1 2 3 4 5 6 7 8 9 10 11 1 2 1 3 1 4 1 5 1 6 17 1 8 1 9 20 2 1 22 2 3 24 26 2 7 28 Cote §6103 MICHAEL J. STRUMWASSER (C A B A R N o. 58413) FREDRIC D . WOOCHER (C A B A R No. 96689) AIMEE DUDOVITZ (CA BARNo. 203914) STRUMWASSER & WOOCHER LLP 109 40 Wilshire Boulevard, Suite 2000 Los Angeles, California 90024 Telephone: (310)576-1233 Facsimile: (310)319-0156 Attorneys for Respondents President Barack Obama, Vice President Joe Biden, Jaime Alvarado, W il liam Ayer, Joe Baca, Jr., Ja n Blue, Roberta Brooks, Nathan Brostrom, Mark Cibula, Robert Conaway , Ray Cordova, Lawrence DuBo is, James Farley, John Freidenric h, Mark Friedma n, Bobby Closer, Audrey Gord on, flene Haber, Robert "B ob " Handy, Mary Hubert, Aleita Huguenin, Richard Hundrieser, Fred Jackson, Patrick Kahler, Mary Keadle, LeRoy King, Vinz Koller, Mark Macarro, Alma Marquez, An a Delgado Mascarenas, Betty McMilli on, Michael McNerney, Gwen Moore, Jeremy Nishihara, Gregory Olzack, Nancy Parrish, Lou Paulson, Joe Perez, Anthony Rendon, Frank Salazar, David S anch ez, Larry Sheingold, Lane Sherman, Stephen Smith, Juadina Stallings, Kenneth Sulzer, Aaruni Thakur, Norma Torres, Silissa Uriarte-Smith, Sid Voorakkara, Greg W arner, Karen Waters, Sanford W einer, Gregory W illenborg, Kelley Willis , James Yedor, an d Christine Young ROBERT F . BAUER (WDC BARNo. 938902) (Pro H oc Vice pending) 60 7 Fourteenth Street, N.W. Washington, D.C. 20005 Telephone: (202) 628-6600 Facsimile: (202) 434-1690 Attorney for Respondents President Barack Obama and Vice President Joe Biden IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA F O R T HE COUNTY OF SACRAMENTO Y AMBASSADOR DR. ALAN KEYES, et al., Petitioners, v. CALIFORNIA SECRETARY OF STATE DEBRA BOWEN, et al., espondents. Case No . 34-2008-80000096-CU-WM-GDS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF PRESIDENT BARACK OBAMA, VICE PRESIDENT JOE BIDEN, AND CALIFORNIA ELECTORS TO PETITIONERS' FIRST AMENDED PETITION FOR WRIT OF MANDATE Hearing Date: March 13,2009 Time: 9:00 a,m. Dept.: 31 Judge: Hon. Michael P. Kenny Action Filed: November 13, 2008 Printed on Recycled Paper MEMO OF POINTS & AUTHORITIES I O DEMURRER T O FIRST AMEND ED PETITION F O R WRIT O F MANDATE A
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Keyes v Bowen Memorandum Points Authorities Support Obama Demurrer
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8/14/2019 Keyes v Bowen Memorandum Points Authorities Support Obama Demurrer
Cote §6103MICH A EL J. STRU MW A SSER (C A BA R No. 58413)FREDRIC D . W O O C H E R (C A BA R No. 96689)AIMEE DUDOVITZ (C A B A R N o . 203914)STRUMWASSER & WOOCHERLLP10940 Wilshire Boulevard, Suite 2000Los Angeles, California 90024
Telephone: (310)576-1233Facsimile: (310)319-0156
A ttorneys for Respondents President Barack Obama, Vice President Joe Biden, Jaime Alvarado,W illiam Ayer, Joe Baca, Jr., Jan Blue, Roberta Brooks, Nathan Brostrom, Mark Cibula, RobertConaway, Ray Cordova, Lawrence DuBois, James Farley, John Freidenrich, Mark Friedman,Bobby Closer, Audrey Gordon, flene Haber, Robert "Bob " Handy, Mary Hubert, AleitaHuguenin, Richard Hundrieser, Fred Jackson, Patrick Kahler, Mary Keadle, LeRoy King, VinzKoller, Mark Macarro, Alma Marquez, Ana Delgado Mascarenas, Betty McMillion, MichaelM cNerney, Gwen Moore, Jeremy Nishihara, Gregory Olzack, Nancy Parrish, Lou Paulson, JoePerez, Anthony Rendon, Frank Salazar, David Sanchez, Larry Sheingold, Lane Sherman,Stephen Smith, Juadina Stallings, Kenneth Sulzer, Aaruni Thakur, Norma Torres, SilissaUriarte-Smith, Sid Voorakkara, Greg W arner, Karen Waters, Sanford W einer, GregoryW illenborg, Kelley Willis, James Yedor, and Christine Young
ROBERT F . BA U ER (WDC B A R N o . 938902) (Pro H oc Vice pending)607 Fourteenth Street, N.W.Washington, D.C. 20005Telephone: (202) 628-6600Facsimile: (202) 434-1690
A ttorneyfor Respondents President Barack Obama and Vice President Joe Biden
IN THE SUPERIOR COURTOF THE STATE OFCALIFORNIA
F O R T H E COUNTYO F SACRAMENTOY
AMBASSADOR DR. ALAN KEYES, et al.,
Petitioners,
v.
C A L I F O R N I A SECRETARYO F STATE
D E B R A BOWEN, et al.,
Respondents.
Case No. 34-2008-80000096-CU-WM-GDS
MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFDEMURRER OF PRESIDENTBARACK OBAMA, VICE PRESIDENTJOE BIDEN, AND CALIFORNIAELECTORS TO PETITIONERS' FIRSTAMENDED PETITION FOR WRIT OFMANDATE
Hearing Date: March 13,2009Time: 9:00 a,m.
Dept.: 31Judge: Hon. Michael P.KennyAction Filed: November 13,2008
Printed on Recycled Paper
M E M O O F P O I N T S & A U T H O R I T I E S I S O D E M U R R E R T O F I R S T A M E N D E D P E T I T I O N F O R W R I T O F M A N D A T E
8/14/2019 Keyes v Bowen Memorandum Points Authorities Support Obama Demurrer
A. The Amended Petition Does Not and Cannot State a Cause of Action
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CONTENTS
INTRODUCTION 1
STATEMENT OF THE CASE 1
ARGUMENT 4
I . Because the Amended Petition Does Not and Cannot State a Cause of ActionAgainst Any Respondent, It Should Be Dismissed in Its Entirety Without Leave to
Against President Obama or Vice President Biden 5
B . The Amended Petition Does Not and Cannot State a Cause of ActionAgainst the California Electors 5
1 . The California Electors Have No Judicially-Enforceable Duty to
Conduct an Investigation of a Presidential Candidate'sQualifications fo r Office 5
2. Petitioners' "Haber"-"Huber" Argument Is False and Frivolous 7
C. The Amended Petition Does Not and Cannot State a Cause of ActionAgainst the Secretary of State 9
II. State Courts Have No Jurisdiction over the Qualifications of the President or Vice
Unripe 12
CONCLUSION 15
M E M O O F P O I N T S & A U T H O R I T I E S I S O D E M U R R E R T O F IR S T A M E N D E D P E T I T I O N F O R W R I T O F M A N D A T E
8/14/2019 Keyes v Bowen Memorandum Points Authorities Support Obama Demurrer
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
I f 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
"electing]" her to fill the vacancy of the non-existent Ms. Huber and thereby violated, Petitioners
reason, California Elections Code section 6905. (FAP f 79.)
'As noted in the FAP,lawsuits have been filed in various courts claiming that PresidentObama or Senator John McCain is not a "natural born citizen." (Id. If 74.) Petitioners themselvesnote that most of those cases have already been dismissed. (Id.) TheUnited States Supreme Courthas rejected petitions for certiorari or stay requests in all four cases that it has been asked to review.
I - Donofrio v. Wells, 129 S. Ct. 752 (2008) (rejecting request for order requiring Secretary of State toonofrio v. Wells, 129 S. Ct. 752 (2008) (rejecting request for order requiring Secretary of Stainvestigate citizenship status of Obama andMcCain); Wrotnowski v. Bysiewicz, 958 A.2d 709,(Conn. 2008), stay app. denied, — S. Ct.—, 2008 WL 5204525 (U.S. Conn. Dec. 15, 2008)(No.08A469) (dismissing case regarding Obama for lack of statutory standing and subject matterjurisdiction); Lightfoot v. Bowen, Supreme Court Case No. SI68690 (Cal. 2008) (originalproceeding), stay app. denied, — S. Ct.—, 2009 WL 160628 (U.S.) (denying Petition for Writ ofMandate/Prohibition and Stay regarding Obama);Berg v. Obama, 574 F. Supp. 2d 509,530 (E.D.Penn. 2008), stay app. twice denied, U.S. Supreme Court CaseNo.08-570 (dismissing suit regardingObama on several grounds including standing, lack of jurisdiction, and failure to state a claim).
For a sampling of the other cases, see, e.g., Hollander v. McCain, 566 F. Supp. 2d 63, 71(D.N.H. 2008) (dismissing suit regarding McCain on standing grounds); Roy v.Fed.Election, 2008W L 4921263 (W.D. Wash. 2008) (dismissing suit regarding Obama and McCain for failure to statea claim); Stamper y. UnitedStates, 2008 WL 4838073 (N.D. Ohio 2008) (dismissing suit regardingObama and McCain for lack of jurisdiction); Robinsonv.Bowen, 567 F. Supp. 2d 1144,1147 (N.D.C a l . 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 standinggrounds); Constitution Party v. Lingle, 2008 W L 5 _ 125984 (2008 Hawai'i) (unpublished) (dismissing
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f)*J A g I-UU.ll.lfi \-f UtUAlU. \JLl v7WVW>J.U..l £ 1 \-/lUJXI.v7 4J.1V-1ULUll.lg JUWJ.V WJ. UJ.IJ H.iI.lUl\sL1CU. V4.l4.ljr f? J.fl I C-t/l/f*/(A VA\, \ *t&tri >3
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(W ash . Oct. 27, 2008) (dismissing suit regarding Obama).
M E M O O F P O I N T S & A U T H O R I T I E S I S O D E M U R R E R T O F I R S T A M E N D E D P E T IT I O N F O R W R I T O F M A N D A T E
8/14/2019 Keyes v Bowen Memorandum Points Authorities Support Obama Demurrer
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.
3d 311, 318 (1985) (demurrer should be sustained when complaint fails to state facts sufficient to
constitute a cause of action); Routh v. Quinn, 20 Cal. 2d. 488,493 (1942) (amendment would serve
no useful purpose where absence of legal duty is clear as a matter of law).
I. Because the Amended Petition Does Not and Cannot State a Cause of Action AgainstAny Respondent, It Should Be Dismissed in Its Entirety Without Leave to Amend.
14A writ of mandate lies only to compel the performance of a clear, present, and ministerial
15duty. See Cal. Civ. Proc. Code § 1085 (West 2008); Balasubramanian v. San Diego Cmty. Coll.
16Dist., 80 Cal. App. 4th 977,990 (2000) (upholding denial of writ where defendant school district had
17no mandatory duty to re-classify plaintiff as academic contract employee); McCabe v. Snyder, 75
18Cal. App. 4th 337,340 (1999) (upholding denial of writ where Department of Motor Vehicles had
19no mandatory duty to disclose names and addresses of smog impact fee payees).
20Petitioners cite no California law that imposes any duty on a political party's Presidential or
21Vice Presidential candidate to provide proof of qualifications to the Secretary of State. Nor does the
22F A P cite any law imposing a duty on California Electors to review their candidate's eligibility. In
23fact, the California Electors had no discretion whatsoever — they were required by the state
24Elections Code to vote for their party's candidates. Finally, the FAP does not allege any statutory
25basis for a legal duty of the Secretary of State to demand proof of natural born citizenship from the
26parties' presidential nominees. Because these pleading failures cannot be cured by amendment, this
27Demurrer should be sustained without leave to amend.
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M E M O O F P O I N T S & A U T H O R I T IE S I S O D E M U R R E R T O F I R S T A M E N D E D P E T IT I O N F O R W R I T O F M A N D A T E
8/14/2019 Keyes v Bowen Memorandum Points Authorities Support Obama Demurrer
A. The A mended P etition Does Not and Cannot State a Cause ofAction Against President O b a m a or Vice President Biden.
A lthough P resident O bama and Vice P resident Biden are named as R espondents, the F A P
now here seeks any relief as to either. Rather, it prays only for a writ to enjoin Secretary Bowen,
Respondent California Electors, and "future C alifornia Electors" from performing a variety of
ministerial tasks. In light of the absence of any prayer for relief directed to the President or the Vice
P resident, it should com e as no surprise that the F A P also does not allege that they have failed to
discharge any mandatory duty. T h e F A P contains only tw o oblique assertions of presidential or
candidate duties, each unadorned by citation of legal authority. (F A P ffl[ 63 ( "OBAM A has failed
to demo nstrate that he is a 'natural born' citizen."), 68("It is incumbent on the candidates to present
the necessary documentation confirming his or her eligibility, but, to date, for this past election,
O B A M A has failed to do so.").) T his is plainly insufficient to satisfy even the m ost basic pleading
standards for obtaining a writ of mandate. S an Diego C otton C lub v. S tate Ed . of E qualization, 13 9
Cal. App. 655, 65 8 (1934) ("To furnish any basis for the relief sought the petition for a writ of
mandate must show on its face that the respondents are under some duty to d o w hat the petition asks
that they be required to do.").
Respondents pointed out this fundamental deficiency in the original P etition. No thing in the
F A P app ears even to attempt to cure the deficiency.
Because the FA P fails to show any duty on the part of President Obama or V ice President
B iden, it should be dismissed as to both.
B. The Amended Petition Does Not and Cannot Statea Cause of A ction Against theCalifornia Electors.
1. The C alifornia Electors H ave No Judicially-E nforceable D uty toCon du c t an Investigation of a Presidential Candidate's Qualificationsfo r Office.
T h e F A P cites as a statutory basis for the claimed duty on the part of the fifty-five California
E lectors, S ection 8 of T itle 3 of the U nited S tates C ode, w hich provides in full: "The electors shall
vote for President and V ice P resident, respectively, in the manner directed by the C onstitution." 3
U .S.C . § 8 (2008). P etitioners assert that "[t]his federal statute confers upon each elector an
affirmative duty to discover whether the candidate for President for which the elector is seeking
M E M O O F P O I N T S & A U T H O R I T I E S I S O D E M U R R E R T O F I R S T A M E N D E D P E T I T I O N F O R W R I T O F M A N D A T E
8/14/2019 Keyes v Bowen Memorandum Points Authorities Support Obama Demurrer
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 thevotes, not the
manner in which electors may decide (or be compelled) to cast a vote for one or another candidate.
There are only two provisions of the Constitution that refer to the manner in which electors are to
vote. Article II, Section 3 specifies where electors are to meet and how their ballots are to be cast,
transmitted to the President of the Senate, and counted. And the Twelfth Amendment, proposed by
the Eighth Congress in 1803 following the Jefferson-Burr Electoral College tie in 1800, superseded
Article II, Section 3 by providing for separate designation of votes for President and Vice President.
Sections 1 through 21 of Title 3 of the U.S. Code were enacted in 1947, 62 Stat 674, with this
history in mind. Indeed, Section 8, on which Petitioners rely, refers explicitly to the electors voting
for President and Vice President "respectively," an apparent reference to this history. No provision
of the Constitution suggests any procedure by which the electors are required to conduct an
investigation into the subject of their votes or to "discover whether the candidate for President... is
a 'natural born' citizen." (FAP \ 72.)
On the contrary, California Electors have no discretion whatsoever. California, like many
other states,2
requires its electors to vote for their party's nominee. Cal. Elec. Code § 6906 (West
2008) ("The electors ... shall vote by ballot for that person for President and that person for Vice
President of the United States, who are, respectively, the candidates of the political party which they
2At 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 andRecords Administration, Federal Register, U.S. Electoral College, W h a t is the Electoral College?State Laws and Requirements, http://www.archives.gov/federal-register/electoral-college/laws.html(last visited Dec. 31,2008).
M E M O O F P O I N T S & A U T H O R I T I E S I S O D E M U R R E R T O F I R S T A M E N D E D P E T IT I O N F O R W R I T O F M A N D A T E
8/14/2019 Keyes v Bowen Memorandum Points Authorities Support Obama Demurrer
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,
byRepresentative 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
theattempt 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
designation of their nominee with" the Secretary of State. (FAP ^ 79.) Rather, the statute says that
each nominator "shall file [the nominee's] name, residence and business address with the Secretary
of State." Cal. Elec. Code § 7100 (West 2008). In other words, the statute requires that the
nominating information be provided to the Secretary of State, not the nominating document itself,
asPetitioners would have it. Nor, asPetitioners would have it, is the CDP properly a stranger to this
process. On the contrary, the Elections Code specifically contemplates that the "political party, in
accordance with Section 7100,... submits to the Secretary of State its certified list of nominees."
Cal. Elect. Code § 6901 (West 2008). Thus, as shown in the case of Ms. Haber, the nominators
discharged their duty by sending the CDP their designation and relying on it to file that information
3Pursuant to California Evidence Code section 452, Respondents President Obama, Vice
President Biden and Californiaa'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 GovernorArnold Schwarzenegger, pursuant to California Elections Code section 15505, stating that "theDemocratic candidates for Electors of President and Vice President received the highest number ofvotes" and that "said Democratic candidates were fifty-five (55) in number," and attaching the listof said Electors (RJN Exhibit A); (2) a copy of a portion of the "Statement of Vote" from SecretaryBowen for the November 4, 2008 general election, which states on page 15 that Secretary Bowencertified the election results on December 13, 2008, and includes on pages 16-22 the Californiaelection 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 withSection 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 ofTitle 3 of the United States Code, and which is dated December 15, 2008, as required by Section 7of Title 3 of the United States Code (RJN Exhibit D); and (5) a copy of the "2008 ElectorAppointment Form" from Representative Howard L. Berman, by which Representative Bermandesignated Ilene Haber as a 2008 Presidential Elector for California in accordance with sections 6901and 7100 of the California Elections Code (RJN Exhibit E).
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M E M O O F P O I N T S & A U T H O R I T I E S I S O D E M U R R E R T O F I R S T A M E N D E D P E T I T I O N F O R W R I T O F M A N D A T E
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6The Secretary of State's responsibilities are stated in California Elections Code Section
76901, which provides in full:
8Whenever a political parry, in accordance with Section 7100, 7300, 7578, or 7843,
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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.
C. The Amended Petition Does Not and Cannot State a Cause of
submits to the Secretary of State its certified list of nominees for electors of Presidentand Vice President of the United States, the Secretary of State shall notify eachcandidate for elector of his or her nomination by the party. The Secretary of Stateshall cause the names of the candidates for President and Vice President of the
several political parties to be placed upon the ballot for the ensuing general election.
Her duty thus is simply to place on the ballot the names of the candidates submitted to her by a
recognized political party—in the case of the Democratic Party, the names submitted in accordance
with section 7100 of the California Elections Code. She has no discretion to overrule the party's
selection of apresidential candidate. Nor should she. Thepresidential nominating process cannot
be made subject to each of the fifty states' election officials independently determining whether a
nominee is qualified.
It may be the case that the Secretary of State has some discretion in placing a name on the
primary election ballot. That placement is governed by California Elections Code section 6041,
which authorizes the Secretary of State to determine whether or not to include a potential candidate.
SeeCal. Elec. Code §6041 (West 2008) ("The Secretary of State shall place thename of a candidate
upon the presidential primary ballot when he or she has determined that the candidate is generally
advocated for or recognized throughout the United States or California as actively seeking the
nomination of the Democratic Party for President of the United States."). But no such discretion
exists for the general election. To the contrary, California Elections Code section 6901, which is
quoted above, mandates that the Secretary of State place the names selected by the political parties
on the general election ballot. The differences between sections 6041 and 6901 make it clear that
the Secretary of State has no discretion to refrain from placing a party's nominee on the general
M E M O O F P O I N T S & A U T H O R I T I E S I S O D E M U R R E R T O F I R S T A M E N D E D P E T I T I O N F O R W R I T O F M A N D A T E
8/14/2019 Keyes v Bowen Memorandum Points Authorities Support Obama Demurrer
election ballot. H er mandatory duty was toplace the name of Barack O bama on the ballot.
Again, these infirmities in the original Petition were cited in Respondents' Demurrer.
Petitioners have done nothing in the FAP to cure them.
II. State Courts Have No Jurisdiction over the Qualifications of the President orVice President
State courts have no jurisdiction over any aspect of the process into which Petitioners seek
to inject this Court. Federal law establishes the procedure for election of the President and Vice
President and provides the exclusive means for challenges to their qualifications. It specifies that
the electors shall meet on the first Mondayafter the second Wednesday in December, 3 U.S.C. § 7,
for their votes to be certified and transmitted to the President of the Senate, 3 U.S.C. §§9-11, who
receives and causes the votes to be counted before ajoint session of Congress on January 8,3 U.S.C.
§ 15, as modified by Pub. L. No. 110-430, § 2,122 Stat. 4846 (2008).
[Tlhe votes having been ascertained and counted. .. , the result of the same shall bedelivered to the President of the Senate, who shall thereupon announce the state ofthe vote, which announcement shall be deemed a sufficient declaration of thepersons, if a n y , elected President and Vice President of the UnitedStates,... Uponsuch reading of any such certificate or paper, the President of the Senate shall call forobjections, if any. Every objection shall be made in writing, and shall state clearlyand concisely, and without argument, the ground thereof, and shall be signed by atleast one Senator and one Member of the House of Representatives before the sameshall be received. When all objections so made to any vote or paper from a State shallhave been received and read, the Senate shall thereupon withdraw, and suchobjections shall be submitted to the Senate for its decision; and the Speaker of the
House of Representatives shall, in like manner, submit such objections to the Houseof Representatives for its decision;...
19Id. (emphasis added). Of course, on January 8, 2009, the then-Vice President made the requisite
20declaration of the election of Barack Obama and Joe Biden as President and Vice President. 155
21Cong. Rec. H76 (daily ed. Jan. 8, 2009). That was "deemed a sufficient declaration" of their
22election, in the absence of objections filed bymembersof the Senate and House of Representatives,
23which would have been be resolved by those bodies. There being no such objections, the President
24and Vice President were duly inaugurated. (FAP 163.)
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M E M O O F P O I N T S & A U T H O R I T I E S I S O D E M U R R E R T O F I R S T A M E N D E D P E T I T I O N F O R W R I T O F M A N D A T E
8/14/2019 Keyes v Bowen Memorandum Points Authorities Support Obama Demurrer