The Corner

If The Birthers Were Right

From a reader:

I would like to take exception to your conclusion that if Barrak Obama were found to constitutional ineligible to serve as President the result would be a Biden presidency.  The Electors in the electoral college cast one ballot for both President and Vice President.  If Obama is constitutional ineligible to serve as President, then the ballots cast for him are void and invalid and must be disregarded by the Senate.  This would also make the ballots void and invalid for Joseph Biden for Vice President since the President and Vice President are elected together.  Once the Obama/Biden ballots are disregarded, the winners of the election, which takes place in the Senate where the votes from the Electoral College are counted, would be John McCain as President and Sarah Palin as Vice President. 


Moreover, since Obama would legally never have been President, everything he purported to do as President would be a nullity, including signing Obama Care into law and nominating two people to the U.S. Supreme Court.

I dunno, that sounds like the makings of a constitutional crisis to me.

Update: From another reader:

Jonah, the subject sums it up. The idea that the entire ballot paper would be thrown out because one of the votes is invalid is facially absurd. Suppose you went down to vote at an election, lots of races on the ballot, and you accidentally missed the mark on your ballot paper (because you’re tired of making marks) such that your vote can’t be determined and is thus invalid. Is your entire ballot paper thrown out? No.

The President and Vice President, while elected simultaneously, are not elected together. That’s like suggesting that my state senator and state delegate are elected together. They’re on the same ballot paper, yes; but it’s two distinct races. It may even be two distinct ballot papers – having never been an elector, I can’t say, but Amendment XII says that the electors “shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President…”

ASSUME HOWEVER (because we like fun hypotheticals) that the votes for Obama had been eliminated during the counting of the votes. Would John McCain be President because he got the most electoral votes? Not exactly. Amendment XX states: “If the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified.” So Biden, right? But Amendment XII reads: “The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.”

So, McCain would not have “a majority of the whole number of Electors appointed” – but the House would then have to choose between the top three votegetters. But, there’s only John McCain. So would he be President then? No. Amendment XII goes on to countenance the possibility that the House would “not choose a President whenever the right of choice [should] devolve upon them.” In that instance, “then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.” We can safely assume that the Democratic-controlled House would simply refuse to choose and thereby make Joe Biden the President.

The bottom line: your reader needs to read the rest of the Constitution.

And, From another reader:


Your e-mailer is obviously drinking from the birther fountain when they suggest somehow that Obama’s secret birth in Kenya would undo the election and undo all acts by Obama since becoming President.  I think other lawyers have dealt with this theory in much more detail elsewhere, but assuming some legitimate tribunal (Congress or SCOTUS) would make a finding that Barack Obama was constitutionally ineligible to be President based on his place of birth, I do not think it would render void his acts as president.  There have been in other contexts executives, judges and other public officials removed for lack of eligibility in the past, and I do not think this has ever resulted in their actions being ex post facto nullified. Since Obama’s election as President by the Electoral College was approved by Congress as specified in the Constitution his acts within that Constitutional office would be accepted as if he were George Washington.  This is different than a constitutional officer acting outside his powers.  For example a county commission chairman exercising unconstitutional authority over a school district or a probate judge sentencing someone to death etc.  Generally speaking the constitutionality of an act of an official is determined by the constitutional powers of the office, not the person who happens to be holding that office.   This makes sense for many reasons.  Let’s say going through my dead grandmother’s attic I find incontrovertible proof that Ronald Reagan was actually Nikolae Trotsky, Trotsky’s lost son born in St. Petersburg, Russia, would every act he took as President suddenly go away?  This owuld not make sense, and neither does your emailer…

[Name withheld]


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