A federal judge in San Francisco has dismissed a lawsuit that sought to have Republican presidential nominee John McCain booted from California's ballot, claiming he's not a "natural-born citizen" constitutionally eligible to serve as president.
Markham Robinson of Vacaville, chairman-elect of California's American Independent Party, had sued McCain, the GOP and California Secretary of State Debra Bowen on Aug. 11, arguing McCain's birth 72 years ago in the Panama Canal Zone makes him ineligible for the White House.
Federal law says anyone born in the Panama Canal Zone after Feb. 26, 1904, as a child of U.S. citizens is declared to be a U.S. citizen himself or herself. Robinson said this doesn't make McCain a "natural-born citizen," a term the Constitution doesn't define any further; the federal law took effect about one year after McCain's birth, and doesn't say the person's citizenship was considered to have been acquired at birth.
But U.S. District Judge William Alsup noted federal law at the time said "(a)ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States."
The 1937 law dealing with the Panama Canal Zone only made it clearer yet, he wrote.
"This order finds it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen.
Plaintiff has not demonstrated the likelihood of success on the merits necessary to warrant the drastic remedy he seeks," Alsup wrote.
Furthermore, "plaintiff has no standing to challenge Senator McCain's qualifications," the judge wrote. "Plaintiff is a mere candidate hoping to become a California elector pledged to an obscure third-party candidate whose presidential prospects are theoretical at best. Plaintiff has, therefore, no greater stake in the matter than a taxpayer or voter."
The 12th Amendment sets the electoral-college process for electing a president and federal law describes a process for counting electoral votes in Congress including how to raise objections, Alsup wrote. And the 20th Amendment sets forth what happens if a president-elect is found ineligible to serve: The vice president-elect takes over.
"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," Alsup wrote. "Judicial review — if any — should occur only after the electoral and Congressional processes have run their course."
Robinson's attorney, Gregory Walston of San Francisco, said he's concerned by Alsup's contention that a presidential candidate's constitutional eligibility can be challenged only after the election during the electoral-college tally, but he's at least "glad he did reach the merits; some court needed to address this."
He said Robinson hasn't yet decided whether to appeal.