transcript, Volume II, Page 225, Lines 3-8).

Again, the injury suffered here by APPELLANTS is the denial

of right of all candidates to have a level playing field for the office

sought. This simply means that all candidates running for the office

must be eligible for the office, whether or not other candidates can

obtain enough votes to actually win the office. If the likelihood of

winning a particular office was the standard applied in order for a

candidate to compel his or her opponents to follow the rules, then all

actions against a potentially ineligible candidate would have to be

based on the latest polling data. If this Court were to adopt

OBAMA’S standard for standing in disputes over ineligible rivals, it

would lead to absurd and unjust results. For example, if an ineligible

rival dispute were to arise in a race like that of the South Carolina

Senate race between Alvin Greene and Jim DeMint, where Mr.
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Greene has consistently polled very low numbers, then, in such a

situation, Mr. Greene would be prevented from bringing an eligibility

challenge because he would be unlikely to show that he would prevail

if the suit were decided in his favor. As discussed above, a rival

candidate has standing to challenge an ineligible rival, and, for that

reason, the Court should vacate the dismissal in the court below, and

remand the case for further proceedings.

III.

REDRESSABILITY

APPELLANTS, contrary to APPELLEES’ contention, do not

seek a remedy requiring “’a do-over’ of the election” (Appellees’

Answering Brief, page 15), as the Constitution provides for a line of

succession in situations where the President is unable, or ineligible, to

continue performing the duties of the office.

As far as APPELLEES’ separation powers argument, if

OBAMA is, as APPELLANTS allege, ineligible for the office that he

now holds, then he cannot claim a separation of powers protection

against any action taken by this Court, because he never lawfully

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became President, and is, therefore, not a part of any branch of the

federal government.

Further, this is not a matter that is subject only to the

impeachment power of Congress, because impeachment applies to

removing only those Presidents who were eligible for the office and

validly elected. If OBAMA was never eligible to serve in the Office

of the President, then he cannot be impeached, as he legally has never

been President.

Additionally, this matter is not whether OBAMA committed an

impeachable offense while in office, although that may be true, or

whether he subsequently became ineligible for the office, but that

OBAMA was ineligible before he was elected and, therefore, is

unconstitutionally holding the office of President.

IV.

POLITICAL QUESTION

In attempting to frame this case as a non- judicable political

question, APPELLEES rely on the historical purpose of the Electoral

College, which was “to permit the most knowledgeable members of

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the community to choose the executive of a nation (Appellees’

Answering Brief, page 18, citing Williams v. Rhodes (1968) 393 U.S.

23, 43). Contrary to APPELLEES’ contention, this original purpose

is no longer how the Electoral College operates, as the Electors’

discretion as to whom to cast a vote for has been, in at least half of the

States, taken away by state statute. Electors now, essentially, perform

a ministerial function and are compelled to cast their votes in a

particular way or face criminal and/or civil sanctions under various

state laws. Since Electors cannot vote in variance to the popular vote

in the majority of their respective states, the Electoral College has no

authority to render any decision as to the eligibility of a candidate and

is, therefore, not a proper forum for deciding a dispute over the

qualifications of a candidate for United States President.

V.

CONCLUSION

Based on the forgoing, APPELLANTS respectfully request that

this Court reverse the District Court’s order granting

RESPONDENTS’ Motion to Dismiss regarding APPELLANTS

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Drake and Robinson. APPELLANTS also respectfully request that the

Court remand the action for further proceedings in order to determine

whether OBAMA fulfills the United States Constitution’s

requirements for eligibility for the Office of President of the United

States.

Dated: October 27, 2010 Respectfully submitted,

s/ Gary G. Kreep
Gary G. Kreep
Christopher P. Tucker
UNITED STATES JUSTICE
FOUNDATION

Attorneys for Appellants,

Wiley S. Drake and
Markham Robinson

CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the type-volume limitation

set forth in Rule 32(a)(7)(B) of the Federal Rules of Appellate

Procedure. This brief uses a proportional typeface and 14-point font,

and contains 1,647 words.

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CERTIFICATE OF SERVICE

I hereby certify that on October 27, 2010 , I electronically filed the

foregoing with the Clerk of the Court for the United States Court of Appeals

for the Ninth Circuit by using the appellate CM/ECF system.

I certify that all participants in the case are registered CM/ECF users

and that service will be accomplished by the appellate CM/ECF system.

s/ Chris Avery