Home Uncategorized Ninth Circuit Slipshod Opinion Upholds California Secretary of State’s 2012 Decision to Bar Peta Lindsay from Peace & Freedom Party Primary Ballot
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Ninth Circuit Slipshod Opinion Upholds California Secretary of State’s 2012 Decision to Bar Peta Lindsay from Peace & Freedom Party Primary Ballot

On May 6, the Ninth Circuit issued a six-page opinion in Lindsay v Bowen, 13-15085, that manages to obscure, rather than illuminate, the issue of when and how a state election official can determine the constitutional eligibility of presidential candidates. The decision upholds the Secretary of State’s decision to bar one of the Peace & Freedom Party’s presidential candidates from the party’s presidential primary.

In 2012, the Peace & Freedom Party submitted a list of presidential candidates for placement on the party’s presidential primary ballot. The Secretary of State refused to list Peta Lindsay because she was under age 35. There is no California statute that gives the Secretary of State any authority to decide which presidential candidates are constitutionally eligible. There was no declaration of candidacy for Lindsay or any other presidential candidate to sign.

During 2008 and 2012, when challenges to the eligibility of John McCain and Barack Obama were made, the California Secretary of State said that she had no authority to evaluate the constitutional qualifications of presidential candidates. The only distinction made in the Ninth Circuit opinion between those instances, and the Lindsay instance, is that Lindsay admitted she didn’t meet the constitutional qualifications. One wonders, then, how the case would have turned out if Lindsay had insisted that she was old enough. One wonders if the Secretary of State would have accepted her claim at face value, or whether the Secretary of State would have sought Lindsay’s birth certificate.

The opinion makes no reference to Fuller v Bowen, in which the State Court of Appeals ruled that candidates for the legislature cannot be barred from the ballot even if they admit they don’t meet the constitutional qualifications. In that case, candidates who admitted they didn’t comply with the state constitutional residency requirement for legislature (a one-year duration of residency requirement) still were allowed on the ballot.

At the Ninth Circuit hearing, one of the judges asked the attorney for the Secretary of State how the Secretary knew that Lindsay was under age 35. The response was that the Secretary of State, or one of her employees, happened to see a newspaper story that mentioned her age.

24 Responses

  1. Mark Seidenberg

    John McCain III was born in the Republic of Panama. His parents
    were not lawfully married in Mexico. Therefore, he was not
    included in the 1937 collective naturalization act, because his
    mother at the time of his birth was neither employed by the U.S.
    Government or the Panama Rail Road Company (or it successor.)

  2. HaroldBlair

    so what happened to the biggest FRAUD in history (Obama) who FORGED his birth certificate and was an Indonesian Citizen? and hid his past history at the cost of millions? the problem with America is that our judges & politicians can be bought so easily- Russia proved that COMMUNISM doesn’t work and the USA has proved that DEMOCRACY doesn’t work either- but only if honest people run a country can a system work-and our politicians are totally corrupt-

  3. DSP2

    Dear Trey Gowdy,

    You can bypass a long investigation and the folly of impeachment
    by simply issuing a subpoena for Harrison Bounel’s SS5 social security
    application in Baltimore being hidden by Judge Ellen Hollander. Do it. “Obama ” Barry Soetoro used Harrison Bounel’s social security number 042-68-4425. The fraud was clearly ineligible

  4. bob

    Y’all do know this case was about Peta Lindsay, and not John McCain or Barack Obama, right?

    • bo jackson

      it’s related to obama because several other cases have maintained that the SOS can not declare candidate’s ineligible, despite state laws that state that they do have the power to do so and despite the fact that SOS HAVE exercised this authority in the past. Now they are trying to hide because they are democrats who did not do their civic duty in name of power and party.

      typical neofascist behavior , typical .

      • Harold

        I did not vote for Bush & do not consider myself a REPUBLICAN but the entire DEMOCRATIC party is totally corrupt to the last man (& woman)

        • TruFoe

          I demand to see a certified copy of your presidential ballots for both 2000 and 2004.

          And long form, please.

      • bob

        @bo:

        The 9th Circuit’s decision squarely addressed this: “The Secretary does not violate the Equal Protection Clause by excluding from the ballot candidates who are indisputably ineligible to serve, while listing those with a colorable claim of eligibility. Because those two groups stand on a different footing, the Secretary is entitled to exclude the former while including the latter.”

        • Birdy

          Do you consider reading something in an article in a newspaper as indisputable proof that someone is ineligible?

          • bob

            Lindsay repeatedly admitted she was under 35 and therefore ineligible.

          • buduh

            If Lindsay repeatedly said she was older than 21 would the liquor store owner have to accept it as gospel, or should he see her ID?

          • bob

            A more apt analogy: If the liquor store owner asked Lindsay if she was over 21 and she said, “no,” could the owner legally sell her alcohol?

        • buduh

          Lindsay is a credible witness half the time?

          • bob

            What point are you trying to make?

            It was undisputed that Lindsay was under 35. She never claimed she was over 35.

  5. George Knightley

    I’m glad these comments promoted an intelligent and thoughtful debate about election law rather than turn into a bunch of conspiracy theories.

    “The main thing that I learned about conspiracy theory, is that conspiracy theorists believe in a conspiracy because that is more comforting. The truth of the world is that it is actually chaotic. The truth is that it is not The Iluminati, or The Jewish Banking Conspiracy, or the Gray Alien Theory. The truth is far more frightening – Nobody is in control. The world is rudderless.”

  6. It was my understanding that McCain was born at a military base outside the country … that means he was born in America as our posts all fly under our flag and are considered part of our country. There was never an issue about McCain – it is used only to hide the current issue we all face.

    • Stock

      There was an issue-that’s why the Senate made up SR511 which gave McCain cover in the deal to not challenge Obamas legitimacy or investigate him as they had done to McCain.

  7. Thomas

    The United States Government (ALL 3 Branches) is More Corrupt Than The Mafia of Days Past. You get These Politicians saying They Are Going To Start An “Investigation” on Another Or An Agency… Government Investigating Government DOES NOT WORK!
    Their is Only ONE Branch of Government Anymore, And All It Cares About IS : Money and Power !!!
    You, John & Jane Doe No Longer Have A Redress of Grievance, Politicians DO NOT Want To Hear From Us Little People After They Get Elected. America Is Gone, And Their Is Very Little Chance She Will Ever Be Coming Back.

  8. TruFoe

    Unmanned drones are putting Colorado potato beetles into my vegetable garden and giving my vision floaters, and it’s all the fault of the Democrat/Socialist/Communist/Big Eared/Fascist/Vegetarian/Jay Walking/Nazi/Kenyan/Hun/Ni-grah in the White House.

    And did I mention he’s a Ni-grah?

    I rest my case.

  9. The contrast between Fuller v. Bowen and Lindsay v. Bowen shows that there is a basic problem with the amount of discretion given to the Secretary of State under California law. It would be difficult not to engage in viewpoint discrimination in the course of exercising it. Regardless of whether this or any other case is rightly or wrongly decided, the state legislature needs to clarify the Secretary of State’s authority and responsibility.

    • bob

      Fuller dealt with a different situation. In Fuller, the California Court of Appeal ruled that Article IV, section 2, subdivision (c) of the California Constitution gives the state legislature the sole authority to determine the eligibility of its members. Lindsay wasn’t running to become a member of the California legislature.

  10. buduh

    Issues that are not in dispute go to the Ninth Circuit?

    • bob

      The Secretary of State argued she had the inherent authority to bar from the ballot a facially ineligible candidate. Lindsay disagreed, and demanded to be placed on the ballot, notwithstanding her undisputed ineligibility.

      The district court and the 9th Circuit agreed with the Secretary of State.

  11. Jim Riley

    The California Constitution explicitly provides a role for the Secretary of State in determining which candidates are placed on the election ballot.

    The California Constitution explicitly provides that each house of the legislature shall determine the qualifications of its members.

    You need to re-read Fuller v Bowen again. The court of appeals determined that the issue of qualification for the legislature was not a matter to be determined by the judiciary.

    Whether or not Tom Berryhill admitted that he met the district residency requirement is as relevant as if the moon were made of green cheese.

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