Legal Commentary

One key to teaching procedural classes is to get students thinking about how to frame litigation when it is brought, incorporating all the doctrines and rules that we have been drilling into them. A good new example is Berg v. Obama, the lawsuit filed by a Pennsylvania lawyer to stop Barack Obama from being elected President on the ground that Obama is not a natural-born citizen. The lawsuit was dismissed last week, correctly, for lack of standing.

But let's assume Berg had standing to challenge the deprivation of his constitutional right to vote for an eligible presidential candidate (since many commentators have derided the use of standing as a dodge by Obama and the courts). It is worth thinking about how one could go about bringing such a lawsuit--whom to sue for what claims and what relief. Berg's initial strategy was to sue Obama, the DNC, and the FEC--and only the latter two were targeted on the constitutional claims. The big problem (mentioned, but under-analyzed in the opinion) was that neither Obama nor the DNC is a state (or federal) actor, at least not for purposes of running for election. Moreover, I do not see how, even if a court were to find that Obama is ineligible for the presidency, the court could enjoin Obama from running for president. Enforcement of the prohibition on a non-natural-born citizen becoming President does not rest with the non-natural-born citizen--it is not a constitutional obligation to refrain from trying to become President. It is a duty on the federal and state government officials who control the machinery not to allow him to be selected as President or to take the oath and assume the office. It is true that, in any suit against some state or federal electoral official, Obama would intervene as a defendant under FRCP 24 to protect his interests. But that is different than making him a party in the first instance and having the injunction run against him.

So who should Berg have sued? Let's have some fun. My thanks to my colleague Tom Baker, who wasted fifteen minutes talking through this with me.

The obvious target should have been the Pennsylvania Secretary of the Commonwealth, the executive-branch official responsible for overseeing state elections, including determining ballot eligibility. An injunction could prevent the Secretary from allowing Obama on the ballot or, given the late date, from certifying Obama as the winner of the state popular vote, because doing so would violate the Eligibility Clause, thus violating Berg's right. Actually, Berg named the Secretary, Pedro Cortes, in the Amended Complaint, but Cortes had not been served as of the date of the dismissal.

Of course, that only makes Obama unable to run or win in Pennsylvania. And the electoral map is such that Obama could become President even without winning Pennsylvania. So Berg would have to bring suits in all 50 states and the District of Columbia against the Secretary of State in each state. But Berg would lack standing in any state other than Pennsylvania; he cannot vote in any other state, thus he has not been deprived of his right to vote for an eligible candidate in any other state. So Berg would need to find a voter in every other state who would be willing to sue the Secretary of State in each of these other states. And perhaps the Pennsylvania decision would have a persuasive effect, if not an outright preclusive effect, in the later cases.

Well, OK. What if Berg wants to assert not his right to vote for an eligible candidate in the Pennsylvania election, but his right not have an ineligible person become President, assuming, of course, that Obama wins 270 EC votes-worth of state popular elections (and still putting standing to one side)? Now Berg must enjoin the people in the federal government who would make Obama President. It seems to me Berg might have three options. First, he could try suing the 538 electors (or at least those committed to Obama/Biden) who will "meet" and vote on December 15. But I simply cannot imagine a judge enjoining electors from voting a certain way. It seems like that would create a massive separation-of-powers problem, akin to ordering legislators to vote a certain way, something courts generally are not willing or able to do. Second, he could try enjoining the House of Representatives from certifying the Electoral College results. But this unquestionably would be barred by Speech or Debate Clause immunity. Finally, he could sue Condi Rice, the U.S. Secretary of State, to enjoin her from certifying the results of the House vote accepting the EC results selecting Obama. That, it seems to me, is the only possible way to go.

And just to add three more wrinkles. First, none of the actions described in the previous paragraph would be ripe at this point The need to stop the federal apparatus from recognizing Obama as President and allowing him to take the Oath of Office (or, put another way, Berg's right to have the apparatus not recognize an Obama victory or allow Obama to take office) is not triggered prior to Election Day and Obama actually winning 270 EC votes-worth of popular elections. Second, the political question doctrine would block any injunction from issuing, since the question of eligibility seems to be textually committed to Congress. Of course, if we are going to recognize citizen.ideological standing, we may as well eliminate the political question doctrine.

Third, what would happen if, say, Rice were enjoined from recognizing a House certification of Obama as President? Come January 20, we would have a President who has failed to "qualify," and Joe Biden would become acting president under the Twenty-second Amendment.

All this is my way of saying that, even if Berg did not lack standing, a combination of the limits of the judicial process and our byzantine, multi-layered system for selecting a President makes judicial resolution of this matter virtually unworkable.

Did I miss any other steps that Berg might have taken? Any other bizarre twists that I missed?