Philip J Berg files opposition and brief, Obama motion to dismiss, September 29, 2008, Berg response, Pre filing analysis, Jeff Schreiber
Philip J Berg is filing a opposition and brief to the Obama motion to
dismiss his lawsuit. Mr. Berg makes the filing today, Monday, September 29,
2008. Obama filed the motion to dismiss instead of producing a vault
COLB or pledge of allegiance to the US.
Jeff Schreiber has reviewed a draft of the response. Here are exerpts from Mr. Schreiber:
“Among other authority cited by Obama and the DNC in support of the first defense was Hollander v. McCain, a recent case from New Hampshire in which the court held that Fred Hollander, asserting the claim that Arizona Sen. John McCain was ineligible for the presidency based upon his birth in the Panama Canal Zone, lacked standing to sue. In that case, the court cited several factors in its decision:
Regardless of McCain’s eligibility for the presidency, his candidacy did not constitute a “restriction on voters’ rights” as it did not preclude Hollander or anyone else from voting for another candidate in the New Hampshire primary.
The “generalized interest of of all citizens in constitutional governance” was not enough to claim harm.
Hollander failed to allege that any harm was indeed proximately “traceable” to McCain’s alleged unlawful conduct.
McCain was “unquestionably an American citizen.”
Berg is quick to distinguish Hollander. First, he says, Obama’s candidacy for the presidency in the general election prevents citizens from voting for Hillary Clinton despite her 18 million votes received in the primary election. Second, the harm Berg suffered is particular to him because he has been denied the constitutional right to cast his ballot for an eligible candidate. Third, his claims of injury can indeed be traced to Obama’s unlawful behavior, his “failure to disclose information to which American voters are entited.” And finally, the defendants have failed to show, as mentioned by the New Hampshire court in Hollander, that Sen. Obama is “unquestionably an American citizen.”
“If you take a closer look at the factors used by the court to decide Hollander v. McCain,” Berg said, “Those very same factors clearly come down in favor of me having standing in this case.””
“Interestingly enough, Berg also cites a case I had brought to his attention and asked him about, something we had read in school a while ago. Though Federal Election Commission v. Akins was a case which has nothing to do with citizenship–it questioned whether or not the American Israel Public Affair Commitee (AIPAC) could be considered a “political committee” under the Federal Election Campaign Act–the thing that struck me about it was the Court’s treatment of the plaintiffs. The Court, in that case, was concerned with “informational injury.” When the U.S. Court of Appeals for the District of Columbia Circuit reversed the trial court’s dismissal of the plaintiff’s action, the court stated the following:
A voter deprived of useful information at the time he or she votes suffers a particularized injury in some respects unique to him or herself just as a government contractor, allegedly wrongfully deprived of information to be made available at the time bids are due, would suffer a particularized injury even if all other bidders also suffered an injury.
Berg insists that he has similarly suffered an “informational injury” as a voter, and cites another part of the D.C. Circuit’s opinion which mentions that “anyone denied information under the Freedom of Information Act … has standing to sue regardless of his or her reasons.””
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