Between November 6th, A.D. 2012 (the date of our most recent presidential election) and January 21st, A.D. 2013 (the date of the next President’s inauguration), Barack H. Obama holds two offices. During this 75-day period, Mr. Obama is both:
1) the President of the United States (serving from January, A.D. 2009 through January 21st, A.D. 2013); and,
2) the “President elect” (who will be inaugurated on January 21st, A.D. 2013 to begin his next, four year term of office.)
The 75-day period between the election and the inauguration allows for a fairly smooth transition whenever a current President is replaced by a newly-elected President.
• The 20th Amendment to The Constitution of the United States was adopted on February 6th, A.D. 1933. Section 3 of that Amendment refers to the office of “President elect”:
“If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.”
Thus, it’s apparent that merely winning the November 6th election does not make Mr. Obama our next President. According to the 20th Amendment, the President elect must satisfy some sort of additional qualification procedure before he can be inaugurated on January 21st. (Vice President Biden must also satisfy some sort of pre-inauguration “qualification” procedure.)
Thus, the 20th Amendment allows for the possibility that Americans might someday to have been so damn ignorant that they might have mistakenly elected a man to be our next President who is technically ineligible to be President.
For example, Americans could conceivably have voted to elect Vladimir Putin as our next President. But given that Mr. Putin is already President of Russia, was born in Russia, and isn’t even a citizen of the United States, he’s not eligible to hold the office of President. Still, he is eligible to become the President elect, even though he was not eligible to become the President.
Presumably the qualification process referenced in the 20th Amendment would discover that—OMG!—Mr. Putin is ineligible to be President and therefore the recently-elected Vice President would assume the office of President at the January 21st Inauguration.
But get this: The 20th Amendment clearly implies that there’s a 75-day period between the November election and the January inauguration when the President elect must be “qualified” by some authority as eligible to become the actual President. But, insofar as the qualification process should be applied to the President elect, that constitutional qualification process is only mandated to take place after someone has been elected to later become the next President. This implies that, under the 20th Amendment, the government cannot enforce any qualification requirements on anyone running for President or Vice President until after they’ve been elected.
It’s even conceivable that the only constitutional “window of opportunity” to challenge a person’s qualifications to be President may be during that relatively brief, 75-day period. I.e., you can’t challenge a man’s qualifications to be President while he’s running for office—only during the 75-day interlude between winning the office of President elect and being inaugurated as President.
This conjecture implies that anyone is eligible to run for President and no court may be competent to hear a challenge to any presidential candidate’s qualifications until after he’s become the President elect. If that were true, then any challenge to a presidential candidate’s qualifications might be decided by the voters during the election campaign, but could not be lawfully heard by a court until after the candidate had become the President elect. Thus, if anyone tried to challenge a presidential candidate’s eligibility in court prior to the election, the courts might be forced to dismiss the case for lack of jurisdiction.
Get that? If my reading of the 20th Amendment is roughly correct, you couldn’t mount a successful court-room challenge to a presidential candidate’s eligibility to be President until after he had first been elected to the office of the President elect. More, once the President elect was inaugurated to become the President, you might be again precluded for the remainder of his 4-year term of office from mounting an effective courtroom challenge to his qualifications.
Therefore, as crazy as it seems, under the 20th Amendment, the American people are absolutely entitled to elect Vladimir Putin to the office of “President elect”—but Mr. Putin would presumably be declared “unqualified” during the post-election, pre-inauguration “qualification” process.
In fact, if you wanted to make a really crazy illustration of this hypothesis, we could even elect some black guy from Kenya (hah!) to be the President elect. But, presumably, if our black guy from Kenya was truly ineligible to hold the office of President, he would be disqualified by the pre-inauguration qualification process.
• If it’s true that our only opportunity to mount a court-room challenge to a President elect’s qualifications to be President is during the 75-day period between the November election and the January inauguration, then time’s awastin’.
In fact, it might even be possible and even desirable for a swarm of lawsuits to be filed—some from Texas, some from Minnesota, Florida, Oregon etc.—to challenge the President elect’s qualifications to become the President on January 21st and/or to compel the “qualification” authority to do its job.
It’s even possible that such lawsuits or similar petitions might, by law, have to filed with the qualification authority rather than in the courts. I.e., if no one figures out who/what the qualification authority is, and no one files a proper petition contesting Obama’s eligibility with that authority, it might be presumed by law that the President elect was qualified to become the President.
If I understand correctly, the Electoral College will render its decision as to who actually won the presidency on January 6th. It’s conceivable that the Electoral College is the “qualification authority”. If so, I have no idea on how to approach the Electoral College with petitions alleging Obama’s ineligibility or if such private petitions are even lawful. Perhaps the only procedure is to move the courts to issue a mandamus to the members of each State’s electoral college to compel them to “qualify” Obama for office.
It’s even possible that I’ve misread the 20th Amendment and the only remaining qualification process is simply to count the votes of the individual members of the Electoral College.
But if the Electoral College is responsible for the qualification process, we have only about 35 days until they reach their decision.
Also, lawsuits in court might not work if they only challenged Obama’s eligibility. If the courts are the proper venue, then the lawsuits might also have to allege that such suits were necessary (perhaps made under emergency conditions) because whatever official mechanism is supposed to test the President elect’s qualifications has not been applied.
• I don’t know what the pre-inauguration qualification procedure is.
I don’t know who must conduct that qualification procedure.
I don’t know what the pre-inauguration qualifications are. Maybe it’s only a question of Electoral College votes. Maybe the qualifications include age, citizenship and place of birth.
But it seems plausible that the pre-inauguration qualification procedure might be conducted by the House of Representatives or the Senate—perhaps even by the Supreme Court. It at least seems logical to assume that the qualification process would determine whether the President elect was, in fact, a “natural born Citizen” as required by Article 2, Section 1, Clause 5 of The Constitution of the United States.
It also seems logical to assume that if the official entity responsible for conducting the pre-inauguration qualification procedure fails to do so, the members of that entity might be subject to a writ of mandamus to compel them to perform their duty to test the qualifications of the President elect. In fact, if the members of the “qualification entity” failed or refused to perform their duty to qualify the President elect, they might be subject to personal liability for dereliction of duty, malfeasance or even treason.
As I write this article, there are 35 days before the Electoral College acts and 50 days before the President elect is inaugurated and becomes the next President. Time is short, but it should be enough to research the “qualification” process implied in the 20th Amendment and discover if we really have grounds for a lawsuit—perhaps a swarm of lawsuits—to hit the courts to challenge Obama’s eligibility.
• If you think the hypothesis I’ve advanced concerning the 20th Amendment “qualification” process is a little flakey, consider the following news report. It seems that a Florida lawsuit contesting Obama’s eligibility was filed prior to the election and was dismissed by the trial court as “not timely”. However, that lawsuit has been refilled after the election, and the courts are now willing to consider the merits. This suggests that the Florida courts had no jurisdiction to hear an eligibility case against Obama while he was merely a candidate for the presidency, but acquired jurisdiction to hear the same case once Obama became President elect.
This lawsuit is based on Florida statutes and therefore doesn’t implicate the 20th Amendment’s qualification process. Thus, the lawsuit doesn’t prove my 20th Amendment hypothesis. But that lawsuit is consistent with my hypothesis, and at least tends to support the idea that our only opportunity to prevent an ineligible candidate from becoming President may be to enforce the qualification process during the 75 days between the November election and the January inauguration.
• If you have any capacity to research the 20th Amendment and you discover anything about the qualification process referenced in Section 3 of that Amendment, please forward your discoveries to me at firstname.lastname@example.org or simply post those discoveries as comments on this blog entry. But don’t rely on me to coordinate the research or launch the lawsuit. If the Spirit moves you, file your own lawsuit or petition. Don’t wait on me. But research is critical we need to quickly discover if this “qualification” opportunity is as significant as I suspect, or if it’s nothing more than counting Electoral College votes.
Maybe I’m right. Maybe I’m wrong. Lemme know whatever you find.