In terms of bizarre twists, last week, a lawsuit was filed in United States District Court for the Central District of California – entitled Delegates To The Republican National Convention vs. Republican National Committee [SACV 12- 00927 DOC (JPRx)]. The Paul campaign is keeping its distance for good reason – it is a very flawed suit. The United States District Court Judge in this action is David O. Carter, a no-nonsense judge and a former prosecutor.
While the Republican delegate selection process is coming to a conclusion and actual delegates are becoming named, the preference of these delegates – save where the candidate chooses his or her delegates – is not fully known. To avoid harassment of its supporters, the Paul Campaign has instructed its delegates not to state their preferences. In certain states this strategy has leaked out: Colorado, Louisiana (at the congressional district level), Massachusetts, Nevada, Oklahoma (at the Congressional District level) and Virginia being the prime examples. For the rest, mum apparently is the word.
This litigation is a stretch to begin with. But a number of the individuals alleging to be delegates and Plaintiffs are not in fact delegates.
The substance of the lawsuit strings together references to not necessarily interrelated federal statutes and regulatory definitions to argue that certain federal provisions invalidate state statutes and that state party regulations bind delegates.
As a matter of law, the right to vote for national officers is a privilege and immunity of national citizenship under Section 1 of the 14th Amendment and thus is subject to congressional enforcement under Section 5 of the 14th Amendment. Moreover, other provisions of the Constitution refer to national voting procedures, not the right to vote itself.
As such, per “The Necessary and Proper Clause” (also known as the Elastic Clause, the Basket Clause, the Coefficient Clause, and the Sweeping Clause) to wit, Article One of the United States Constitution, section 8, clause 18 provides that “The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Accordingly, Congress clearly has the authority to enact legislation barring “state binding” procedures so long as the first amendment is respected. It is not clear that Congress exercised that authority.
In the case of delegates named from Arizona, the entire Paul slate, save for 3 possible delegates, were rejected at the Arizona State Republican Convention. Apart from maybe three mentions, all listed delegates are not bona fide plaintiffs. In the case of an alleged Alabama delegate, that delegate is not listed as a delegate by the Alabama Republican Party in its submission to the National Republican Party.
That leaves as potentially viable plaintiffs two individuals from Alaska, perhaps 10 from Georgia, one from Louisiana, two from Massachusetts, three from Michigan, maybe one from South Carolina, one from New Jersey, and three from Nevada. Several other delegates, if they are indeed delegates, are from unbound states and as such they have no complaint. This also means most of the state party defendants are not proper defendants – including the California Republican Party.
There are only two clearly elected Paulites, Renato D’Amico and John McKeon from Massachusetts, as bona fide plaintiffs. Both D’Amico and McKeon are Romney bound delegates from Massachusetts 7th Congressional District. Any federal action should have been brought forth in Massachusetts, where the “Loyalty Oath” was directly employed.
While the federal courts may have jurisdiction, this Central District Court having venue is another matter. The Central District Court venue is also very important. In fact, last year Congress passed and President Obama signed into law, the Federal Courts Jurisdiction and Venue Clarification Act of 2011 which clarifies the jurisdiction of the federal courts and rules governing venue (whether the case should be heard in state, federal, or another court). Venue simply does not lie in Judge Carter’s court.
Assuming competent RNC Counsel gets involved, the following is likely to occur.
To begin with, pursuant to the Feral Rules of Evidence 201, Judge Carter will take judicial notice of the fact that there are no true California plaintiffs and probably no plaintiffs from almost all of the states and ergo improper defendants. That being the case, there is no venue for this action in the Central District of California.
It is likely that competent counsel will immediately bring two motions. The first motion is a motion for change of venue pursuant to Federal Rule of Civil Procedure 12(b)(3) seeking a change of venue – probably to the United States District Court of Massachusetts. That venue motion may well be coupled – depending on Judge Carter’s courtroom procedure and the tactical views of the RNC’s counsel – with a discrete motion to strike a plethora of allegations from the complaint [including named plaintiffs and defendants] pursuant to Federal Rule of Civil Procedure Rule 11 and 12(f).
They may also seek monetary sanctions against plaintiff’s attorney Richard C. Gilbert. The reason for these monetary sanctions is per Rule 11(b) by presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. Putting aside the merits, most of the Plaintiffs are not who they say they are.
Pursuant to the Federal Rules of Evidence 201, Judge Carter will take judicial notice of the fact that there are no true California plaintiffs and probably no plaintiffs from almost all of the states and ergo improper defendants. That being the case, there is no venue for this action in the Central District of California and will ship it to Massachusetts. He is also likely at a minimum to strike 90% of the allegations of the complaint if requested at least as to parties, and may in fact start the monetary sanctions process. Given Judge Carter’s no nonsense demeanor, this action will be moot very quickly.
Join the discussion Please be relevant and respectful.
If you are interested in the recent GOP Primary Elections results, I encourage you to take a look at this document (both links point to the same document):
This is a slide show of graphs for all states. You might come to some interesting conclusions after looking at these graphs...
This author is blowing smoke, obviously for the RNC. Civil Rights were violated pertaining to the illegal practices by the RP that prevented the delegates from being properly and duly appointed. Good try though.
Let's not forget the Supreme Court ruling that has already confirmed the legitimacy of the lawsuit. It's not trying to enact, create, alter or subvert law, it is simply trying to assert the law as it has been upheld in the Supreme Court of the United States of America. For all of your seeming evidence it actually seems like you only pulled the portion that supports your own contention. Btw, have you ever heard of voter intimidation? That's exactly what the RNC is doing by trying to make people sign a contract under the penalty of perjury. What a scam.
Sounds like a bit of fantasy writing/hoping on the part of Mr. Peace, the author of this hit-piece. The lawsuit has roughly 170 plaintiffs already attached to it and they are mostly...not one or two..but mostly NATIONAL delegates. The lawsuit doesn't only address the Unbound question, mainly because the RNC has already admitted that the Delegates are unbound the moment they reach the convention, it also addresses the illegal tactics employed by the GOP during the Delegate Conventions of almost all 50 states. And there is amply video evidence that has been submitted along with the lawsuit to verify that as the truth. Then you got the larger list of plaintiffs that will be added to the lawsuit tomorrow, Thursday the 28th. All this adds up to the Neo-Cons who support Mr. Mitt " I support Indefinite Detention of U.S. Citizens " Romney will be crying into their Morman approved beverages on Friday the 29th. =)
While I have reservations on how effective this effort will prove to be, I am compelled to comment. I don't see how the plaintiffs must be actual delegates going to Tampa. People who paid their fees and worked their way through the process to only be discarded based on their choice of candidate are injured parties. Especially those who were rejected using fraud, election rigging, fake slates and blatant disregard for the party rules.
I am one of many 1000s of people who watched delegate selection processes in numerous states, via live streaming video feeds. People around the world watched in disbelief as blatant rule-breaking and cheating occurred. We went into this thinking "anyone but Obama" but witnessed "anyone but Ron Paul" instead.
Since Romney is so similar to Obama on critical issues (and share very similar funding sources, such as Goldman Sachs) we were looking for a non-Goldman Sachs candidate. It appears that's not in the cards for America. It will be Goldman Sachs vs Goldman Sachs, or heads they win, tails we lose.
Even more irritating, was viewing mainstream news outlets, describing the conventions and voting that we had just viewed, via live video streams. The reports said nothing of the blatant vote rigging against Paul, more focused on "those unruly delegates" and "making problems for the convention, or voting process". If law suits bring public awareness to election rigging, then it benefits all Americans.
Without election processes following rules and a level playing field we will get candidates who will continue to carry us down a rocky path and a government catering to central banks and war profiteers. It would behoove Democrats to closely follow their own process (and not reply on a candidate's personal legal team to "assure fair process").
Ahhh, the “necessary and proper” clause, sited as an “elastic clause” that permits the federal government to exercise a broad array of powers not mentioned in the Constitution. Given the Framers’ assurances about the limited nature of the government they were creating and their repeatedly expressed fears of unlimited government, we must look with skepticism at the claim that this or any constitutional clause was designed to be an “elastic clause.” Such a thing would have defeated the purpose the Framers had in mind in drafting a written constitution. A review of the statements of the Framers and ratifiers regarding this clause confirms our initial skepticism. Of course, it was not designed as an “elastic clause,” an invitation to tyranny that would have horrified just about everyone. It was intended as a note of clarification only. It meant not that the federal government was thereby granted an array of unspecified powers, but that the government could perform simple tasks that were clearly incidental to carrying out its enumerated powers. It is not difficult to uncover evidence of this broad consensus. The state ratifying conventions are full of assurances about the innocuous nature of the clause:
- in Virginia, George Nicholas said “it was no augmentation of power,”
- Madison said the clause “gives no supplementary powers.”
- Archibald Maclaine said in North Carolina that “the clause gives no new power.”
- In Pennsylvania, Chief Justice Thomas McKean explained that it “gives to Congress no further powers than those enumerated.”
- James Iredell said the same thing in North Carolina. (Berger, Federalism, 89)
History shows, on the contrary, that eminent Americans, even those who favored a powerful central government, agreed that the Constitution would have been exactly the same had this alleged elastic clause never been written. Even Alexander Hamilton noted that the Constitution would have been in no way different had this clause not been included at all. “It may be affirmed with perfect confidence,” wrote Hamilton in Federalist #33, “that the constitutional operation of the intended government would be precisely the same” if the “necessary and proper” clause were “entirely obliterated.” “In sum,” writes Harvard’s Raoul Berger, “the records make plain that the necessary and proper clause was merely designed to specifically authorize the employment of means to effectuate, to carry into execution, granted powers, not to augment them; and they strongly read against the doctrine of implied powers.”15 This interpretation of the “necessary and proper” clause continued to be insisted upon in the years following ratification of the Constitution. Jefferson defended this view in 1791, pointing out that necessary meant necessary, not merely “convenient” governments will always find their oppressions convenient.
St. George Tucker, the great judge and law professor who wrote the highly regarded View of the Constitution of the United States (1803), echoed these sentiments. So did political thinker and U.S. Senator John Taylor, Judge Spencer Roane, and a great many others. James Madison wrote in 1800 that this interpretation of the clause is “precisely the construction which prevailed during the discussions and ratifications of the Constitution.” It “cannot too often be repeated,” he continued, that this limited interpretation is “absolutely necessary” in order for the clause to be compatible with the character of the federal government, which is “possessed of particular and defined powers only” rather than “general and indefinite powers.
Have you seen any of the videos of the RNC cheating?
Any at all?
Cause you might want to take a few hours and research that.... its kinda important.
Might see why some of these "non delegates" should have been delegates.
I do not know Gilbert, and don't know if he does a good job or not.... but there is a very real reason to bring most of the entire Rupublican party to court.
Very informative Chad... thank you.
I take four main points away from this article:
1. California is still wacky land central.
2. There are WAY too many lawyers in the US and its too easy to become one.
3. Ron Paul supporters have gone completely looney-tunes.
4. Paul supporters have a bad case of "Obamaitous"... blaming others for their woes.
I would recommend all Paul supporters read this article... but, they left any ability they may have had for critical thinking and reasoning behind some time ago.
Get that money bomb ready for this Gilbert moron. Becuase when the RNC is through with him, he is going to owe hundreds of thousands of dollars in the defendants' legal fees. And since he is not a very good lawyer (obviously) he doesn't have the money to pay for it.