Happy Holidays to All

I would like to wish everyone a very happy 2021 holiday season and a healthy and prosperous New Year. This has been an interesting year. We saw Birtherism whimper to life last year when Joe Biden named Kamala Harris as his running mate in 2020 and that resulted in 2 or 3 lawsuits being filed that all predictably failed.

Unfortunately, COVID-19 is still around although the vaccines have cut the death rates down from what we were seeing at this time last year. We still see a great deal of misinformation being spread about COVID, mostly by the same folks who brought us Birtherism and Trump. The COVID anti-vaxxers are packing our hospitals and making things terrible for our already overburdened health care workers. Thankfully we have a President who believes in science and listens to experts like Dr. Fauci instead of fringe kooks.

Finally I recently ran across this video and it made me think of my 13 year long interaction with Birthers in various venues like this blog. I am not going to point out any particular commenters or others who may have been subjects of various articles I have written.

The most rewarding thing for me about writing this blog and hosting the radio show is that I have been graced with various guests, commenters and callers who have taken the time to patiently and accurately point out the facts on the subjects we have discussed. I will readily admit my patience has worn thin at times over the years. You are what has made this endeavor enjoyable and worth doing.

I think that we made a difference in beating back myths about Barack Obama’s birth certificate which polluted the internet in 2011 (2008 if you consider the initial birth certificate release) and the ongoing attempt to push the myths about the meaning of the natural born citizen requirement in the US Constitution. In particular, the work of people like bloggers John Woodman, Doctor Conspiracy, NBC, Patrick McKinion and others. There were Justin, Brian, and Foggy who started Politijab, which became the Fogbow with its cadre of wonderful attorneys who explained the Birther cases and the shortcomings to us. I also acknowledge the many folks who battled in comment sections of articles and blog posts who are too numerous to list.

It has been my pleasure to meet many of these people either in person, via email, or on the phone. They will have my unending gratitude for giving their time, energy and in some cases money to a cause for which they had nothing to gain other than getting out the truth and preventing unchallenged falsehoods from festering and growing.

Birther Attorney and Not a Constitutional Expert Succumbs to COVID-19

We learned a few days ago that Birther attorney Mario Apuzzo had passed over the weekend from complications associated with COVID-19. Apuzzo was 65 years old and had been hospitalized with COVID and pneumonia.

Apuzzo filed one of the early Birther lawsuits against then President Barack Obama on behalf a handful of plaintiffs as Obama was about to be inaugurated as the first black president in 2009. The lawsuit, Kerchner v Obama, was of course dismissed at the district court level and failed on appeal to the 3rd Circuit and in the Supreme Court.

You can read Mario Apuzzo’s obituary here. Apparently he was quite active in his local Italian American community.

Apuzzo was the second or third attorney (Orly Taitz may have been the second but Orly was such a copycat it is difficult to tell) to use what was later described as the “two citizen parent” theory for the definition of the term natural-born citizen as used in article II of the US Constitution. New Jersey attorney Leo Donofrio had included this argument in a lawsuit filed in New Jersey about the time of the November 2008 election.

Birther blogs like the Post & Email are praising Apuzzo as an “expert Constitutional attorney”. Let’s get that straight. Apuzzo was no expert on the Constitution. He tried to argue on his blog, in comment streams, and in actual cases his theory that to be eligible to be president one had to have two US citizen parents. He lost every case in which in tried to make this argument.

Apuzzo never wrote or published a single article in a reputable, vetted, law journal. The overwhelming majority of real constitutional experts disagreed with him. In short, he pushed a crackpot theory not accepted by real experts. His appeal in the dismissed Kerchner v Obama case in the Third Circuit was ruled to be frivolous. It was only after Apuzzo groveled before the court in a response to the OSC that monetary sanctions were waived. The ruling that the appeal was frivolous stood.

Constitution Association, Inc v Kamala Devi Harris, the Other Harris Birther Lawsuit

George Rombach – Plaintiff and Treasurer of the Constitution Association

Now that Robert Laity’s lawsuit against Vice President Harris has been denied and denied again by SCOTUS we can turn our attention to another Harris Birther lawsuit that has been festering in the Southern District of California. A group calling themselves the “Constitutional Association, Inc” filed a complaint asking for an injunction preventing Harris from assuming the office of Vice President citing the Birther invented definition of natural born citizen (requiring that both parents be US citizens at the time of birth) and the usual sources (de Vattel, Minor v Happersett, John Jay’s letter to George Washington, etc.). The plaintiffs go even further and claim that Harris was not even a citizen at birth because her father (Jamaican) and mother (Indian) who both resided in California at the time were not under the jurisdiction of the United States.

The Constitution Association officers are President Douglas V. Gibbs, conservative radio host in San Diego, Dennis Jackson, Vice President, and George Rombach, Treasurer. They are all named plaintiffs in the complaint.

The initial complaint was filed on December 7, 2020 before the Electoral College voted to make Joe Biden President Elect and Kamala Harris Vice President Elect. The plaintiffs tried to serve Harris by mailing a copy of the summons and complaint to the White House. On April 26 the plaintiffs filed for default since Harris had never responded. The same day the clerk entered a default against VP Harris.

Then on May 12th the Vice President through the local US Attorney’s office filed an ex parte motion to set aside the default and dismiss the complaint since Harris had never been properly served under the rules for serving a complaint upon a government employee. On May 17th Judge Todd Robertson issued an order to show cause why the case should not be dismissed the issues of standing and subject matter jurisdiction and gave the plaintiffs until June 3rd to file a response to the ex parte motion filed by the US Attorney’s office.

The plaintiffs filed their response on June 3rd and claimed that the Vice President was not a government employee and had been properly served. On June 10th the acting US Attorney filed a reply to the plaintiffs’ response.

On June 11th the Constitution Association filed additional motions including an amended response to the government’s ex parte motion, a request for a hearing, and a request for recognition as class status. The latter two motions were docketed along with notices from the court that they contained procedural errors. (See the docket for more details.)

A decision on the ex parte motion to dismiss is pending.

Most of the court documents are available at Court Listener

Laity v Harris Petition for Certiorari Denied by the Supreme Court

The orders from the SCOTUS conference held last Thursday May 27 contained a one line denial of Robert Laity’s appeal of his loss in the DC Circuit. See page 3.

Click to access 060121zor_e1p3.pdf

I have consistently predicted that Laity’s appeal would be doomed for many reasons. In a comment at the Post & Email Laity has said he would file a petition for rehearing. This too will be denied.

Updated 6/22/2021:

Laity’s petition for rehearing was added to the Supreme Court case docket today and is dated June 16. There is a slim chance it could be on the agenda for the conference on Thursday but more likely it will be on the agenda for the first conference of the new term in October.

It is six pages long and merely restates Laity’s previous claims. It will therefore be denied.

Click to access 20210622110438490_20210622-110336-95754036-00002464.pdf

Robert Laity’s Appeal to the Supreme Court is Docketed

Robert Laity’s futile appeal of his DC Circuit denial in Laity v Harris has now been docketed at the Supreme Court. The Clerk assigned case number 20-1503 to the petition for writ for certiorari. Vice President Harris has until May 28th to respond. Past practice would indicate that the right to respond will be waived. That means the case would be scheduled for conference around June 10th or June 17th with the denial showing up on the corresponding following Monday (June 14th or 21st).

Laity covers the same ground that we have seen before. He bemoans that we are suffering under a veritable epidemic of ineligible candidates – Obama, McCain, Cruz, Rubio, Jindal, and Harris. Oh My! He claims Harris is not eligible but never bothers to tell the Court why. I suppose we are to take his word for that. He tries to address standing. He claims the lower courts erred when he was denied on grounds of standing. As for his injury he wrote this:

The injury I have suffered is both concrete, particularized, actual and imminent. There is a nexus between the Injury
and the illegal conduct of Kamala Devi Harris in usurping the Vice-Presidency. A favorable and appropriate decision and remedy for the Petitioner by this court will redress the injury.

In other words the fact that Laity does not like Harris or her politics is causing him a great injury. He then goes on to argue that standing is not in the Constitution in the first place and was invented by the courts. (I suppose he has never read Article III where the federal courts are deemed to be courts of limited jurisdiction confined to actual cases and controversies.) I guess Laity knows the argument that he has standing is beyond lame and not likely to succeed so let’s just get rid of that little requirement.

Laity also filed a 64 page Appendix that includes the amicus brief filed at the very last minute in Laity’s case in DC District Court filed by a formerly unknown U. S. Allegiance Institute represented by attorneys William J, Olson and Mario Apuzzo. Yes that Mario Apuzzo.

Here is Laity’s petition as filed:

Laity v Harris Petition for Writ of Certiorari

DC Court of Appeals Denies Laity’s Request for a Hearing en Banc

On March 18th the DC Court of Appeals denied Robert Laity’s request for a hearing in en banc in his quo warranto case against Vice President Kamala Harris. A hearing en banc is a rehearing of an appeal recently rejected by a three judge panel by the full court. The ruling was brief and indicated not one of the members of the court spoke up in favor of the rehearing. In other words the rejection was unanimous.

At the same time the three judge panel discharged the order to show cause why Laity should not be sanctioned for filing a frivolous appeal. This means Laity is off the hook for monetary sanctions but the court said that his appeal was still frivolous and that if he ever brought another frivolous case before the court he would not be so fortunate.

Here are the two orders:

Click to access laity-en-banc-denial.pdf

Click to access laity-dc-osc-discharged.pdf

Laity left a comment at the Birther blog Post & Email in which he vowed to press on with an appeal to the Supreme Court. As the old saying goes his chances of success there are slim and none and slim left town.

Comment Moderation on this Blog

I thought I would discuss comment moderation in a brief post. First I am against comment moderation in general. I think requiring that every comment be moderated hinders open discussion. Blogs like the Post & Email moderate every comment. Sharon Rondeau unevenly and unfairly IMO allows people who agree with her to make threats and post all sorts of false claims. On the other hand I have seen her not allow through factual and documented comments that contain content that go against Birther memes.

The setting I use here sends your first comment into moderation and if it is approved you should be able to comment without it going into moderation. I have noticed lately some comments are still going into moderation that should not. WordPress.com uses Akismet to filter out comments from known spammers. I have seen rare instances where some legitimate comments were trapped by Akismet. I try to check the spam folder frequently to approve any that get caught wrongly.

Comments that contain too many links will also be flagged and moved to the spam folder. That number is is set pretty high so it should not be an issue with legitimate comments.

If you comment using a different email, WordPress.com ID, or using something like Twitter for logging in then that will be treated as a new comment and placed into the moderation folder.

If I continue to see comments going into moderation I will report it to WordPress.com

The comment policy for the RC Radio Blog remains unchanged:

Comment Policy

The views expressed in comments may or may not reflect those of the owner(s) of this blog or the Reality Check Radio program on BlogTalk radio. Comments posted from first time commneters are moderated and additional comments will be moderated until one is approved.   After the initial approval comments are not moderated unless they violate this comment policy.  Comments may be identified as spam if they contain too many links. Comments  that  are abusive, profane, or left by those who appear not to be interested in honest discussion may be placed in moderation or deleted. The owner(s) reserves the right to edit or delete comments.  Comments become the property of the RC Radio blog. Any edits will be noted in the comments.

I will not post or divulge  identifying information such as email addresses and IP addresses without consent of the commenter. However, comments containing threats may be reported to the proper authorities along with identifying information.

2020 Election cases still active in the US Supreme Court

This is a list of the election cases still active at SCOTUS. Thanks to SLQ at the Fogbow for adding one I missed. There may be more but this is what I could find yesterday. Three are appeals from state supreme courts. Four are appeals from federal circuit courts.

The only case that might be heard is 20-542. That is the one on the three day extension for receiving mail in ballots in Pennsylvania. Justice Alito issued an order to kept such ballots separated in case plaintiffs prevail. This case will not change the outcome in Pennsylvania.

A link to the docket for each case is provided. If I missed any cases please provide the case number in a comment.

Update January 19, 2021:

Thanks to Marc Elias. I added 20-816, which is the last of the Georgia Kraken cases.

Update February 22, 2021:

The court denied all the remaining petitions except case number 20-883 which is scheduled for conference on March 5. It is an appeal from a case file by Donald Trump against the Wisconsin Elections Commission. Four cases from Pennsylvania were combined and denied with Justices Thomas, Alito, and Gorsuch dissenting.

Updated March 1, 2021:

I added two more Kraken cases one in Arizona and one in Wisconsin that I had missed. Both were denied in the order published today.

Updated March 8, 2021:

Trump’s case against the Wisconsin Election Commission and a petition for mandamus by L. Lin Wood against Georgia were both denied. No other cases are pending as far as I know.

Case Number	Description/Activity
20-542	Republican Party of Pennsylvania, Petitioner v. Kathy Boockvar, Secretary of Pennsylvania, et al.
	Whether PA Supreme Court erred in allowing votes received up to three days after election day to count
	Fully briefed. Distributed for conference 1/15. Updated: Now distributed for conference on 2/19. Updated 2/22 Certiorari denied
20-574	Jake Corman, et al., Petitioners v. Pennsylvania Democratic Party, et al.
	Appeal from the Supreme Court of Pennsylvania filed by Republicans in the Pennsylvania Legislature. Whether PA Supreme Court erred in allowing votes received up to three days after election day to count 2/22 Certiorari denied
20-740	Jim Bognet, et al., Petitioners v. Kathy Boockvar, Secretary of Pennsylvania, et al.
	Similar case on 3 day extension except began in federal district court. Appeal from Third Circuit. Distributed for conference on 1/15 Updated 2/22 Certiorari denied.
20-799	L. Lin Wood, Jr., Petitioner v. Brad Raffensperger, Georgia Secretary of State, et al.
	Appeal from the Eleventh Circuit. December 8th: Petition for a writ of certiorari filed. (Response due January 11, 2021) No response or waiver docketed yet. Updated 1/27: The case is distributed for conference on 2/19. Updated 2/22: Certorari Denied
20-809	Kelli Ward, Petitioner v. Constance Jackson, et al.
	Appeal from Supreme Court of Arizona. Petition for a writ of certiorari filed. (Response due January 14, 2021) No response or waiver on docket. Motion to expedite denied on January 11. Update on 1/27: Distributed for conference on 2/19. Updated 2/22: Certiorari Denied
20-815	Timothy King, et al., Petitioners v. Gretchen Whitmer, Governor of Michigan, et al.
	Appeal from Sixth Circuit. December 11: Petition for a writ of certiorari before judgment filed. (Response due January 14, 2021). Responses from Gov. Whitmer and City of Detroit filed on January 14. Updated 2/3: Distributed for conference on 2/19. Updated 2/22: Certiorari Denied
20-816	In Re Coreco Ja’Qan Pearson, et al., Petitioners
	Filed December 11th. Petition for a writ of mandamus filed. (Response due January 14, 2021) January 11th: Motion to expedite denied. January 19th: Joint Stipulation to Dismiss Appeal of Coreco Ja’Qan Pearson, et al. submitted. This one is dead. Updated 2/19/2021: Case dismissed on 2/11/2021 under Rule 46 (Voluntary dismissal by all parties involved).
20-845	Donald J. Trump for President, Inc., Petitioner v. Veronica Degraffenreid, Acting Secretary of Pennsylvania, et al.
	Appeal from Supreme Court of Pennsylvania on whether PA Supreme Court erred in allowing votes received up to three days after election day to count. Docketed 12/23. Response due 1/22/2021. 1/14/2021 Waiver of right to respond filed by Kathy Boockvar Secretary of the Commonwealth of Pennsylvania. 1/27/2021 DISTRIBUTED for Conference of 2/19/2021. 2/22/2021 Petition Denied
20-848	In Re Tyler Bowyer, et al., Petitioners
	Arizona Kraken case. Petition for writ of mandamus. Docketed 12/29 Updated 3/1/2021 Petition denied.
20-849	In Re William Feehan, Petitioner
	Wisconsin Kraken case. Petition for writ of mandamus. Docketed 12/29 Updated 3/1/2021 Petition denied.
20-882	Donald J. Trump, et al., Petitioners v. Joseph R. Biden, et al.
	Appeal from Supreme Court of Wisconsin. December 29: Petition for a writ of certiorari filed. (Response due February 3, 2021). Motion to Expedite denied January 11. January 15: Waiver of Joseph R. Biden, et al. of right to respond submitted. Updated 1/25: Distributed for conference on 2/19. Updated 2/22: Certiorari Denied
20-883	Donald J. Trump, Petitioner v. Wisconsin Elections Commission, et al.
	Appeal from the Seventh Circuit. December 30: Petition for a writ of certiorari filed. (Response due February 3, 2021). January 15: Waiver of Wisconsin Elections Commission, et al. of right to respond submitted. Update: The DNC and other members of the WEC waived their rights to respond this week, aka the kiss of death. Updated 2/9/2021. Trump’s attorneys filed a supplemental brief claiming that some issues in the case are not moot after Biden’s Inauguration. They are obviously trying to head off a dismissal of the case on mootness. Updated 2/19/2021: Distributed for conference on 3/5/2021 Updated 3/8/2021: Certiorari Denied
20-887	In Re L. Lin Wood, Jr., Petitioner
	Filed December 30th. Petition for a writ of mandamus filed. (GA) (Response due February 3 2021). Updated 2/17/2021: Distributed for Conference of 3/5/2021. Updated 3/8/2021: Certiorari Denied

Laity v Harris – Appeal to the DC District Court of Appeals

Thanks to reader Northland10 for obtaining selected documents from Robert Laity’s appeal to the DC District Court of Appeals of his loss in his quo warranto case against Kama D. Harris in November in the DC District Court. I have previously written about that case in this article, Birther Robert Laity files first action against Kamala Harris questioning eligibility.

The appeal was docketed on November 19th. I believe these are the key documents in the case:

Laity submitted a Statement of Issues on November 20th that was docketed on November 25th:

Click to access statement-of-issues.pdf

Laity filed a Motion to Expedite on November 23rd that was docketed on November 30th:

Click to access laity-appeal-mition-to-expedite-1.pdf

Beth Brinkmann entered an appearance for Vice President Elect Harris and on November 30th filed a Motion for Summary Affirmance:

Click to access laity-motion-of-summary-affirmance-harris-20-7109_documents-1.pdf

Laity mailed an opposition in response to the Motion for Summary Affrimance on December 1st that was docketed on December 11th.

Click to access laity-appeal-response-to-msa-by-laity.pdf

On December 16th Harris’ Attorney Beth Brinkmann filed a reply to Laity’s response:

Click to access laity-appeal-reply-to-response-to-sa.pdf

Finally on January 3rd Laity filed a copy of a letter he had sent to Acting Attorney General Rosen renewing his notice of quo warranto against Kamala Harris that he had sent to AG Bill Barr in August.

I hope this all makes sense. It took a bit of work to get the documents in order since at least at the beginning Laity was mailing documents while the attorney for Vice President Elect Harris was filing electronically.

I might add some comments on the filings later.

Updated 2/8/2021: Laity’s appeal was dismissed unanimously by a three judge panel. They also issued an order to show cause why sanctions should not be imposed for filing a frivolous appeal. Laity has 30 days to respond.

Click to access laity-appeal-dismissal.pdf

Updated 2/9/2021: Laity already filed a reply. A copy was made available at the Post & Email blog.

Click to access harris-appellant-reply.pdf

Et tu, Michael?

Los Angeles Times

In 21 days Mike Pence will have to be the one. He will have to sit as chair of a joint session of the new Congress that counts the electoral votes to officially “kill” any hope for a second term for Donald J. Trump. Vice President Pence as have all the vice presidents who ran for either president or vice president and failed will preside over his own loss and the loss of his boss. It is largely ceremonial but is has to be done as the last Constitutionally prescribed action of the process by which we choose our president and vice president every four years.

The last time we had this identical situation was in 1993 when Vice President Dan Quayle, from Indiana just like Mike Pence, presided over the loss of his boss George H. W. Bush and himself to Bill Clinton and Al Gore, respectively. I was surprised to find there is actually video of that session.

https://www.c-span.org/video/?36840-1/electoral-ballot-count

There have also been similar joint sessions where a vice president had to preside over their own loss when vying for the top job. One of the more memorable was in 2001 when after he had lost Florida by a little over 500 votes Vice President Al Gore had to preside not only over the count but rule several times that objections raised by members of the House black caucus were out of order. For an objection to be valid it has to be submitted in writing and signed by at least one member from each body. In 2001 no senator chose to sign an objection to the Florida slate of electors.

Another session that followers of the Birther movement might recall happened on January 8, 2009 when outgoing Vice President Dick Cheney presided over the session that confirmed Barack Obama as President and Joe Biden as Vice President. Birthers claimed that Cheney failed to call for objections as required in the law. Of course there were no objections because if there were they would have been submitted beforehand in writing and signed by at least one member of each body. Of course facts never got in the way of a Birther conspiracy. The claim that Cheney was in on the fix was included in several Birther lawsuits.

Yes, C-Span has that session too:

https://www.c-span.org/video/?283204-2/electoral-vote-count-certification

I will be watching on January 6th when Pence takes the chair. We he try to pull some shenanigans? It’s not likely. There are rules and laws in place that would prevent him from going rogue. Will there be any objections? We know there are Republican members of the House who are ready to object. However yesterday Senate Majority Leader Mitch McConnell signaled to his fellow Republican senators that objections would not be welcomed by the leadership.

Even if there are objections filed against electors from states won by Biden and Harris nothing happens unless a majority of each body, voting separately upholds the objection. It is not going to happen so I will not take time to speculate where it goes if an objection is upheld. A majority of Republicans in the Senate would not want to explain to millions of voters in Pennsylvania, Michigan, Wisconsin, Georgia, Nevada, or Arizona why their votes were not counted.

Joe Biden will be certified as the President and Kamala Harris will be certified as Vice President on January 6th. Mike Pence knows that. If he wants any future in politics he knows what he has to do. The kill has to be clean and neat. Estne officium tuum exsequaris Mr. Pence.