l UNJTED STATES JUSTICE FOUNDATJON

NATHANIEL J, OLESON (SBN #276695)

2 GARY G. KREEP (SBN 066482)
932 "D" Street, Suite 3
3 Ramona, California 92065
Tel: (760) 788-6624
4 Fax: (760) 788-6414
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Attorneys for Petitioners,
John Albert Dummett, Jr., Gil Houston,
Larry Lakamp, Milo L. Johnson,
Joe Ott, Markham Robinson,
and the Constitution Party
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8 SUPERIOR COURT OF CALJFORNJA
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COUNTY OF SACRAMENTO
JOHN ALBERT DUMMEIT, JR.; MARKHAM
ROBINSON, Chairman of the Executive
Committee of the State Central Committee of the
American Jndependent Party of California; THE
CONSTJTUTION PARTY; GJL HOUSTON;
LARRY LAKAMP; MJLO L. JOHNSON; and
JOE OTT;
) Civil Action No.: 34-2012-800ll091
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PETITIONERS' OPPOSITION TO
DEMURRER
BY FAX
T1me: 9:00a.m.
Petitioners,) Dept.: 31
v.
CALJFORNJA SECRETARY OF STATE
DEBRA BOWEN, in her official capacity;
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Judge: Hon. Michael P. Kenny
) Action Filed: March 20, 2012
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Respondent.)
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21 Petitioners John Albert Dummett, Jr., Markham Robinson, The Constitution Party, Gil Houston,
22 Larry Lakamp, Milo L. Johnson, and Joe Ott (hereinafter collectively referred to as "PETITIONERS"),
23 offer the following Opposition to the Demurrer of Respondent California Secretary of State Debra Bowen
24 (hereinafter referred to as "BOWEN").
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PETITIONER'S OPPOSITION TO DEMURRER
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2 INTRODUCTION
3 On March 20,2012, PETITIONERS filed the instant action against BOWEN. John Albert
4 Dum melt, Jr. (hereinafter referred to as "DUMMETT'') was a write-in Presidential candidate in the 2012
5 California Republican Presidential primary, and is a write-in Presidential candidate for the 2012
6 California General Election. Markham Robinson is Chairman of the Executive Committee of the State
7 Central Committee of the American Independent Party of California (hereinafter referred to as
8 "ROBINSON"). The Constitution Pmty (hereinafter referred to as "CONSTITUTION PARTY") is a
9 national political party, and has nominated Virgil Goode as its Presidential candidate. Gil Houston
10 (hereinafter referred to as "HOUSTON") is a registered California voter. Larry Lakamp (hereinafter
I 1 referred to as "LAKAMP") is a registered California voter. Milo L. Johnson (hereinafter referred to as
12 "JOHNSON") isa registered California voter. Joe Ott (hereinafter referred to as "OTT") is a registered
!3 California voter_
14 PETITIONERS brought their petition seeking a determination by this Court as to whether
!5 BOWEN has verified that all candidates for the 2012 California Presidential primary election had
16 provided proof that they possess the minimum qualifications for the Office of President of the United
17 States, and, if not, PETITIONERS asked the Court to enjoin BOWEN from placing the names of such
18 unverified candidates on the California Presidential primary election ballot, unless and until such time as
19 BOWEN can show that each of said candidates have so verified their eligibility for the office.
20 The underlying writ petition was filed on March, 20,2012, and, on May 4, 2012, BOWEN filed a
21 demurrer to PETITIONERS' writ petition.
TI n
23 BOWEN HAS A DUTY TO ENSURE THAT CALIFORNIA ELECTION LAW IS FULLY
24 COMPLIED WITH BY ALL CANDIDATES, INCLUDING BY NATIONAL PRESIDENTIAL
25 CANDIDATES
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PETITIONER'S OPPOSITION TO DEMURRER
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BOWEN alleges that the Secretary of State has no legal duty to detennine whether a presidential
2 candidate is constitutionally eligible to serve as President of the United States. This allegation is without
3 merit. First, the California Secretary of State website
4 (http://www.sos.ca.gov/admin/about-the-agencv.htm) lists the duties of that office, including the duty of
5 the chief elections officer for California, to ensure that California election laws are followed (California
6 Government Code 12172), the duty to investigate election fraud (California Government Code
7 12172), and the duty to advise candidates and local elections officials on the qualifications and
8 requirements for running for office (California Government Code 12172.5). (Writ Petition, paragraph
9 31).
10 In order to fulfill the duty to advise candidates, the Secretary of State provides several documents
11 with information concerning the qualifications and requirements for each elected position. Documents
12 listing the qualifications and requirements are provided for all state and Federal offices, including the
13 offices of Governor and Lieutenant Governor; Secretary of State, Controller, and Treasurer; Attorney
14 General; Insurance Commissioner; Member of the State Board of Equalization; State Senator and
15 Member of the Assembly; United States Senator; United States Representative in Congress; and President
16 of the United States. (Writ Petition, paragraph 32).
17 The Secretary of State is required to verify that every candidate for these positions is eligible for
18 the sought position, with one exception: those candidates that have been selected for the office of
19 President of the United States by a national political party are not required to present to the California
20 Secretary of State any documentation proving their eligibility for the office of President.
21 As PETITIONERS showed in their Writ Petition, Elections Code 690 I forces the Secretary of
22 State to disregard the duties of her office as chief elections official in the State of California with regard
23 to the most important elected office in the United States. Political parties are not, and should not be,
24 responsible for ensuring that Elections Laws are complied with, as the primary goal of the various parties
25 is to promote and elect their candidates. For this reason, there are no Federal or State requirements
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compelling political parties to provide proof that their respective candidates are eligible for the offices
2 sought. Contrary to the interests of the political parties, the duty of the California Secretary of State is to
3 verify that all candidates are eligible for the offices sought.
4 This duty should properly extend to all candidates listed on the ballot, and not exempt a candidate
5 simply because a national political party selects a particular candidate for President, and, for the Court to
6 find otherwise would be to substitute the choice ofunelected political party officials for the duty that the
7 Secretary of State owes to the citizens of the State of California, to ensure that the state's election laws ar
8 fully complied with.
9 Finally, the language of California Elections Code 6901, compelling the Secretary of State to
I 0 place any candidate nominated by apolitical party on the ballot, without verifying U1at the candidate is
11 eligible for the office, is in direct conflict with the requirements for Presidential eligibility in Article II of
12 the United States Constitution.
13 This is no trivial matter, as the California Constitution provides; "The State of California is an
14 inseparable part of the United States of America, and the United States Constitution is the supreme law of
15 the land." (California Constitution, Article lll, 1 ). (Writ Petition, paragraph 38).
16 Since the United States Constitution is the supreme law of the land, under both the United States
17 and the California Constitutions (U.S. Constitution, Article VI, Clause 2; California Constitution, Article
18 Ill, I), any statute which conflicts with the United States Constitution is an unconstitutional variance,
19 and is, therefore, void and unenforceable.
20 California Secretaries of State have historically exercised their due diligence by reviewing
21 necessary background documents, verifying that the candidates that were submitted by the respective
22 political parties as eligible for the ballot were, indeed, eligible. In 1968, the Peace and Freedom Party
23 submitted the name of Eldridge Cleaver as a qualified candidate for President of the United States. The
24 then Secretary of State, Mr. Frank Jordan, found that, according to Mr. Cleaver's birth certificate, he
25 would be only 34 years old at the time of the general election, one year shy of the 35 years of age needed
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to be on the ballot as a candidate for President. Using his administrative powers, Mr. Jordan removed Mr.
2 Cleaver from the ballot. Mr. Cleaver, unsuccessfully, challenged this decision to the Supreme Court ofth
3 State of California, and, later, to the Supreme Court of the United States, which affirmed the actions of
4 the California Secretary of State by denying review of Cleaver's removal from the ballot. Cleaver v.
5 Jordan (1968) 393 U.S. 810,89 S.Ct. 43. Similarly, in 1984, the Peace and Freedom Party listed Mr.
6 Larry Holmes as an eligible candidate in the Presidential primary. When the then California Secretary of
7 State, Daniel M. Burns, checked Mr. Holmes' eligibility, it was found that Mr. Holmes was, similarly, not
8 eligible, and Mr. Holmes was removed from the ballot.
9 The removal of ineligible candidates is not a relic of historical actions by California Secretaries o
10 State, as BOWEN too exercises this power to remove ineligible candidates from the ballot. Just this year,
11 Peta Lindsay was selected by the Peace and Freedom Party to be their Presidential candidate on the 2012
12 California primary ballot. BOWEN, however, rejected Ms. Lindsay, and refused to place her name on the
13 ballot, because she is 27 years old, when the U.S. Constitution, Article 2, I, requires that candidates for
14 President to be at least 35 years of age. There now exists a similar situation to that in which California
15 Secretaries of State have removed Presidential candidates from the ballot in the past, namely that the
16 Democratic Party has submitted Barack Hussein Obama, Jr., as a Democratic Party candidate for
17 President, when he is arguably ineligible for the office. Further, a similar situation may exist concerning
18 the Republican Party candidacy of Mitt Romney. Since BOWEN has demonstrated by her actions that she
19 can and does remove ineligible presidential candidates from the ballot, she should be required to make
20 such verification of eligibility for all presidential candidates, and not just verifY the eligibility of
21 candidates from third parties.
22 As discussed above, BOWEN is required by California statute to oversee California elections,
23 and to enforce California election law. This requirement cannot be satisfied by attempting to transfer the
24 duty to enforce election law to any other entity, such as to the Electoral College, political parties, or even
25 to the California electorate. For this reason, PETITIONERS have shown sufficient facts to establish that
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BOWEN owes a duty and has failed to comply with said duty.
2 Ill.
3 RESPONDENTS CONCED.E THAT CALIFORNIA ELECTIONS CODE SECTION 6901 IS
4 UNCONSTITUTIONAL
5 BOWEN cite the 2008 case Keyes v. Bowen as support for their argument that NOONAN did not
6 state a cause of action against BOWEN in this instant case. Contrary to the assertions of BOWEN,
7 Noonan v Bowen concerns distinct issues of law and fact from Keyes v. Bowen. In the 2008 case of Keyes
8 v. Bowen, the defendants raised California Elections Code Section 6901 as a defense to the action, and the
9 court, in that case, agreed with said defense in the order dismissing the case. Whereas, herein, Noonan v.
10 Bowen has been brought, in part, to challenge the Constitutionality of California Elections Code Section
11 6901. RESPONDENTS, however, did not address the arguments regarding California Elections Code
12 Section 6901, at all, and, therefore, waive any objection to PETITIONERS' argument. ("If the party
13 against whom a complaint or cross-complaint has been filed fails to object to the pleading, either by
14 demurrer or answer, that party is deemed to have waived the objection unless it is an objection that the
15 court has no jurisdiction of the subject of the cause of action alleged in the pleading or an objection that
16 the pleading does not state facts sufficient to constitute a cause of action." California Code of Civil
17 Procedure Section 430.80(a).) BOWEN'S waiver of objection, in effect, concedes that Section 6901 is
18 unconstitutional, and improperly prevents BOWEN from fulfilling her duties as Chief Election Officer of
19 California.
20 IV.
21 PETITIONERS' CLAIMS FOR RELIEF ARE NOT MOOT
22 BOWEN alleges that because BOWEN officially cmtificd names of candidates for the ballot
23 as Presidential candidates on March 29,2012, that this matter is moot. This allegation is without merit.
24 PETITIONERS filed this writ on March 20, 2012, well in advance of BOWEN's certification on March
25 29, 2012.ln addition, BOWEN had a window oftime from January 7, 2012, through March 29,
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2012, to announce the certified Jist of candidates for the office of President of the United States for the
2 June 5, 2012, primary election. Potential candidates are not required to submit any nomination papers or
3 signatures until after this period of time begins. BOWEN seems to contend that no lawsuit could ever be
4 brought to challenge names on a primary election because no case could come before the Court on
5 noticed motion prior to the deadline for certification of names. Such a rule would prohibit candidates,
6 such as DUMMEIT, from ever effectively challenging primary ballots because the names to be
7 challenged would not be known until the start of BOWEN's certification period, and could not be brought
8 after the period ended. Contrary to BOWEN'S contentions, PETITIONERS brought the underlying writ
9 in a timely manner, and there exists an ongoing controversy regarding the names that appeared on the
10 June 5, 2012, primary ballot, and for these reasons, this matter is not moot.
II V.
12 THERE IS NO EFFECTIVE REMEDY AT THE FEDERAL LEVEL
13 BOWEN alleges that there is a remedy available to PETITIONERS' contentions at the Federal
14 level. This argument is without merit, as there is no mechanism at the Federal level to challenge ineligible
15 candidates.
16 Federal law allows Congress to resolve questions regarding the vote of a Presidential Elector (3
17 U.S.C. 15), but this is a remedy limited to problems with Electors, and does not extend to the eligibility
18 of a candidate, as 3 U.S.C. 15 only allows for objections regarding "any vote or paper from the State."
19 Since this action is a dispute over the eligibility of Barack Obama, and/or Mitt Romney, for the office of
20 President of the United States, and not a dispute over whether the Electors properly cast their vote, this
21 statute does not apply to the underlying issue at hand.
22 In addition, a provision of the U.S. Constitution may not be disregarded by means of a popular
23 vote of the people, as there are specific guidelines for amending the Constitution of the United States. In
24 order to do so, the U.S. Constitution, Article 5, requires a two-thirds vote of both houses of Congress, and
25 ratification by three-fourths of all State legislatures in the United States. Even if the people of the United
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States voted to elect as President a candidate who did not qualify for the position, that vote would not be
2 sufficient to overcome the Constitutional requirements for the office and make that candidate eligible.
3 Once a name is placed on a ballot, voters are only concerned witl1 whether they prefer one candidate over
4 another candidate, as it can be rightfully inferred by said voters that the threshold issue of eligibility has
5 already been detennined by virtue of the candidate names having been placed on the ballot. Additionally;
6 the candidates for the Office of President of the United States are not required to prove any eligibility
7 issues to the voters at all, and, instead, candidates are tasked with convincing the voters to vote for that
8 particular candidate over the other candidates. Because voters can, and do, vote for candidates that are
9 liked by the voters, even if those candidates may not be eligible for the position, the voters do not have
10 the power, or the right, to determine the eligibility of a candidate. For the Court to hold otherwise would
II be to strip all candidates not winning a majority of the votes cast of all political power, as the laws would
12 be based upon the whims of the majority of voters, rather than on the Rule of Law.
13 Furthermore, the Electoral College is not empowered with the authority to determine the
14 eligibility of any candidate for President. In twenty-six States and the District of Columbia, Presidential
15 Electors are prohibited by statute from voting in variance with their pledges, or the votes of a majority of
16 the voters in their State or District, as, if they do, they face civil and/or criminal penalties and fines. The
17 act of determining eligibility is one that requires discretionary authority, so that a candidate found to be
18 ineligible may be removed or precluded from placement on the ballot. However, any discretionary
19 authority of the majority of the States' Presidential Electors has been removed by statute, and the
20 Presidential Electors, instead, perform a ministerial function of casting their votes in accordance with the
21 popular vote of the State that each Elector represents. Any assertion that the Electoral College has the
22 authority to make any determination of a Presidential candidate's eligibility to serve in the office is
23 unpersuasive, because, while the historical intent of the of the Electoral College was to allow for such
24 determinations, the modern majority trend of the States is to limit tl1e duties of the Presidential Electors to
25 the ministerial role of casting a vote for the candidate chosen by the popular vote of their respective States
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or District. For these reasons, the ministerial power to determine and/or exclude a candidate's eligibility i
2 not found within the Electoral College.
3 Finally, political boards, committees, and panels, in general, such as the United States Congress,
4 are not proper bodies for making determinations of eligibility in this situation because of the significant
5 risk of"corrupt and partisan action" (Irby v. Barrell (AK, 1942) 163 S. W .2d 512, 514). Matters
6 committed by the Constitution to the non-judicial branches ofthe Federal Government are political in
7 nature. Baker v. Carr (1962) 369 U.S. 186, 211. Thus, the Office of President of the United States is
8 designed to decide political issues. In like manner, the United States Congress is a political body with the
9 power to legislate political matters. In addition to its political powers, Congress has internal rules
I 0 concerning whether to seat or remove their own members, but these rules do not extend to eligibility of
11 candidates for the Office of President of the United States. Sinceboth the Congress and the President are
12 political bodies, any Congressional authority to determine whether a candidate meets the requirements for
13 the Office of President would be suspect, as the determinations would depend on which political party
14 was in the majority at the time. A related issue was considered by Court in lrby v. Barrell, which held:
15 "If the Chairman and Secretary of the Committee have the right to say that because of the
16 decision of this court petitioner is ineligible to be a candidate for office, they may also say, in any
17 case, that for some other reason a candidate is ineligible. For instance, it has been held by this
18 court in many election contests that one must pay his poll tax; that he must do so after proper
19 assessment in the time and manner required by law, and that otherwise he is not eligible even to
20 vote, and unless he were a voter he could not hold office. So with other qualifications, such as
21 residence. May this question be considered or decided by the Chairman and Secretary of the
22 Committee? It may be that such power can be conferred upon them by Jaws of this State or the
23 rules of the party; but it is certain that this has not yet been done. lfthis can be done, and should
24 be done, the door would be opened wide for corrupt and partisan action. It might be certified that
25 a prospective candidate has sufficiently complied with the laws of the State and the rules of a
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political party to become a candidate, and, upon further consideration, that holding might be
2 recalled; and this might be done before that action could be reviewed in a court of competent
3 jurisdiction and reversed in time for the candidate to have his name placed on the ticket. It would
4 afford small satisfaction if, after the ticket had been printed with the name of the candidate
5 omitted, to have a holding by the court that the name should not have been omitted." (Irby v.
6 Barreii(AK, 1942) 163 S.W.2d 512, 514).
7 Since the Office of President of the United States is the most powerful position in the country, the
8 risk of"corrupt and partisan action" is great if the authority to determine eligibility is placed in the hands
9 of those who are likely to gain an advantage over their opposing political parties. Given this risk, the
10 proper remedy for eligibility disputes is to bring such disputes to the Court for a determination, rather
II than to Congress or to the Electoral College, and a Court has the power to make determinations of fact
12 and law regarding controversies over the eligibility of a political candidate with little likelihood of
13 partisan results.
14 For all of these reasons, PETITIONERS have no remedy available at the Federal level.
15 VI.
16 THE DOCTRJNE OF LATCHES DOES NOT BAR PETITIONERS' CLAIMS
17 BOWEN alleges that PETITIONERS waited too long in filing their Writ Petition and, therefore,
18 are barred by the doctrine of latches. This allegation is without merit. PETITIONERS timely filed their
19 Writ Petition on March 20,2012, in advance of BOWEN's certification on March 29,2012. In addition,
20 BOWEN had a window oftime from January 7, 2012, through March 29,2012, to announce the certified
21 list of candidates for the office of President of the United States for the June 5, 2012, primary election.
22 Because potential candidates are not required to submit any nomination papers or signatures until after
23 this period of time begins, any writ petition regarding the certification of names for the ballot by BOWEN
24 would be premature, and not yet ripe for resolution. If BOWEN's argument were to be accepted, no
25 lawsuit could ever be brought to challenge names on a primary election under the doctrine of latches,
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because no case could come before the Court on noticed motion prior to the deadline for certification of
2 names, which, as argued by BOWEN, would be untimely. Such a rule would prohibit candidates, such as
3 DUMMETT, from ever effectively challenging primary ballots because the names to be challenged would
4 not be known until the start of BOWEN's certification period, and could not be brought after the period
5 ended. Contrary to BOWEN'S contentions, PETITIONERS brought the underlying writ in a timely
6 manner and there exists an ongoing controversy regarding the names that appeared on the June 5, 2012,
7 primary ballot, and for these reasons, this matter is not barred by the doctrine of latches.
8 vn.
9 CONCLUSION
10 For the foregoing reasons, BOWEN'S demurrer should be overruled.
I I Dated: October 8, 20 12.
12 Respectfully Submitted,
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NATHANIEL OLESON
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