Keyes V Bowen Memorandum Points Authorities Support Obama Demurrer

1 MICHAEL J. STRUMWASSER (CA BAR No.
58413)
FREDRIC D. WOOCHER (CA BAR No. 96689) Cote §6103
2 AIMEE DUDOVITZ (CA BARNo. 203914)
STRUMWASSER & WOOCHER LLP
3 10940 Wilshire Boulevard, Suite 2000
Los Angeles, California 90024
4 Telephone: (310)576-1233
Facsimile: (310)319-0156
5
Attorneys for Respondents President Barack Obama, Vice President Joe Biden, Jaime Alvarado,
6 William Ayer, Joe Baca, Jr., Jan Blue, Roberta Brooks, Nathan Brostrom, Mark Cibula, Robert
Conaway, Ray Cordova, Lawrence DuBois, James Farley, John Freidenrich, Mark Friedman,
7 Bobby Closer, Audrey Gordon, flene Haber, Robert "Bob " Handy, Mary Hubert, Aleita
Huguenin, Richard Hundrieser, Fred Jackson, Patrick Kahler, Mary Keadle, LeRoy King, Vinz
8 Koller, Mark Macarro, Alma Marquez, Ana Delgado Mascarenas, Betty McMillion, Michael
McNerney, Gwen Moore, Jeremy Nishihara, Gregory Olzack, Nancy Parrish, Lou Paulson, Joe
9 Perez, Anthony Rendon, Frank Salazar, David Sanchez, Larry Sheingold, Lane Sherman,
Stephen Smith, Juadina Stallings, Kenneth Sulzer, Aaruni Thakur, Norma Torres, Silissa
10 Uriarte-Smith, Sid Voorakkara, Greg Warner, Karen Waters, Sanford Weiner, Gregory
Willenborg, Kelley Willis, James Yedor, and Christine Young
11
ROBERT F. BAUER (WDC BARNo. 938902) (Pro Hoc Vice pending)
12 607 Fourteenth Street, N.W.
Washington, D.C. 20005
13 Telephone: (202) 628-6600
Facsimile: (202) 434-1690
14 Attorney for Respondents President Barack Obama and Vice President Joe Biden
15
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
16
17 FOR THE COUNTY OF SACRAMENTO
Y
18 Case No. 34-2008-80000096-CU-WM-GDS
AMBASSADOR DR. ALAN KEYES, et al.,
19 MEMORANDUM OF POINTS AND
20 Petitioners, AUTHORITIES IN SUPPORT OF
DEMURRER OF PRESIDENT
21 BARACK OBAMA, VICE PRESIDENT
v. JOE BIDEN, AND CALIFORNIA
22 ELECTORS TO PETITIONERS' FIRST
CALIFORNIA SECRETARY OF STATE AMENDED PETITION FOR WRIT OF
23 DEBRA BOWEN, et al., MANDATE
24 Hearing Date: March 13,2009

Respondents. Time: 9:00 a,m.
25 Dept.: 31
Judge: Hon. Michael P. Kenny
26 Action Filed: November 13, 2008
27
28
Printed on Recycled Paper

MEMO OF POINTS & AUTHORITIES ISO DEMURRER TO FIRST AMENDED PETITION FOR WRIT OF MANDATE
A
CONTENTS
INTRODUCTION 1
STATEMENT OF THE CASE 1
ARGUMENT 4
I. Because the Amended Petition Does Not and Cannot State a Cause of Action
Against Any Respondent, It Should Be Dismissed in Its Entirety Without Leave to
Amend 4
7
A. The Amended Petition Does Not and Cannot State a Cause of Action
Against President Obama or Vice President Biden 5
B. The Amended Petition Does Not and Cannot State a Cause of Action
Against the California Electors 5
1. The California Electors Have No Judicially-Enforceable Duty to
Conduct an Investigation of a Presidential Candidate's
Qualifications for Office 5
2. Petitioners' "Haber"-"Huber" Argument Is False and Frivolous 7
C. The Amended Petition Does Not and Cannot State a Cause of Action
Against the Secretary of State 9
II. State Courts Have No Jurisdiction over the Qualifications of the President or Vice
17 Unripe 12
18 CONCLUSION 15
19
20
21
22
23
24
25
26
27
28
TABLE OF AUTHORITIES
Federal Cases
Berg v. Obama, 574 F. Supp. 2d 509 (E.D. Penn. 2008) 3
Cohen v. Obama, 2008 WL 5191864 (D.D.C.) 3
Donofrio v. Wells, 129 S. Ct. 752 (2008) 3
Hollander v. McCain, 566 F. Supp. 2d 63 (D.N.H. 2008) 3
Kokkonenv. Guardian Life Ins. Co., 511 U.S. 375 (1994) 11
Morgan v. United States, 801 F.2d 445 (D.C. Cir. 1986) 11
Rayv. Blair, 343 U.S. 214 (1952) 7
Robinson v. Bowen, 567 F. Supp. 2d 1144 (N.D. Cal. 2008) 3
Roudebush v. Hartke, 405 U.S. 15 (1972) 11
Roy v. Fed. Election, 2008 WL 4921263 (W.D. Wash. 2008) 3
Stamper v. United States, 2008 WL 4838073 (N.D. Ohio 2008) 3
State Cases
Am. Fed. of State, County and Mun. Employees v. Metro. Water Dist.,
19
Brandt v. Bd. of Supervisors ofMadera County, 84 Cal. App. 3d 598 (1978) 14
20
California Water & Tel. Co. v. County of Los Angeles, 253 Cal. App. 2d 16 (1967) 14
21
Campbell v. Super. Ct., 126 Cal. App. 652 (1932) 12, 13
22
Chase v. Brooks, 187 Cal. App. 3d 657 (1986) 12
23
City of Santa Monica v. Stewart, 126 Cal. App. 4th 43 (2005) 14
24
Constitution Party v. Lingle, 2008 WL 5125984 (2008 Hawai'i) 3
25
Del E. Webb Corp. v. Structural Materials Co., 123 Cal. App. 3d 593 (1981) 4
26
Golden Gate Bridge Dist. v. Felt, 214 Cal. 308 (1931) 14
27
In re John McCain's Ineligibility to be on Presidential Primary Ballot in PA,
28 944 A.2d 75 (Pa. 2008) 3
Lanahan v. City of Los Angeles, 14 Cal. 2d 128 (1939) 12
long v. Hultberg, 27 Cal. App. 3d 606 (1972) 12
Lungren v. Deukmejian, 45 Cal. 3d 727 (1988) 14
Mapsteadv. Anchundo, 63 Cal. App. 4th 246 (1998) 12
McCabe v. Snyder, 75 Cal. App. 4th 337 (1999) 4
PG&E Corp. v. Pub. Wife. Com/w'n, 118 Cal. App. 4th 1174 (2004) 14
Pac. Legal Found v. Coastal Comm 'n, 33 Cal. 3d 158 (1982) 13
People ex rel. Lynch v. Super. Ct., 1 Cal. 3d 910 (1970) 13
Routh v. Quinn, 20 Cal. 2d 488 (1942) 4
10 San Diego Cotton Club v. State Bd. of Equalization, 139 Cal. App. 655 (1934) 5
Sanctity of Human Life Network v. California Highway Patrol,
'ids Cal. App'4th 858 (2003) ." 7....' '. 14,15
12
Selby Realty Co. v. City of San Buenaventura, 10 Cal. 3d 110 (1973) 13
13
Sisemore v. Master Fin., Inc., 151 Cal. App. 4th 1386 (2007) 4
14
Valdes v. Cory, 139 Cal. App. 3d 773 (1983) 7
Visnich v. Sacramento County Bd. ofEduc., 37 Cal. App. 3d 684 (1974) 11
16
Wilson v. Los Angeles County Civil Serv. Comm 'n, 112 Cal. App. 2d 450 (1952) 12
17
Wrotnowski v. Bysiewicz, 958 A.2d 709 (Conn. 2008) 3
18
Zelig v. County of Los Angeles, 27 Cal. 4th 1112 (2002) 11
19
Docketed Cases
20
Lightfoot v. Bowen, Supreme Court Case No., SI68690 (Cal. 2008) 3
21
Marquis v. Reed, Superior Court Case No. 08-2-34955 (Wash. 2008) 3
22
Martin v. Lingle, Supreme Court Case No. 08-1-2147 (Hawai'i Oct. 22, 2008) 3
23
Federal Statutes
24
U.S. Const.
25
art. I, § 2 11
26
art. II, § 3.5 7
27
28
111
1 U.S.C. tit. 3,
2 §1-21 6
3 §7 10
4 §8 5, 6
5 §§9-11 10
6 62 Stat. 674 (1947) 6
7 122 Stat. 4846 (2008) 10
S State Statutes
9 Cal. Civ. Proc. Code
10 § 389 7
11 § 430.10(d) 7
12 § 803 ' 11
13 § 1085 4
14 Cal. Elec. Code
15 § 6041 9
16 § 6901 8, 9
17 § 6905 3
18 § 6906 6
19 § 7100 8
20 § 15505 8
21 Miscellaneous
22 155 Cong. Rec. H76 (daily ed. Jan. 8,2009) 10
23 3 Witkin, Cal. Proc. 5th, Actions, § 32 (5th ed. 2008) 12
24
25
26
27
28
IV
INTRODUCTION
Nine days after the 2008 general election, a losing candidate for President of the United
States, his running mate, and one of their California Electors petitioned for a writ of mandate to
enjoin the California Secretary of State and California's members of the Electoral College from
implementing the voters' choice to give California's fifty-five electoral votes to President Barack
Obama and Vice President Joe Biden. Petitioners base their action on doubts they have as to whether
President Obama is a "natural born citizen" eligible to be President — not on any affirmative
assertion that he is not eligible, but rather on questions that they have and that they say must be
answered before the Secretary of State and California Electors may carry out their official duties.
10 In fact, President Obama is, of course, a "natural born citizen," born in the United States to
11 a mother who was an American citizen. However, that fact is immaterial to the proper disposition
12 of this case, which can and must be dismissed because, as a matter of law, there is no obligation on
13 the part of any Respondent to perform any of the duties Petitioners assert, because the Court lacks
14 jurisdiction over Petitioners' claims, and because the action is moot — and remains so after the
15 Petition was amended to fabricate an alleged non-moot cause of action.
16 STATEMENT OF THE CASE
17 Petitioners Ambassador Dr. Alan Keyes, Dr. Wiley S. Drake, Sr., and Markham Robinson
18 (collectively, "Petitioners") filed their Petition for Writ of Mandate ("Petition" or "Pet.") on
19 November 13,2008, nine days after the November 4, 2008 general election. They allege that they
20 were, respectively, the 2008 Presidential Candidate, the Vice Presidential Candidate, and a Certified
21 California Elector of the American Independent Party. (Pet. 1ft 1 -3; First Amended Petition ("FAP")
22 TITf 1-3.) It names as Respondents Secretary of State Debra Bowen and all fifty-five of California's
23 Democratic Party Electors (collectively, "California Electors"), as well as now-President Barack
24 Obama and Vice President Joe Biden. The FAP alleges that over twenty actions have been filed
25 questioning whether the President is a "natural born citizen" under Article II, Section I, Clause 4 of
26 the United States Constitution. (FAP | 69.) According to Petitioners, these lawsuits suggest
27 variously that although President Obama was born a United States citizen he somehow lost this
28 status by subsequently obtaining citizenship in Indonesia, or alternatively that he was actually born
1
in Kenya and is therefore either a Kenyan or British citizen. (E.g., id. lfl| 81-85.) The FAP alleges
that "[i]n the course of those lawsuits, most of which have been dismissed, it has been determined
that there exists no designated official in the federal government directly charged with the
responsibility of determining whether any Presidential candidate meets the qualifications of Article
H of the Constitution of the United States." (Id. H 74.) The FAP then avers — without citation to
any legal authority — that "[b]ased on all of the above [allegations], it is the duty of [the Secretary
of State] to obtain proper documentation of OBAMA's citizenship ... to confirm his eligibility" to
serve as President. (Id. ^ 86.) It also claims that each California Elector has "an affirmative duty
to discover whether the candidate for President for which the elector is seeking election is a 'natural
10 born' citizen." (Id. 1J 72.)
11 The FAP does not claim that either the President or the Vice President has failed to perform
12 any mandatory duties under either state or federal law. Indeed, the FAP seeks no relief as to either.
13 Instead, Petitioners assert — again without authority — that "it is the duty of the SOS to obtain
14 proper documentation of OBAMA's citizenship, and every other candidate for President on the
15 California Ballot, to confirm the candidate's eligibility for the office of the President of the United
16 States." (Id. ^ 86.) It seeks an order "barring the [Secretary of State] from both certifying to the
17 Governor the names of the California Electors, and from transmitting to each Presidential Elector
V
18 a Certificate of Election, until such documentary proof is produced and verified" and "barring the
19 California Electors from signing the Certificate of Vote until such documentary proof is produced
20 and verified." (Id. If 70.) Petitioners believe that if the requested relief is denied, "[a]n
21 unprecedented and looming constitutional crisis awaits." (Id. ^ 77.)
22 All Respondents either demurred to the Petition or moved for judgment on the pleadings.
23 They pointed out that the Petition failed to allege a cause of action against any Respondent because
24 it failed to identify any legal duty any Respondent actually had, and that all of the Respondents had
25 completed all of the challenged actions, rendering the lawsuit moot.
26 Rather than defending against the Demurrers, Petitioners have filed the FAP, which repeats
27 verbatim nearly all the factual allegations of the prior pleading, does not appear even to attempt to
28 address the absence of any legal duties upon which to premise a writ of mandate, but attempts to
avoid obvious mootness by contriving an ongoing dispute and seeking a writ barring the Secretary
of State and "future California Electors" from doing what it claims they have done. (FAP, Prayer
If 2.) The FAP still does not seek any relief as to the now-President or Vice President, but it does
repeat demands that the Court bar the other Respondents from performing various acts they
completed last year.1
The FAP adds a new allegation, asserting that Representative Howard Berman designated
"Ilene Huber" as the Elector for the 28th Congressional District while an "Ilene Haber" actually
voted as the Elector. Petitioners assert that there is no voter in California with the name "Ilene
Huber." (FAP f 79.) Petitioners then allege that the Electors allowed Ms. Haber to vote without
10 "electing]" her to fill the vacancy of the non-existent Ms. Huber and thereby violated, Petitioners
11 reason, California Elections Code section 6905. (FAP f 79.)
12
13
14
'As noted in the FAP, lawsuits have been filed in various courts claiming that President
15 Obama or Senator John McCain is not a "natural born citizen." (Id. If 74.) Petitioners themselves
note that most of those cases have already been dismissed. (Id.) The United States Supreme Court
16 has rejected petitions for certiorari or stay requests in all four cases that it has been asked to review.
I- Donofrio
Donofrio v. Wells, 129 S. Ct. 752 (2008) (rejecting request for order requiring Secretary of State Sta to
investigate citizenship status of Obama and McCain); Wrotnowski v. Bysiewicz, 958 A.2d 709,
(Conn. 2008), stay app. denied, — S. Ct.—, 2008 WL 5204525 (U.S. Conn. Dec. 15, 2008) (No.
18 08A469) (dismissing case regarding Obama for lack of statutory standing and subject matter
jurisdiction); Lightfoot v. Bowen, Supreme Court Case No. SI68690 (Cal. 2008) (original
19 proceeding), stay app. denied, — S. Ct.—, 2009 WL 160628 (U.S.) (denying Petition for Writ of
Mandate/Prohibition and Stay regarding Obama); Berg v. Obama, 574 F. Supp. 2d 509, 530 (E.D.
20 Penn. 2008), stay app. twice denied, U.S. Supreme Court Case No. 08-570 (dismissing suit regarding
Obama on several grounds including standing, lack of jurisdiction, and failure to state a claim).
21
For a sampling of the other cases, see, e.g., Hollander v. McCain, 566 F. Supp. 2d 63, 71
22 (D.N.H. 2008) (dismissing suit regarding McCain on standing grounds); Roy v. Fed. Election, 2008
WL 4921263 (W.D. Wash. 2008) (dismissing suit regarding Obama and McCain for failure to state
23 a claim); Stamper y. United States, 2008 WL 4838073 (N.D. Ohio 2008) (dismissing suit regarding
24 Obama and McCain for lack of jurisdiction); Robinson v. Bowen, 567 F. Supp. 2d 1144,1147 (N.D.
Cal. 2008) (dismissing suit regarding McCain for lack of standing and lack of a state court remedy);
Cohen v. Obama, 2008 WL 5191864 (D.D.C.) (dismissing suit regarding Obama on standing
25 grounds); Constitution Party v. Lingle, 2008 WL 5_ 125984 (2008 Hawai'i) (unpublished) (dismissing
26 "
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z/
IneligibUity to be on Presidential Primary Ballot in PA., 944 A.2d 75 (Pa. 2008) (denying
9R application for issuance of subpoena); Marquis v. Reed, Superior Court Case No. 08-2-34955 SEA
(Wash. Oct. 27, 2008) (dismissing suit regarding Obama).
ARGUMENT
Respondents vigorously dispute the substantive allegations in Petitioners' pleadings and
categorically deny Petitioners' intimations that President Obama is not a natural born citizen. But
for purposes of this Demurrer, Respondents are obligated by the well-established rules of pleading
to treat Petitioners' factual allegations, for these limited purposes, as true — "however improbable
they may be." Sisemorev. Master Fin., Inc., 151 Cal. App. 4th 1386,13 97 (2007) (quoting Del E.
Webb Corp. v. Structural Materials Co., 123 Cal. App. 3d 593,604 (1981)). Indulging Petitioners
this presumption, it is clear that they nevertheless have not and cannot state a cause of action, and
that this Demurrer must therefore be sustained without leave to amend. Blank v. Kirwan, 39 Cal.
10 3d 311, 318 (1985) (demurrer should be sustained when complaint fails to state facts sufficient to
11 constitute a cause of action); Routh v. Quinn, 20 Cal. 2d. 488,493 (1942) (amendment would serve
12 no useful purpose where absence of legal duty is clear as a matter of law).
13 I. Because the Amended Petition Does Not and Cannot State a Cause of Action Against
Any Respondent, It Should Be Dismissed in Its Entirety Without Leave to Amend.
14
A writ of mandate lies only to compel the performance of a clear, present, and ministerial
15
duty. See Cal. Civ. Proc. Code § 1085 (West 2008); Balasubramanian v. San Diego Cmty. Coll.
16
Dist., 80 Cal. App. 4th 977,990 (2000) (upholding denial of writ where defendant school district had
17
no mandatory duty to re-classify plaintiff as academic contract employee); McCabe v. Snyder, 75
18
Cal. App. 4th 337,340 (1999) (upholding denial of writ where Department of Motor Vehicles had
19
no mandatory duty to disclose names and addresses of smog impact fee payees).
20
Petitioners cite no California law that imposes any duty on a political party's Presidential or
21
Vice Presidential candidate to provide proof of qualifications to the Secretary of State. Nor does the
22
FAP cite any law imposing a duty on California Electors to review their candidate's eligibility. In
23
fact, the California Electors had no discretion whatsoever — they were required by the state
24
Elections Code to vote for their party's candidates. Finally, the FAP does not allege any statutory
25
basis for a legal duty of the Secretary of State to demand proof of natural born citizenship from the
26
parties' presidential nominees. Because these pleading failures cannot be cured by amendment, this
27
Demurrer should be sustained without leave to amend.
28
MEMO OF POINTS & AUTHORITIES ISO DEMURRER TO FIRST AMENDED PETITION FOR WRIT OFMANDATE
1 A. The Amended Petition Does Not and Cannot State a Cause of
Action Against President Obama or Vice President Biden.
2
Although President Obama and Vice President Biden are named as Respondents, the FAP
3
nowhere seeks any relief as to either. Rather, it prays only for a writ to enjoin Secretary Bowen,
4
Respondent California Electors, and "future California Electors" from performing a variety of
5
ministerial tasks. In light of the absence of any prayer for relief directed to the President or the Vice
6
President, it should come as no surprise that the FAP also does not allege that they have failed to
7
discharge any mandatory duty. The FAP contains only two oblique assertions of presidential or
8
candidate duties, each unadorned by citation of legal authority. (FAP ffl[ 63 ("OBAMA has failed
9
to demonstrate that he is a 'natural born' citizen."), 68 ("It is incumbent on the candidates to present
10
the necessary documentation confirming his or her eligibility, but, to date, for this past election,
11
OBAMA has failed to do so.").) This is plainly insufficient to satisfy even the most basic pleading
12
standards for obtaining a writ of mandate. San Diego Cotton Club v. State Ed. of Equalization, 139
13
Cal. App. 655, 658 (1934) ("To furnish any basis for the relief sought the petition for a writ of
14
mandate must show on its face that the respondents are under some duty to do what the petition asks
15
that they be required to do.").
16
Respondents pointed out this fundamental deficiency in the original Petition. Nothing in the
17
FAP appears even to attempt to cure the deficiency.
18
Because the FAP fails to show any duty on the part of President Obama or Vice President
19
Biden, it should be dismissed as to both.
20
B. The Amended Petition Does Not and Cannot State a Cause of Action Against the
21 California Electors.
22 1. The California Electors Have No Judicially-Enforceable Duty to
Conduct an Investigation of a Presidential Candidate's Qualifications
23 for Office.
24 The FAP cites as a statutory basis for the claimed duty on the part of the fifty-five California
25 Electors, Section 8 of Title 3 of the United States Code, which provides in full: "The electors shall
26 vote for President and Vice President, respectively, in the manner directed by the Constitution." 3
27 U.S.C. § 8 (2008). Petitioners assert that "[t]his federal statute confers upon each elector an
28 affirmative duty to discover whether the candidate for President for which the elector is seeking
election is a 'natural born' citizen." (FAP ^f 72.) Petitioners' theory finds no support in either federal
or state law.
Petitioners apparently read Section 8 of Title 3 of the United States Code to impose on all
electors nationwide an "affirmative duty" to examine the citizenship status of presidential candidates
and to refuse to cast their vote for any candidate who fails to satisfy some undefined burden of proof.
The statute has never been read to impose such a requirement, and its text and history compel no
such conclusion. The statement that "[t]he electors shall vote ... in the manner directed by the
Constitution," 3 U.S.C. § 8, is by its terms a reference to the mechanics of casting the votes, not the
manner in which electors may decide (or be compelled) to cast a vote for one or another candidate.
10 There are only two provisions of the Constitution that refer to the manner in which electors are to
11 vote. Article II, Section 3 specifies where electors are to meet and how their ballots are to be cast,
12 transmitted to the President of the Senate, and counted. And the Twelfth Amendment, proposed by
13 the Eighth Congress in 1803 following the Jefferson-Burr Electoral College tie in 1800, superseded
14 Article II, Section 3 by providing for separate designation of votes for President and Vice President.
15 Sections 1 through 21 of Title 3 of the U.S. Code were enacted in 1947, 62 Stat 674, with this
16 history in mind. Indeed, Section 8, on which Petitioners rely, refers explicitly to the electors voting
17 for President and Vice President "respectively," an apparent reference to this history. No provision
18 of the Constitution suggests any procedure by which the electors are required to conduct an
19 investigation into the subject of their votes or to "discover whether the candidate for President... is
20 a 'natural born' citizen." (FAP \ 72.)
21 On the contrary, California Electors have no discretion whatsoever. California, like many
22 other states,2 requires its electors to vote for their party's nominee. Cal. Elec. Code § 6906 (West
23 2008) ("The electors ... shall vote by ballot for that person for President and that person for Vice
24 President of the United States, who are, respectively, the candidates of the political party which they
25
26 2
At least twenty-four other states, as well as the District of Columbia, bind electors via either
state law or political party pledges, or both, to vote for a particular candidate. National Archives and
27 Records Administration, Federal Register, U.S. Electoral College, What is the Electoral College?
State Laws and Requirements, http://www.archives.gov/federal-register/electoral-college/laws.html
28 (last visited Dec. 31,2008).
represent..."); cf. Ray v. Blair, 343 U.S. 214, 231 (1952) (affirming constitutionality of political
party rule requiring electors to support party candidate). The state statute is binding on the California
Electors, even were they to believe they have a different duty under federal law. Cal. Const, art. HI,
4 § 3.5 (providing that administrative officials have "no power... to refuse to enforce a statute on the
basis that federal law... prohibits] enforcement of such statute unless an appellate court has made
[such] a determination"); Valdes v. Cory, 139 Cal. App. 3d 773,780 (1983) (granting extraordinary
review of state statute because state officials were "under a constitutional duty to comply with"
disputed state statute). Accordingly, there was no legal basis on which to bar (or even to excuse) the
California Electors from performing their legal duty on December 15, 2008, by "signing the
10 Certificate of the Vote" (Pet. J 69).
11 Respondents' Demurrer pointed out this absence of a duty in the Electors. Nothing in the
12 FAP appears even to try to buttress Petitioners' arguments. However, to evade mootness, Petitioners
13 have added allegations seeking a writ ordering/ttfw/-e Electors to withhold then- votes until future
14 candidates produce "documentary proof of natural-bom citizenship. This writ, of course, would
15 not lie against these Respondents, and future Electors are not before the Court, their identities being
16 unknown. As the future officials against whom relief is presently sought, they are indispensable
17 parties, Cal. Civ. Proc. Code § 389, whose absence is an additional ground to sustain this Demurrer
18 without leave to amend, Cal. Civ. Proc. Code § 430.10(d).
19 2. Petitioners' "Haber"-"Huber" Argument Is False and Frivolous.
20 Petitioners add to their FAP the allegation that Representative Berrnan designated as the
21 Elector for the 28th Congressional District a deceased resident of Humbolt County named "Ilene
22 Huber," and that for "Ilene Haber," an undisputedly qualified Elector, to vote it was necessary, under
23 Elections Code section 6905, for the other Electors to "elect" her a "replacement" for the deceased
24 Ms. Huber. (FAP ^| 79.) They also allege that the designation was not made by
25 Representative Berrnan but by an official of the California Democratic Party ("CDP"). (Id.)
26 Petitioners are wrong in every respect.
27 In reality, of course, Ilene Haber was designated not by CDP official Chris Meyer (id.) but
28 by Representative Berrnan, on a form appearing in the judicially-noticeable Exhibit E to Request of
President Barack Obama et al. for Judicial Notice in Support of Demurrer to Petitioners' First
Amended Petition for Writ of Mandate ("RJN").3 As it shows, the designation, signed by the
Congressman, contains Ms. Haber's name, correctly spelled, together with other information
regarding her identity and eligibility, such as her address. Mr. Meyer may have mistyped her name
in a transmission to the Secretary of State, but the designation was plainly made, and made correctly,
by Representative Herman. (Id) There was no vacancy, no substitution. The argument is frivolous.
The notion that the designations may not be transmitted through the CDP is as frivolous as
the attempt to make a mountain out of a typo. Contrary to Petitioners' assertion, California Elections
Code section 7100 does not say that each person who nominates an Elector "is to file their
10 designation of their nominee with" the Secretary of State. (FAP ^ 79.) Rather, the statute says that
11 each nominator "shall file [the nominee's] name, residence and business address with the Secretary
12 of State." Cal. Elec. Code § 7100 (West 2008). In other words, the statute requires that the
13 nominating information be provided to the Secretary of State, not the nominating document itself,
14 as Petitioners would have it. Nor, as Petitioners would have it, is the CDP properly a stranger to this
15 process. On the contrary, the Elections Code specifically contemplates that the "political party, in
16 accordance with Section 7100,... submits to the Secretary of State its certified list of nominees."
17 Cal. Elect. Code § 6901 (West 2008). Thus, as shown in the case of Ms. Haber, the nominators
18 discharged their duty by sending the CDP their designation and relying on it to file that information
19
3
Pursuant to California Evidence Code section 452, Respondents President Obama, Vice
20 President Biden and California ia's Electors seek judicial notice of the following five documents: (1)
a copy of California Secretary of State Debra Bowen's December 1,2008 Certification to Governor
21 Arnold Schwarzenegger, pursuant to California Elections Code section 15505, stating that "the
Democratic candidates for Electors of President and Vice President received the highest number of
22 votes" and that "said Democratic candidates were fifty-five (55) in number," and attaching the list
of said Electors (RJN Exhibit A); (2) a copy of a portion of the "Statement of Vote" from Secretary
23 Bowen for the November 4, 2008 general election, which states on page 15 that Secretary Bowen
certified the election results on December 13, 2008, and includes on pages 16-22 the California
24 election results for President of the United States (RJN Exhibit B); (3) a copy of the "Certificate of
Ascertainment," a Proclamation by the Governor of the State of California, in accordance with
25 Section 6 of Title 3 of the United States Code, which is dated December 15,2008 (RJN Exhibit C);
(4) a copy of the "Certificate of Vote" from the State of California, in accordance with Section 9 of
26 Title 3 of the United States Code, and which is dated December 15, 2008, as required by Section 7
of Title 3 of the United States Code (RJN Exhibit D); and (5) a copy of the "2008 Elector
27 Appointment Form" from Representative Howard L. Berman, by which Representative Berman
designated Ilene Haber as a 2008 Presidential Elector for California in accordance with sections 6901
28 and 7100 of the California Elections Code (RJN Exhibit E).
8
with the Secretary of State. It comes as no surprise that the Legislature contemplated not that fifty-
five nominators would each personally deliver to Secretary Bowen his or her designation but rather
that postmen, electronic wires, office assistants, and, yes, political parties would inevitably and
properly be involved.
5 C. The Amended Petition Does Not and Cannot State a Cause of
Action Against the Secretary of State.
6
The Secretary of State's responsibilities are stated in California Elections Code Section
7
6901, which provides in full:
8
Whenever a political parry, in accordance with Section 7100, 7300, 7578, or 7843,
9 submits to the Secretary of State its certified list of nominees for electors of President
and Vice President of the United States, the Secretary of State shall notify each
10 candidate for elector of his or her nomination by the party. The Secretary of State
shall cause the names of the candidates for President and Vice President of the
11 several political parties to be placed upon the ballot for the ensuing general election.
12 Her duty thus is simply to place on the ballot the names of the candidates submitted to her by a
13 recognized political party—in the case of the Democratic Party, the names submitted in accordance
14 with section 7100 of the California Elections Code. She has no discretion to overrule the party's
15 selection of a presidential candidate. Nor should she. The presidential nominating process cannot
16 be made subject to each of the fifty states' election officials independently determining whether a
17 nominee is qualified.
18 It may be the case that the Secretary of State has some discretion in placing a name on the
19 primary election ballot. That placement is governed by California Elections Code section 6041,
20 which authorizes the Secretary of State to determine whether or not to include a potential candidate.
21 See Cal. Elec. Code § 6041 (West 2008) ("The Secretary of State shall place the name of a candidate
22 upon the presidential primary ballot when he or she has determined that the candidate is generally
23 advocated for or recognized throughout the United States or California as actively seeking the
24 nomination of the Democratic Party for President of the United States."). But no such discretion
25 exists for the general election. To the contrary, California Elections Code section 6901, which is
26 quoted above, mandates that the Secretary of State place the names selected by the political parties
27 on the general election ballot. The differences between sections 6041 and 6901 make it clear that
28 the Secretary of State has no discretion to refrain from placing a party's nominee on the general
1 election ballot. Her mandatory duty was to place the name of Barack Obama on the ballot.
2 Again, these infirmities in the original Petition were cited in Respondents' Demurrer.
3 Petitioners have done nothing in the FAP to cure them.
4 II. State Courts Have No Jurisdiction over the Qualifications of the President or
Vice President
5
State courts have no jurisdiction over any aspect of the process into which Petitioners seek
6
to inject this Court. Federal law establishes the procedure for election of the President and Vice
7
President and provides the exclusive means for challenges to their qualifications. It specifies that
8
the electors shall meet on the first Monday after the second Wednesday in December, 3 U.S.C. § 7,
9
for their votes to be certified and transmitted to the President of the Senate, 3 U.S.C. §§9-11, who
10
receives and causes the votes to be counted before ajoint session of Congress on January 8,3 U.S.C.
11
§ 15, as modified by Pub. L. No. 110-430, § 2,122 Stat. 4846 (2008).
12
[Tlhe votes having been ascertained and counted..., the result of the same shall be
13 delivered to the President of the Senate, who shall thereupon announce the state of
the vote, which announcement shall be deemed a sufficient declaration of the
14 persons, if any, elected President and Vice President of the United States,... Upon
such reading of any such certificate or paper, the President of the Senate shall call for
15 objections, if any. Every objection shall be made in writing, and shall state clearly
and concisely, and without argument, the ground thereof, and shall be signed by at
16 least one Senator and one Member of the House of Representatives before the same
shall be received. When all objections so made to any vote or paper from a State shall
17 have been received and read, the Senate shall thereupon withdraw, and such
objections shall be submitted to the Senate for its decision; and the Speaker of the
18 House of Representatives shall, in like manner, submit such objections to the House
of Representatives for its decision;...
19
Id. (emphasis added). Of course, on January 8, 2009, the then-Vice President made the requisite
20
declaration of the election of Barack Obama and Joe Biden as President and Vice President. 155
21
Cong. Rec. H76 (daily ed. Jan. 8, 2009). That was "deemed a sufficient declaration" of their
22
election, in the absence of objections filed by members of the Senate and House of Representatives,
23
which would have been be resolved by those bodies. There being no such objections, the President
24
and Vice President were duly inaugurated. (FAP 163.)
26
27
28
10
By its terms, this is the exclusive means to resolve objections to the electors' selection of a
President or Vice President, including the species of objections raised by these Petitioners. Even
federal courts have no role in this process. Plainly state courts have none.
To the extent a contrary theory can be discerned from Petitioners' papers, it appears to be
their belief that their arguments are so important that the Court must have jurisdiction to hear them.
(FAP Iffl 68, 77 (forecasting a "constitutional crisis" if this Court does not act).) However, a
petitioner's urgent pleas and dire warnings do not confer jurisdiction where it does not exist. Courts
have limited jurisdiction defined by law. See, e.g., Kokkonen v. Guardian Life Ins. Co., 511 U.S.
375, 377 (1994) (federal courts have limited jurisdiction defined by Congress); Zelig v. County of
10 Los Angeles, 27 Cal. 4th 1112 (2002) (noting broad classes of discretionary activities by executive
11 agencies that are not subject to judicial liability).
12 There is nothing unusual about questions of an official's qualifications to hold office being
13 reserved to the non-judicial branches of government. For example, each house of Congress is the
14 exclusive judge of the qualifications of its members, and courts have no power to review its
15 determinations of their qualifications. U.S. Const, art. I, § 2; see, e.g., Roudebush v. Hartke, 405
\
16 U.S. 15, 19 (1972) (which candidate is entitled to be seated in the Senate "is, to be sure, a
17 nonjusticiable political question"); Morgan v. UnitedStates, 801 F.2d 445,447-51 (D.C.Cir. 1986).
18 Indeed, in California a private citizen may not bring suit to divest an unqualified officeholder from
19 any public office; rather, such action may be brought only in a quo warranto proceeding by the
20 Attorney General or a relator approved by the Attorney General. Cal. Civ. Proc. Code § 803 (West
21 2008); Visnich v. Sacramento County Bd. ofEduc., 37 Cal. App. 3d 684, 690 (1974) ("title to an
22 elective office cannot be litigated by any other means than in quo warranto by the state"). These
23 rules reflect the sensitivity of judicial intervention in the composition of independent branches of
24 government and the courts' salutary reluctance to overrule the judgment of voters.
25 Such principles are, of course, all the more compelling when the office in question is the
26 presidency of the United States and the tribunal being asked to issue an injunction is not federal but
27 rather a state court. Were the courts of fifty states at liberty to issue injunctions restricting the
28
11
1 certification and actions of duly-elected presidential electors, the result could easily be conflicting
2 rulings and the delayed transition of power in derogation of statutory and constitutional deadlines.
3 Again, Respondents' Demurrer put Petitioners on notice of the absence of state-court
jurisdiction. Their FAP contains nothing to cure the deficiency.
The qualifications of an elected presidential candidate remain exclusively for the United
States Congress to assess. Neither this nor any other court has jurisdiction over the matter.
III. The Case Is Not Justiciable—It Is Moot in All Respects Except Those That Are
Unripe.
8
Even were Petitioners capable of alleging the cause of action they have brought, any such
9
claim would now be moot. Each Respondent has now carried out his or her duties.
10
The black-letter rule is that even where "a case may originally present an existing
controversy, if before decision it has, through act of the parties or other cause, occurring after the
12
commencement of the action, lost that essential character, it becomes a moot case or question which
will not be considered by the court." 3 Witkin, Cal. Proc. 5th, Actions, § 32, p. 98 (5th ed. 2008)
14
(internal quotation marks omitted) (quoting Wilson v. Los Angeles County Civil Serv. Comm'«, 112
Cal. App. 2d 450,453 (1952) (challenge to civil service list rendered moot by expiration of list and
16
issuance of new list)). The rule is widely applied to election cases when an election has been held
17
that precludes the writ relief sought. See generally Mapstead v. Anchundo, 63 Cal. App. 4th 246
18
(1998) (challenge to sufficiency of referendum petition mooted by conduct of election); Chase v.
19
Brooks, 187 Cal. App. 3d 657 (1986) (whether referendum petition complied with statutory
20
requirements mooted by election); Long v. Hultberg, 27 Cal. App. 3d 606 (1972) (mandamus
21
petition by official named in recall petition challenging sufficiency of petition dismissed as moot
22
after election held, petitioner recalled, and successor elected); see also generally Lanahan v. City of
23
Los Angeles, 14 Cal. 2d 128 (1939) (same); Bradley v. Voorsanger, 143 Cal. 214 (1904) (suit to
24
enjoin election mooted by holding of election). Likewise, when post-election proceedings have
25
superseded a challenge to the election or to those proceedings, a writ petition is properly dismissed
26
as moot. E.g., Campbell v. Super. Ct., 126 Cal. App. 652 (1932) (mandamus petition seeking to
27
block losing candidate's election contest rendered moot by completion of contest).
28
12
This case is clearly moot. The Secretary of State already placed the candidates' names on
the ballot and, of course, the election has already taken place. Respondent California Electors were
certified elected by the Secretary of State on December 1,2008, they met and cast their votes for
President Obama and Vice President Biden on December 15,2008, and the Governor certified those
results and transmitted them to the President of the Senate on December 15,2008. And, of course,
President Obama and Vice President Biden have now been inaugurated and are engaged in the duties
7 of their offices. Since Petitioners acted too late for the Secretary of State, were she otherwise
inclined, to demand evidence of those candidates' qualifications, prayers for her to be compelled to
take such action have long been moot. Likewise, it is now far too late for a writ of mandate barring
10 the Secretary of State "from both certifying to the Governor the names of the California Electors, and
11 from transmitting to each presidential Elector a Certificate of Election," and it is likewise too late
12 for a "writ barring Respondent California Electors from signing the Certificate of Vote" (FAP ^ 70).
13 Those are now completed acts. Such a writ would be futile.
14 In a desperate effort to breathe life into their post-mortem case, Petitioners have added to
15 their FAP cryptic allegations of an ongoing dispute. Thus, to their belated demand that the Secretary
16 of State be enjoined from her duties with regard to the 2008 election they add the plea that the Court
17 enjoin her "from certifying the California Electoral votes until documentary proof is produced for
18 any future Presidential candidate of that candidate's eligibility to serve as President" (FAP f 87) and
19 directing her to "vet OBAMA's, and any other future candidate's eligibility for President and resolve
20 this issue prior to the certification of the election results by the electors in any future Presidential
21 election" to determine whether he should be criminally prosecuted (id. 1) 89).
22 To the extent these claims are not now moot, they are not ripe and not justiciable. For an
23 action to be ripe, there must be an "actual controversy... which admits of definitive and conclusive
24 relief by judgment within the field of judicial administration, as distinguished from an advisory
25 opinion upon a particular or hypothetical state of facts. The judgment must decree, not suggest, what
26 the parties may or may not do." Selby Realty Co. v. City of San Buenaventura, 10 Cal. 3d 110,117
27 (1973). The Court may not issue an advisory opinion about facts not yet known. E.g., Pac. Legal
28 Found, v. Coastal Comm'n, 33 Cal. 3d 158 (1982) ("The ripeness requirement, a branch of the
13
doctrine of justiciability, prevents courts from issuing purely advisory opinions.") (citing People ex
rel. Lynchv. Super. Ct., 1 Cal. 3d910(1970)). "[A]n action not founded upon an actual controversy
between the parties to it, and brought for the purpose of securing a determination of a point of law
... will not be entertained." Golden Gate Bridge Dist. v. Felt, 214 Cal. 308, 316 (1931); City of
Santa Monica v. Stewart, 126 Cal. App. 4th 43, 59 (2005); California Water & Tel. Co. v. County
of Los Angeles, 253 Cal. App. 2d 16,22 (1967).
And, of course, a writ of mandate will not lie unless there is a clear and present ministerial
duty. Lungren v. Deukmejian, 45 Cal. 3d 727,731-732 (1988) ("Mandate will not lie unless... the
respondent has a present duty to perform the acts applicant seeks to compel."); Am. Fed'n of State,
10 County andMun. Employees v. Metro. Water Dist., 126 Cal. App. 4th 247,297 (2005). "[T]he writ
11 will not be granted merely in anticipation that the party will refuse to perform the duty when the time
12 comes." Brandt v. Board of Supervisors ofMadera County, 84 Cal. App.3d598,601 (1978). There
13 is no present duty in any Respondent and therefore no basis for a writ.
14 This Court cannot now know who future candidates will be, what kinds of controversies may
15 or may not arise with respect to their eligibility for office or how the Secretary of State will handle
16 any controversies — in short, what "actual set of facts" will arise for "the issues [to] be framed with
17 sufficient definiteness to enable the court to make a decree finally disposing of the controversy."
18 Pac. Legal Found., 33 Cal. 3d at 170; see also PG&E Corp. v. Pub. Utils. Comm'«, 118 Cal. App.
19 4th 1174, 1216 (2004). Furthermore, in the absence of a ripe controversy, these Petitioners, who
20 have pinned their claimed standing on their status as nominees and electors in the 2008 election
21 (FAP173) lack standing to bring the case they now plead, since they cannot show that any of them
22 will be nominees or electors in any future election. "A party lacks standing if it does not have an
23 actual and substantial interest in, or would not be benefitted or harmed by, the ultimate outcome of
24 an action." Stewart, 126 Cal. App. 4th at 59, 60 (internal quotation marks omitted). Precisely
25 because "we are not in a position to know the parameters of future relations between" the parties,
26 the Court does not have before it "an actual controversy with known parameters." Sanctity of
27 Human Life Network v. California Highway Patrol, 105 Cal. App. 4th 858, 872, 873 (2003).
28
14
Of course, any discussion of future cases requires a studied suspension of one's knowledge
of the underlying law. Any future case will, like this one, suffer from the absence of any cognizable
cause of action and from the absence of state-court jurisdiction and the exclusivity of Congress'
purview over the qualifications of an elected presidential candidate. But if these Petitioners wish
again to throw themselves against those walls, and if they have the standing to support the try, then
they can file another petition, well in advance of the election. Until then, this case must be dismissed
7 as non-justiciable.
8 CONCLUSION
9 Over eight million Californians cast their votes for Barack Obama and Joe Biden — more
10 than 61% of the State's record turnout. (RJN, Ex. B-8.) Petitioners, who came in fifth in the
11 presidential election in California with 40,673 votes (0.3%) (id.), may not overturn the will of the
12 People through a belated petition demanding judicial orders that have no basis in law and that seek
13 to enjoin ministerial actions that have already been completed. This Demurrer should be sustained,
14 and this case should be dismissed.
15 DATED: February 23,2009 STRUMWASSER & WOOCHER LLP
Fredric D. Woocher
16 Michael J. Strumwasser
Aimee Dudovitz
17"
18
ichael J. Strumwasser
19
70 Attorneys for Respondents President Barack Obama, Vice
President Joe Biden, and California Electors
21 "
22
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15

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1 MICHAEL J. STRUMWASSER (CA BAR No.

24 Hearing Date: March 13,2009

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