“Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.”

“If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.”

Chief Justice Marshall opinion, Marbury Vs Madison

Donofrio versus Wells is before all nine Justices of the US Supreme Court
and it is expected that they will decide by Monday morning, December 8,
2008 whether or not they will accept the case for a possible opinion or ruling.
The Leo Donofrio case is based on the natural born citizen provision of the
US Constitution and the failure of New Jersey Secretary of State, Nina Wells to ensure
that Barack Obama is qualified under that provision. Having the US Supreme
Court give serious consideration to this case and uphold the US Constitution
is of utmost importance. However, this case demands attention to other
aspects of upholding the Constitution and clarifying duties that may in the
long term have more far reaching consequences. Here are three distinct
aspects of the Donofrio case that must be addressed and clarified by the
US Supreme Court Justices:

• The Natural Born Citizen provision of the US Constitution as applicable to the 2008 election.
• The powers given to state officials in the election process and inherent duties to uphold the
  US Constitution and Federal Election Laws.
• The oath of office taken by federal and state officers, election officials and judges and the
  duty to uphold the US Constitution.

Not addressed specifically in the Donofrio lawsuit and therefore
not before the US Supreme Court, but a matter of much confusion,
is the statutes in some of the states and pledges by some
political parties to dictate how Electoral College Electors must
vote. This violates the letter and spirit of constitutional law
and the intent of the founding fathers to give carefully chosen
Electors the leeway to make wise choices.

Here is the basis in fact of Leo Donofrio’s lawsuit:

“On October 27, 2008, plaintiff-appellant, Leo Donofrio, a retired attorney acting Pro Se, sued Nina Mitchell Wells, Secretary of State of the State of New Jersey, in the Superior Court of New Jersey, Appellate Division, demanding the Secretary execute her statutory and Constitutional duties to police the security of ballots in New Jersey from fraudulent candidates ineligible to hold the office of President of the United States due to their not being “natural born citizens” as enumerated in Article 1, Section 2, of the US Constitution.”

“The cause of action first accrued on September 22, 2008, when Secretary Wells certified to county clerks, for ballot preparation, a written “statement”, prepared under her seal of office, that was required by statute to contain names of only those candidates who were “by law entitled” to be listed on ballots in New Jersey.  The statement is demanded by N.J.S.A. 19:13-22.

The law suit raises a novel contention that the statutory code undergoes legal fusion with the Secretary’s oath of office to uphold the US Constitution thereby creating a minimum standard of review based upon the “natural born citizen” requirement of Article 2, Section 1, and that the Supremacy clause of the Constitution would demand those requirements be resolved prior to the election.

The key fact, not challenged below, surrounds two conversations between the plaintiff-appellant and a key Secretary of State Election Division official wherein the official admitted, twice, that the defendant-Secretary just assumed the candidates were eligible taking no further action to actually verify that they were, in fact, eligible to the office of President.  These conversations took place on October 22nd and 23rd.”

“Now, post-election, plaintiff is seeking review by the United States Supreme Court to finally determine the “natural born citizen” issue. Plaintiff alleged the Secretary has a legal duty to make certain the candidates pass the “natural born citizen” test.  The pre-election suit requested that New Jersey ballots be stayed as they were defective requiring replacements to feature only the names of candidates who were truly eligible to the office of President.”

Here are the three distinct aspects of Donofrio’s lawsuit that should be reviewed and clarified
by the US Supreme Court Justices:

The Natural Born Citizen provision of the US Constitution as applicable to the 2008 election.

Leo Donofrio states:

“Don’t be distracted by the birth certificate and Indonesia issues. They are irrelevant to Senator Obama’s ineligibility to be President. Since Barack Obama’s father was a Citizen of Kenya and therefore subject to the jurisdiction of the United Kingdom at the time of Senator Obama’s birth, then Senator Obama was a British Citizen “at birth”, just like the Framers of the Constitution, and therefore, even if he were to produce an original birth certificate proving he were born on US soil, he still wouldn’t be eligible to be President.”

Read more from Leo Donofrio

The powers given to state officials in the election process and inherent duties to uphold the
US Constitution and Federal Election Laws.

There is much confusion and misunderstanding about the duties and powers of state officers and election
officials involved in presidential elections.

Read more here

The oath of office taken by federal and state officers, election officials and judges and the
duty to uphold the US Constitution.

From the opinion by Chief Justice Marshall on Marbury Vs Madison:

“The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on the subject. It is in these words, “I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States.”

Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him?

If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.”

For the Justices of the US Supreme Court to disregard this important
lawsuit by Leo Donofrio, I am certain that all nine Justices would
violate their oath to uphold the US Constitution and duty to review,
consider and clarify the important principles outlined above. We are
accountable not only to uphold  the US Constitution and rule of law
in regard to the 2008 election, but the future integrity of the
Constitution, our system of checks and balances and stability of our
government. I strongly urge the Supreme Court Justices to help keep
our Constitution and government intact.

 
“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”

Chief Justice Marshall opinion, Marbury Vs Madison