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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

LIBERTY LEGAL FOUNDATION; JOHN DUMMETT; LEONARD VOLODARSKY; CREG MARONEY, Appellants, v.

DEMOCRATIC NATIONAL COMMITTEE; AND DEBBIE WASSERMAN-SCHULTZ, Appellees.

Appeal from the United States District Court, District of Arizona District Court No. 2:11-cv-02089 RESPONSE IN OPPOSITION TO APPELLANTS MOTION FOR INJUNCTION PENDING APPEAL

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Paul F. Eckstein D. Andrew Gaona PERKINS COIE LLP 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788 Telephone: 602.351.8000 Facsimile: 602.648.7000 peckstein@perkinscoie.com agaona@perkinscoie.com Attorneys for Appellees Democratic National Committee and Debbie Wasserman-Schultz

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Case No. 12-16729

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Pursuant to Fed. R. App. P. 26.1, Appellee Democratic National Committee states that it is not aware of the existence of any parent corporation or any publicly traded corporation that owns more than 10% of its stock.

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Corporate Disclosure Statement

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Appellants Motion for Preliminary Injunction in this Court is yet another step in a coordinated and politically-driven campaign to deprive the American

people of their right to vote for their candidate of choice in the 2012 presidential election.

The sweeping relief sought by Appellants which in effect would

preclude any state from including President Barack Obamas name on the ballot in

not a natural-born citizen of the United States, a legal theory that has been rejected by each and every court and administrative agency to consider it. The

instead properly dismissed Appellants Second Amended Complaint because of its failure to establish the courts personal jurisdiction over Appellees. Appellants Motion should be denied because: (1) they are certain to fail on

weighs decidedly against them, and (4) the public interest most certainly does not

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favor granting temporary equitable relief that will harm both President Obama and the tens of millions of Americans who wish to cast a vote in his favor on November 6, 2012. This Court should not entertain Appellants attempt to abuse

the judicial process in furtherance of their misguided political agenda.

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the merits, (2) they will not sustain irreparable harm, (3) the balance of equities

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district court, however, found it unnecessary to reach this spurious contention, and

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November is predicated entirely on the frivolous notion that President Obama is

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Introduction

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On January 23, 2012, Appellants filed their Second Amended Complaint (the SAC) against Appellees. [R. 10.] The gravamen of the SAC is that

President Obama is not a natural born citizen of the United States, and that he is therefore not qualified to be placed on any ballot for the office of President in the 2012 general election. [Id. 13.] According to Appellants, this result is

allege that the United States Supreme Court defined natural-born citizens as all children born in a country of parents who were its citizens. [Id. 12.] The SAC

fraud/intentional misrepresentation, and declaratory relief, and asked that the district court enjoin the Democratic Party from making any representation by [sic] to any State official asserting, implying, or assuming that Mr. Obama is qualified

Appellees filed a motion to dismiss pursuant to Rule 12(b)(1), (b)(2), and

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(b)(6) of the Federal Rules of Civil Procedure. [R. 24.] That motion argued that: (1) the district court lacked subject matter jurisdiction because the Appellants did not have standing, (2) the district court lacked personal jurisdiction over Appellees because of Appellants deficient pleading, and (3) the SAC failed to state a claim upon which relief could be granted because the district court could not interfere
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to hold the office of President. [Id. 5.]

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alleged

purported

causes

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action

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for negligent

mandated by Minor v. Happersett, 88 U.S. 162, 167 (1874), in which Appellants

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misrepresentation,

Background

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importantly, because President Obama is unquestionably a natural-born citizen of the United States and is eligible to stand for re-election. [Id.] On July 11, 2012,

the district court entered an order dismissing the SAC with prejudice. [R. 41.] It

concluded that Appellants failed to meet their burden of establishing [that the court] has personal jurisdiction over [Appellees], and thus did not reach the other

On August 6, 2012, Appellants filed a timely notice of appeal from the district courts order of dismissal. [R. 43.] Nine days later, they filed a Motion

pursuant to Rule 8 of the Federal Rules of Appellate Procedure. [Doc. No. 4-1.] The Motion asks this Court to enter an order

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[Id. at 20.]

prohibiting the Defendant/Appellees from issuing any letters, certificates, or other document to any Secretary of State of any state, any agent thereof, or any other official of any state, indicating that [President] Obama is qualified to hold the office of President or that the Democratic Party has selected [President] Obama as its Presidential candidate, or requesting that any state place the name of Mr. Obama on any ballot for the office of President of the United States for the 2012 general election.

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for Preliminary Injunction pending the disposition of their appeal (the Motion)

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grounds for dismissal raised. [Id. at 15.]

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with the Democratic Partys choice of presidential candidate, and more

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The entry of the broad and sweeping injunction requested by Appellants would have no basis in fact or law, and the Court simply should not indulge

Appellants arguments to the contrary. Not only did the district court properly dismiss the SAC because of Appellants failure to establish the courts personal

jurisdiction over Appellees, but also it could have properly dismissed the case for

the legal theory on which the entire SAC rests. The Motion should be denied. I. APPELLANTS ARE NOT ENTITLED TO AN INJUNCTION PENDING APPEAL. The standard for an injunction pending appeal is the same as that used by a district court to determine whether to grant a preliminary injunction. See Natural Res. Def. Council, Inc. v. Winter, 502 F.3d 859 (9th Cir. 2007) (applying this standard to a stay application under FRAP 8). Appellants thus have the burden of establishing: (1) a likelihood of success on the merits; (2) that irreparable harm is likely to be suffered in the absence of preliminary relief; (3) that the balance of

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equities tips in their favor; and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). In the instant case, Appellants cannot meet their burden to establish any of these four factors.

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any number of other fundamental deficiencies, most prominently the absurdity of

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Argument

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Although Appellants focus a great deal on their incorrect claim that the judgment of the district court was clear error, that inquiry is one that this Court

will consider at a later time. The relevant question now before the Court is not whether Appellants are likely to prevail on their appeal [Doc. 4-1 at 9], but rather whether they are likely to succeed on the merits of their case in its entirety.

are not only unlikely to succeed on the merits of their claims, but are sure to fail. 1. The district court properly concluded that it lacked jurisdiction over Appellees.

Despite Appellants protestations to the contrary, the district court did not err in concluding that Appellants failed to carry their burden to establish that the court had personal jurisdiction over Appellees. The only disputed conclusion from the order below is that the district court lacked specific personal jurisdiction. Appellants do not contest the district courts holding that [n]othing in the record supports a finding of general jurisdiction. [R. 41 at 5 (emphasis added).]

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Where a defendant moves to dismiss a complaint for lack of personal

jurisdiction, the plaintiff bears the burden of demonstrating that jurisdiction is appropriate. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). Thus, Appellants carried the burden of demonstrating to the district

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Viewed through this lens, Appellants Motion should be denied because Appellants

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A.

Appellants Are Not Likely to Succeed on the Merits.

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three-prong test:

(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protection of its laws; (2) the claim must be one which arises out of or relates to the defendants forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.

Id. at 802 (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987)). This test involves two related but separate inquiries; purposeful availment and purposeful direction. Id. at 802-03.

After examining the allegations made in the SAC, the district court first concluded that Appellants did not allege that [Appellees] have acted in any way to purposefully avail themselves of the protections and privileges of Arizona. Nowhere in the SAC do [Appellants] allege that [Appellees] made a contract,

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engaged in business in Arizona, or established ongoing contacts in Arizona. [R. 41 at 8.] Although Appellants claim that there was purposeful availment in a heading [Doc. 4-1 at 6], they do not substantively address or attempt to refute this

conclusion of the district court.

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court that the exercise of specific personal jurisdiction was proper by satisfying a

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to allege activities directed at the State of Arizona. [Id. at 6-9.] The district court

concluded that Appellants: (1) did not allege that Appellees have completed any

act in connection with alleged misrepresentations about the 2010 presidential

election, (2) failed to establish that Appellees expressly aimed acts at Arizona in any way as required by Bancroft & Masters, Inc. v. Augusta Natl, Inc., 223 F.3d

that is national in scope that does not target any particular person or place, which cannot establish personal jurisdiction. [R. 41 at 9.]

read the allegations in the SAC to refer to a general course of conduct that Appellees will allegedly undertake that is aimed at all fifty states, and not at Arizona (or any resident thereof) in particular. Appellants argument that the

the point, as the relief sought by the SAC is not specific to Arizona (or the Arizona

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Secretary of State), but instead would apply as equally to Arizona as it would to Illinois, Virginia, or any other state. [R. 41 at 9 ([Appellants] allege that

[Appellees] will make a representation to all fifty Secretaries of State . . . .).] Based on these general allegations, Appellants did not establish that

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Appellees expressly aimed any conduct toward the forum state, and the district
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Arizona Secretary of State is a specific person [Doc. 4-1 at 7] thus quite misses

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Far from the clear error alleged by Appellants, the district court correctly

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1082, 1087 (9th Cir 2000), and (3) failed to establish anything more than an act

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Appellants do, however, dispute the district courts holding that they failed

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insufficient to support a finding of purposeful direction. See, e.g., Kransco Mfg., Inc. v. Markwitz, 656 F.2d 1376, 1379-80 (9th Cir. 1981). 2.

Appellants are certain to fail on the merits because the legal theory that colors the SAC has been met with wholesale rejection.

At its heart, the Motion must be denied because there is no question as to

there is no legal basis on which Appellants could prevail on their claims for relief. Despite Appellants arguments and those of each and every birther that

Obama is a natural-born citizen by virtue of his birth in the United States. See United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898) (holding that a person born to non-citizens from China was a citizen of the United States because [e]very

once a citizen of the United States) (emphasis added); see also Hollander v.

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McCain, 566 F. Supp. 2d 63, 66 (D.N.H. 2008) (Those born in the United States, and subject to the jurisdiction thereof have been considered American citizens under American law in effect since the time of the founding and thus eligible for the presidency.) (citations omitted); Ankeny v. Governor of Ind., 916 N.E.2d 678, 688 (Ind. Ct. App. 2009) (citing Wong Kim Ark, and holding that both President
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person born in the United States, and subject to the jurisdiction thereof, becomes at

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has preceded them in state and federal courts throughout the country President

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President Obamas status as a natural-born citizen of the United States, and thus

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court properly relied on case law holding that acts national in scope are

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born within the borders of the United States are natural born [c]itizens for Article II, Section 1 purposes, regardless of the citizenship of their parents). 1

Both the SAC and the Motion rely entirely on Minor v. Happersett. [R. 10

2; Doc. 4-1 at 10-14.] Notwithstanding Appellants erroneous characterizations,

Minor did not exclusively define natural-born citizens as all children born in a

Court expressly left open the question of whether a child born to alien parents is a natural born citizen because it was not necessary to the disposition of the case.

doubts as to whether a child born in the United States, without reference to the citizenship of their parents, is a natural-born citizen[]). That question was in effect resolved in Wong Kim Ark, which held that

becomes at once a citizen of the United States, and not at a later time by

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naturalization or some other means. 169 U.S. at 702 (emphasis added). The very and not at some later time. Indeed, in discussing the English common law at the

Appellees cited below a host of unreported federal, state, and administrative decisions that reach the same result. [See R. 24 at 12 n.8 & Exs. A-C; R. 27 at Exh. D; R. 37.]
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[e]very person born in the United States, and subject to the jurisdiction thereof,

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See Minor, 88 U.S. at 167-68 (noting that it was not necessary to resolve existing

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country of parents who were its citizens. [R. 10 2; Doc. 4-1 at 10.] Indeed, the

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Obama and Senator John McCain were natural born citizen[s] because persons

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in the English colonies and in the United States afterwards the Supreme Court

observed that every child born in England of alien parents was a natural-born

subject, unless the child of an ambassador or other diplomatic agent of a foreign

state, or of an alien enemy in hostile occupation of the place where the child was born. Wong Kim Ark, 169 U.S. at 658 (emphasis added).

predicated has been resoundingly rejected by each and every court and administrative body to consider it, Appellants are not likely to succeed on the

3.

The Court lacks subject matter jurisdiction over this case.

Even if this Court concludes that Appellants have made some showing that would not require denial of the Motion because of a lack of either personal

because the Court lacks subject matter jurisdiction over this case. Specifically: (1)

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Appellants do not have standing to maintain this action, an issue already decided adversely to these Appellants in a parallel proceeding in Tennessee, and (2)

The district court recognized as much when, in its discussion of Appellees motion for sanctions, warned Appellants counsel that knowingly continuing to bring claims that have previously been dismissed may warrant sanctions in the future. [R. 41 at 13.]
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jurisdiction or legal merit, Appellants are not likely to succeed on the merits

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merits. 2 To the contrary, Appellants are sure to fail.

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Because the legal theory on which both the SAC and the Motion are

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time of the adoption of the United States Constitution which was the law in force

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Obamas qualifications is not yet ripe. a.

Appellants do not have standing to maintain this action.

First, Appellants cannot succeed on the merits because they do not have standing to pursue this case. As set forth in Appellees Motion to Dismiss [R. 24 at 5-7]:

Appellant Maroney alleges only that he is a United States Citizen. [R. 10 33] As a result, his alleged injury-in-fact derives solely from his status as a citizen and as a voter. This alleged harm is neither concrete nor

particularized, and is thus insufficient to establish standing under Article III. See Berg v. Obama, 586 F.3d 234, 240 (3d Cir. 2009) (Even if we assume that the placement of an ineligible candidate on the presidential ballot harmed Berg, that injury, including any frustration Berg felt because others refused to act on his view of the law, was too general for the purposes of Article III: Berg shared both his interest in proper application of the

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Constitution and laws, . . . pari passu with all voters . . . .)

Appellants Dummett and Volodarsky, though allegedly candidates for the office of President of the United States [R. 10 21, 28], fail to allege an injury-in-fact because they do not allege that any appellee has engaged in a practice that would provide President Obama with an unfair advantage in
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because of the unique nature of presidential elections, any dispute over President

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1981) (concluding that a candidate had standing to challenge the Postal Services preferential mailing rate afforded his opponent because such

abuses of mail preferences . . . arguably promote[d] . . . electoral prospects) (internal quotation marks omitted). Above all, their presidential

prospects are theoretical at best, and any harm they may sustain in the

1146 (N.D. Cal. 2008) (holding that the plaintiff, a mere candidate hoping to become a California elector pledged to an obscure third-party candidate

challenge Senator John McCains qualifications because he had no greater stake in the matter than a taxpayer or voter). Appellant Liberty Legal Foundation lacks standing because, inter alia, it

own right. See Fleck & Assocs., Inc. v. City of Phoenix, 471 F.3d 1100,

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1105-06 (9th Cir. 2006) (setting forth the test for associational standing). Though all of these arguments remain true today, the Court need not make

any determination as to Appellants likelihood of success on them because that decision has already been made by a court of competent jurisdiction. On June 21, 2012, Judge S. Thomas Anderson of the United States District Court for the
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failed to show that one of its members would have standing to sue in his

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whose presidential prospects are theoretical at best, lacked standing to

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future is entirely speculative. Cf. Robinson v. Bowen, 567 F. Supp. 2d 1144,

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the election process. Owen v. Mulligan, 640 F.2d 1130, 1133 (9th Cir.

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brought by Appellants against Appellees because Appellants failed to allege[] specific facts to demonstrate their standing. Liberty Legal Found. v. Natl

Democratic Party of the USA, Inc., No. 2:12-cv-02143-STA-cgc, slip op. at 19-20

(W.D. Tenn. June 21, 2012) [R. 40, Ex. A.] Because of the existence of a final

judgment concluding that Appellants lack standing to bring the precise claims

here. See Offshore Sportswear, Inc. v. Vuarnet Intl, B.V., 114 F.3d 848, 850 (9th Cir. 1997) (setting forth the conditions for the application of the doctrine of

merits. 3 The Motion should be denied on these grounds alone. b. This dispute is not yet ripe.

Beyond Appellants lack of standing, no court has subject matter jurisdiction

Life Ins. Co. v. Robinson, 394 F.3d 665, 669 (9th Cir. 2005) (If a case is not ripe

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for review, then there is no case or controversy, and the court lacks subject-matter jurisdiction.). Specifically, judicial review in this matter is not appropriate if at

The fact that Appellants cannot relitigate their lack of standing to pursue these claims is a ground on which this Court can and should dismiss this appeal.
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over this matter because the dispute is not ripe for judicial review. See Principal

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collateral estoppel). It is therefore impossible for Appellants to succeed on the

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advanced in the SAC, they are collaterally estopped from relitigating that question

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Western District of Tennessee entered an order dismissing identical claims

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Congress.

As Judge William Alsup of the Northern District of California explained in Robinson v. Bowen, a case in which the plaintiff sought to preclude Senator John McCain from the 2008 ballot in California:

567 F. Supp. 2d at 1147 (emphasis added). Because of these procedures already set forth in federal law, the court held that [j]udicial review if any should

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occur only after the electoral and Congressional processes have run their course.

Id. (emphasis added). What was true then is true now, and accordingly, Appellants

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It is clear that mechanisms exist under the Twelfth Amendment and 3 U.S.C. 15 for any challenge to any [presidential] candidate to be ventilated when electoral votes are counted, and that the Twentieth Amendment provides guidance regarding how to proceed if a president elect shall have failed to qualify. Issues regarding qualifications for president are quintessentially suited to the foregoing process. Arguments concerning qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress. The members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates.

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all until after the 2012 general election and the counting of electoral votes by

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review. 4 B.

Appellants Will Not Sustain Irreparable Harm Without Preliminary Relief.

Appellants sole claim of irreparable harm absent the entry of an injunction pending appeal is that Appellant Dummett is a candidate for the office of

President, and that the appearance of President Obamas name on ballots would reduce the number of votes obtained by candidate Dummett for the same office, and would call into question the validity of such an election. [Doc. 4-1 at 18.]

As a preliminary matter, the SAC is devoid of any allegations that Appellant Dummetts name will appear on any state ballot alongside President Obamas. Although the Ninth Circuit has acknowledged the existence of competitive standing, see Drake v. Obama, 664 F.3d 774, 782-83 (9th Cir. 2011), cert. denied sub nom. Keyes v. Obama, 132 S. Ct. 2748 (2012), that standing doctrine presupposes actual and viable competition. It cannot be that any self-declared presidential candidate has competitive standing to challenge President Obamas

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qualifications (and, as requested here, obtain injunctive relief that would preclude a

That this dispute is not currently ripe is further highlighted by the fact that Appellants brought causes of action for negligent misrepresentation and fraud/intentional misrepresentation for conduct that has yet to occur.
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are unlikely to succeed on the merits because the heart of their case is not ripe for

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legal impossibility of that persons election to office.

Second, and beyond Appellant Dummetts lack of viability as a presidential

candidate, Appellants will not suffer irreparable harm without an injunction

pending appeal because although the election grows ever-closer Appellants will not be without recourse to challenge President Obamas qualifications. As set

votes of the Electoral College have been cast and counted by Congress. See Robinson, 567 F. Supp. 2d at 1147 (holding that [j]udicial review if any

course) (emphasis added).

Finally, the only true irreparable harm that would occur if the Court were to grant an injunction pending appeal would be that sustained by President Obama,

him another term in office, and public trust in our system of democracy. The

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C.

Motion completely disregards the interests of these individuals and that system, and should thus be given no credence. The Balance of Equities Does Not Favor Appellants.

The relief sought by Appellants would prevent Appellees from making

representations about President Obamas nomination as the Democratic Partys

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the millions of members of Americans who wish to cast a vote in November giving

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should occur only after the electoral and Congressional processes have run their

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forth above, they would be free to bring an action if he is re-elected, and after the

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sitting Presidents name from appearing on the ballot) despite the practical and

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See Section I.B, supra. It would hardly be equitable to enjoin Appellees in such a

way. The balance of equities in favor of Appellees requires the denial of the Motion. D.

An Injunction Pending Appeal Is Not in the Public Interest.

The public interest supports free democratic choice, and not an injunction

prevent millions of Americans from casting a ballot in favor of a candidate they support. Appellants arguments to the contrary [Doc. 4-1 at 19-20] are quite

notion that at some indeterminate point in the future, Appellees will make misrepresentations about President Obamas eligibility to serve as President of the United States and stand for re-election. Because no such misrepresentation

the extraordinary and unprecedented relief sought in the Motion.

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can or will be made, see Section I.B, supra, the public interest strongly disfavors

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Because Appellants will not succeed on the merits, will not sustain

irreparable harm absent the entry of an injunction, the balance of equities weighs strongly against precluding the name of the sitting President from the ballot, and the public interest favors free democratic choice, the Motion should be denied.
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Conclusion

unavailing because, like the rest of the Motion, they are premised entirely on the

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that would (1) keep President Obama off ballots throughout the country, and (2)

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candidate for President of the United States that are objectively (and legally) true.

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Dated: August 24, 2012.

Respectfully submitted,

s/ D. Andrew Gaona Paul F. Eckstein D. Andrew Gaona PERKINS COIE LLP 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788 Attorneys for Appellees Democratic National Committee; and Debbie Wasserman-Schultz

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I hereby certify that I electronically filed the foregoing with the Clerk of the

Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on August 24, 2012.

Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

Dated: August 24, 2012.

s/ D. Andrew Gaona D. Andrew Gaona

63920-0001.0010/LEGAL24465657.1

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Certificate of Service