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Obama citizen appeal rejected

The Supreme Court delivers the latest setback to those who don't believe that the president-elect is eligible for office.

December 09, 2008|David G. Savage | Savage is a writer in our Washington bureau.

WASHINGTON — The Supreme Court turned down an emergency appeal on Monday from a New Jersey man who claimed President-elect Barack Obama was not a natural-born citizen, and therefore was ineligible to become president.

The setback is the latest, but probably not the last, for a small group of persistent litigants who want the courts to block Obama from taking office.

So far, none of these plaintiffs has persuaded any judge that Obama was not born in Hawaii on Aug. 4, 1961, as his birth certificate states.

The controversy has been prominent in the conservative blogosphere. It is based on the provision in the Constitution that says, "No person except a natural born citizen . . . shall be eligible to the office of President." Any person born in this country is considered under U.S. law to be a natural-born citizen.

But Leo C. Donofrio, a retired lawyer from East Brunswick, N.J., contended that Obama was ineligible to be president because his father was from Kenya.

In October, Donofrio sued New Jersey's secretary of state, Nina Wells, arguing that she should remove from the ballot both Obama and Sen. John McCain because neither was a natural-born citizen. (McCain was born in what was then the U.S.-controlled Panama Canal Zone.)

When that claim was rejected by a New Jersey judge and the state Supreme Court, he filed an "application for an emergency stay" with Justice David H. Souter, who turned it down on Nov. 6.

Donofrio then filed the same application with Justice Clarence Thomas. The court's routine procedure in such instances is that the second justice refers the matter to the court as a whole. Otherwise, for example, a desperate lawyer with a client facing a pending execution might file the same application with each of the nine justices.

Donofrio said Obama should "be required to prove . . . he was born in Hawaii. . . . Even if it were proved he was born in Hawaii, Sen. Obama's father was born in Kenya, and therefore, having been born with split and competing loyalties, candidate Obama is not a 'natural born citizen.' "

In Monday's order, the court said it had denied Donofrio's request for a stay.

Most of the lawsuits involving Obama's birth say state officials should investigate his Hawaiian birth certificate to see whether it is valid.

The Supreme Court decides legal issues involving federal law and the Constitution, but it does not resolve factual disputes.

Still pending at the Supreme Court is an appeal petition from Philip Berg, a lawyer from Lafayette Hill, Pa. He sued Obama in a federal court in August and claimed the Democratic presidential candidate was born in Kenya.

Lawyers for Obama and the Democratic National Committee responded that this was "patently false."

The judge dismissed Berg's suit on the grounds that he did not have standing to sue.

Berg bypassed the U.S. appeals court and filed an appeal directly with the Supreme Court on Oct. 30. Justice Souter turned down his request for an emergency stay before the election.

And afterward, the Justice Department and the Federal Election Commission waived their right to respond.

The justices are likely to turn down Berg's appeal in a few weeks.

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david.savage@latimes.com

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