OFFICE OF STATE ADMINISTRATIVE HEARINGS
STATE OF GEORGIA
DAVID P. WELDEN :
:
Plaintiff :
:
v. : Docket Number: OSAH-SECSTATE-CE-
: 1215137-60-MALIHI
BARACK OBAMA :
:
Defendant :
:
MOTION TO DISMISS
President Obama asks for dismissal of this attempt to deprive the Democratic Party of Georgia of its statutory right to name candidates to the Presidential Preference Party held to apportion Georgia's delegates to the Democratic National Convention. No provision of Georgia law authorizes a challenge to a political party's identification of names it wishes its members to consider in a preference primary for purposes of apportioning delegates to its National Convention. The Democratic Party of Georgia properly identified Barack Obama as a candidate to whom National Convention delegates will be pledged based upon votes in the preference poll. Georgia law does not authorize the Secretary of State to exercise any discretion or oversight over the actions of a political party participating in a preference primary. Indeed, any review by the guaranteed buy the First Amendment of the United States Constitution
Statement of Facts
Relevant facts are not in dispute. The Democratic Party of Georgia, a political party as defined by O.C.G.A. § 21-2-2(25), participates in the Georgia Presidential Preference Primary "so that electors may express their preference for one person to be the candidate for nomination ... for the office of President of the United States." O.C.G.A. § 21-2-191. The Georgia Democratic Party apportions delegates to the National Convention based upon the relative performance of different people named on the ballot.
The Democratic Party of Georgia submitted the name of Barack Obama to the Georgia Secretary of State on November 1, 2011. Berlon aff., 8. No one voiced any objection to President Obama's qualification for the office when the matter was considered by the Executive Committee of the Democratic Party of Georgia. Berlon aff.,7·
Argument and Citation of Authority
Georgia law does not authorize interference with a
political party's Presidential Preference Party designation.
The Secretary of State's involvement in the Presidential Preference Primary process, other than conducting balloting, is limited to receiving names submitted by political parties for inclusion in the preference primary, publishing the submitted names on a website, and including the names on the ballot. O.C.G.A. § 21-2-193. The Presidential Preference Primary statute does not empower the Secretary of State to review submissions of names by political parties. The name of Barack Obama was timely submitted by the Democratic Party of Georgia and announced on the Secretary of State website. The Secretary of State must include the name on the primary ballot as all prerequisites to inclusion have been met.
political party's Presidential Preference Party designation.
The Secretary of State's involvement in the Presidential Preference Primary process, other than conducting balloting, is limited to receiving names submitted by political parties for inclusion in the preference primary, publishing the submitted names on a website, and including the names on the ballot. O.C.G.A. § 21-2-193. The Presidential Preference Primary statute does not empower the Secretary of State to review submissions of names by political parties. The name of Barack Obama was timely submitted by the Democratic Party of Georgia and announced on the Secretary of State website. The Secretary of State must include the name on the primary ballot as all prerequisites to inclusion have been met.
The plaintiff journeys beyond the Presidential Preference Primary statute (Title 21, Chapter 2, Article 5) to pluck a provision from Article 1dealing with elections as the basis for a challenge. O.C.G.A. § 21-2-5 does not apply to the Presidential Preference Primary because the preference primary is not an election: by its terms, the preference primary is simply an opportunity for electors "to express their preference for one person to be a candidate for nomination." O.C.G.A. § 21-2-191. No one is elected, or even nominated, in the preference balloting Berlon aff. s.
O.C.G.A. § 21-2-5 employs terms specific to elections that have no applicability to preference primaries. Its applicability is triggered when a candidate is "certified by the state executive committee of a political party or ... files a notice of candidacy." O.C.G.A. § 21-2-s(a). A notice of candidacy is not necessary for the preference primary. The certification of candidates by a party executive committee refers to the qualification procedure in O.C.G.A. § 21-2-154(a) and the payment of qualifying fees. A different procedure applies to the preference primary because it is not an election. For example, the Election Code requires payment of qualifying fees or the use of an elaborate be charged for listing a name on the preference ballot. O.C.G.A. § 21-2-198. There is no qualifying nor does a political party file a certification of its qualified candidates, as it would in an election. See, O.C.G.A. § 21-2-154. The state executive committee simply lists names that it wishes to have on the preference primary ballot. O.C.G.A. § 21-2-193.
The provision invoked by the plaintiff applies to elections where there is a qualification but not to preference primaries that apportion delegates to a nominating convention but do not elect or nominate candidates. The challenge should be dismissed because there is no statutory basis for one.
The Democratic Party of Georgia determines names to include on its Presidential Preference Primary ballot at its sole discretion. O.C.G.A. § 21-2-193. A state political party "enjoys a constitutionally protected freedom which includes the right to identify the people who constitute this association that was formed for the purpose of advancing shared beliefs and to limit the association to those people only." See Democratic Party of U.S. v. Wisconsin, so U.S. 107, 101 S.Ct. 1010, 1019, 67 L.Ed.2d 82 (1981). Duke v. Cleland, 954 F.2d 1526, 1530-1 (11th Cir. 1992). First amendment associational rights of a political party are most often litigated in the context of a party refusing to allow a name to appear on a primary ballot (such as in Democratic Party of U.S. v.Wisconsin or Duke v. Cleland) but the reverse is also true: a political party enjoys the exclusive right to dictate names on its primary ballot. The right to associate not only contemplates the ability to exclude but, necessarily, who to include. The Fourteenth Amendment prohibits the Secretary of State from infringing on associational rights of the Democratic Party of Georgia and its members. Kusper v. Pontikes, 414 U.S. 51, 57, 94 S.Ct. 303, 307, 38 L.Ed.2d 260; Williams v. Rhodes, 393 U.S. 23, 30-31, 21 L.Ed.2d 24. See also, 1488; Ferency v.Austin, 666 F.2d 1023, 1027 (6th Cir., 1981).
Apportionment of delegates as a result of preference primary results constitutes an internal party matter. The Secretary of State, even if believing that the challenger's claims represent a legitimate position, may not interfere with "the traditionally recognized autonomy of the political party's internal decisionmaking." Belluso v. Poythress, 485 F.Supp. 904, 912 (N.D. Ga., 1980); See, Ripon Society v. National
Republican Party, 173 U.S.App. D.C. 350, 525 F.2d 567, 584-86 (D.C.Cir. 1975) (en bane), cert. denied, 424 U.S. 933, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1976).
The internal matter of selecting names to appear on the primary ballot came before the Executive Committee of the Democratic Party of Georgia. The challenger did not raise any of these issues at that time. Berlon aff. 7. His claim that President Obama cannot be named by the party on the Presidential Preference Primary ballot is an internal one of party administration that could have been resolved by approaching the party. The challenger did not do so.
The citizenship issue sought to be litigated by the plaintiff cannot be raised in the context of a party preference primary that exists solely to apportion delegates but neither elects nor nominates. Only the Democratic Party of Georgia can determine qualifications of candidates named on the Presidential Preference Primary ballot. See, Duke v.Cleland, 954 F.2d 1526 (11th Cir., 1992); Belluso v. Poythress, 485 F.Supp. 904 (N.D. Ga., 1980). Furthermore, the citizenship issue the plaintiff seeks to raise was soundly rejected by 69,456,897 Americans in the 2008 elections, as it has been by every Plaintiffs challenge to the qualifications of Barack Obama should be dismissed. This 15th day of December, 2011
The citizenship issue sought to be litigated by the plaintiff cannot be raised in the context of a party preference primary that exists solely to apportion delegates but neither elects nor nominates. Only the Democratic Party of Georgia can determine qualifications of candidates named on the Presidential Preference Primary ballot. See, Duke v.Cleland, 954 F.2d 1526 (11th Cir., 1992); Belluso v. Poythress, 485 F.Supp. 904 (N.D. Ga., 1980). Furthermore, the citizenship issue the plaintiff seeks to raise was soundly rejected by 69,456,897 Americans in the 2008 elections, as it has been by every Plaintiffs challenge to the qualifications of Barack Obama should be dismissed. This 15th day of December, 2011
MICHAEL JABLONSKI
Michael Jablonski
Georgia State Bar No. 385850
260 Brighton Road NE
Atlanta, Georgia 30309
404.290.2977
