Below is the actual "Emergency Stay Application" I filed with the United States Supreme Court on November 3rd, 2008.
Supreme Court of the United States
Leo C. Donofrio,
Nina Mitchell Wells, Secretary of State of the State of New Jersey
APPLICATION FOR EMERGENCY STAY
Leo C. Donofrio, Pro Se
PO Box 93
New Jersey, 08816
November 3rd, 2008
Appellant, Leo C. Donofrio, respectfully submits to this most Honorable Court,
having exhausted all available remedies below, that there are no other
jurisdictions available to him for review. Appellant further respectfully
submits to this Honorable Court that this matter reflects a vitally important
public interest, and that it also presents a unique Constitutional question of
first impression as to the legal significance of the term "natural born citizen"
as enumerated in Article 2, Section 1, of the Constitution of the United States
as an absolute qualifier for all who seek the office of President of the United States.
LOWER COURT ORDERS
Appellant, Leo C. Donofrio, Has brought the emergency Application before
this most Honorable Court directly from an order denying Appellant's Motion
For Emergency Injunctive Relief from The Supreme Court of New Jersey, by the
Honorable Justice Virginia A. Long, on Friday October 31, 2008 at approximately
1:30 PM. Prior to making such Motion in The Supreme Court of New Jersey,
Appellant sought emergency relief in the Superior Court of New Jersey, Appellate
Division, before the Honorable Jack M. Sabatino. Appellant filed various papers
in the Appellate Division, including a Fact Sheet Upon Application For Emergent
Relief, and a letter supplement thereto, after which His Honorable Jack M.
Sabatino granted full review of this matter. Appellant then filed a Complaint
In Lieu of Prerogative Writs, followed by a Motion For Summary Judgment.
Appellant's Application for Emergent relief, after having been granted
full review by the Honorable Jack M. Sabatino and the Honorable Philip
S. Carchman, Presiding Justice, Appellate Division, on October 27, was
dismissed on October 30, 2008, by an order and five page decision by the
Honorable Jack M. Sabatino at approximately 5:00 PM, October 30, 2008.
Appellant, Leo C. Donofrio, a New Jersey citizen who intends to vote in
the pending general election of 2008, requests this most Honorable Court
to issue an Emergency Stay prohibiting the use, in the State of New Jersey,
of defective ballots containing at least three ineligible candidates for the
office of President of the United States, and for such Honorable Court to
order Defendant-Respondent, Nina Mitchell Wells, Secretary of State of
the State of New Jersey, to remove from New Jersey ballots the names of
Republican candidate John McCain, Democratic candidate Barack Obama,
and Socialist Worker's Party candidate Roger Calero, as Appellant
respectfully submits they are not "natural born citizens" as enumerated
in Article 2, Section 1, of the Constitution of the United States.
And should this Honorable Court agree that the aforementioned
candidates are not "natural born citizens" of the United States, Appellant
respectfully submits, that while he did not request a Stay of the national
election in the lower courts, such a Stay be ordered for good and proper
cause. In the alternative, while Appellant's original complaint requested
an order staying the ballots until Respondent might complete a proper
investigation as to the Presidential eligibility of the candidates, Appellant
respectfully submits that the Constitutional issue now before the Court is
of the utmost public importance and is also here now before this most
Honorable Court as a matter of first impression.
Appellant respectfully submits that the only purpose for
remanding the matter back to the Secretary of State would involve
the issue of whether Democratic candidate Barack Obama be
required to prove to Respondent that he was born in Hawaii.
Appellant, in both his original Complaint and Motion For
Summary Judgment, contends that candidate Obama is not eligible
to the Presidency as he would not be a "natural born citizen" of
the United States even if it were proved he was born in Hawaii , since,
as was argued in Appellant's original complaint brief, as well as
Appellant's brief in support of Motion For Summary Judgment,
Senator Obama's father was born in Kenya and therefore, having
been born with split and competing loyalties, candidate Obama is
not a "natural born citizen" as is required by Article 2, Section 1,
of the United States Constitution.
STATEMENT OF THE FACTS
In early October 2008, Appellant began to fear that controversys
surrounding numerous law suits, filed against Presidential candidates
Senator John McCain and Senator Barrack Obama, would threaten
Appellant's fundamental voting right as well as his fundamental right
to be governed by a President with a proper mandate under the
On October 22nd, 2008, Apellant phoned the
New Jersey Office of Secretary of State, Elections Division, and
spoke with Donna Barber, the Elections Manager for the State of
New Jersey. During that conversation, Appellant asked Ms. Barber
what steps the Secretary had taken to determine whether any of
the candidates listed on New Jersey ballots for the upcoming
Presidential election were eligible for the office of President.
Donna Barber then informed Appellant that Respondent-Secretary
of State took no steps to determine such eligibility but rather assumed
the candidates were eligible based upon only the fact that they had
been nominated. Appellant then took a close look at the election statutes.
N.J.S.A 19:13-22 requires Respondent to follow specifically
prescribed steps in order to protect and secure New Jersey ballots
voters from the destruction of electoral integrity. Specifically, 19:13-22
requires Secretary Wells to make a "statement" wherein she certifies,
under her hand and official seal of office, the names...
"...of all such candidates for whom the voters within such county may be by law entitled to vote at such election." (Emphasis added.)
The purpose of the statement is to instruct the clerks, and the board
of elections, for each county, as to which candidates are "by law entitled"
to have their names printed on the ballots for the upcoming election.
The next day, October 23, 2008, Appellant spoke with Elections Manager,
Donna Barber, and again was told that Respondent had no reason to
object to the party nominations and that the statutory deadline for
objection to such nominations had passed. Ms. Barber specifically
stated that her office, the Elections Division, would not change the
ballots at such a late date.
Appellant considered various options, but ultimately came to
the conclusion, after further review of the statutory code, that the only
legal force available to him was an Action In Lieu of Prerogative
Writs to compel Respondent's ministerial ballot policing duty.
TIMELINESS OF ACTION IN LIEU OF PREROGATIVE WRITS
Counsel below contended, and the Honorable Jack M. Sabatino, in his
decision, agreed, that Appellant brought his action too late. Appellant
rigorously contends that assertion to be false. Feeling the weight of
the impending election, Appellant wasted no time initiating litigation
on October 27, 2008, only five days, including a full weekend, after
he first learned of Respondent's misfeasance of office. Counsel and
his Honor have misinterpreted the statute they rely upon.
Statutory objection deadlines listed in N.J.S.A. 19:13-10 apply,
as to the Presidential race, only to certificates (major partys) and
petitions (independant partys) of nomination for the electors of each
party. As long as such nominations follow statutory rules of
construction, which Appellant stipulated below that they
did, then such nominations were valid under the statute.
Furthermore, Appellant doesn't have the legal right to object to
a political party's choice of candidate as such party is not a public
official or agency, and has no Constitutional or statutory mandate.
As private citizens they may, by law, nominate whoever they like.
New Jersey voters must rely upon the executive power of the
Secretary of State to safeguard the integrity of our electoral process,
especially during Presidential cycles when she must be most
vigilant of her oath of office. And if Respondent-Secretary doesn't
protect the citizens of New Jersey, then it is up to the citizens of
New Jersey to command her to do so via the eloquent tradition
of writ of mandamus which in New Jersey falls under the statute
as an action in lieu of prerogative writs.
Appellant's genuine cause of action accrued on September 22, 2008,
when Respondent certified and delivered the 19:13-22 statement to the
clerks of the several counties. The "statement" was a final State agency
decision which triggered Appellant's exclusive avenue of action under
N.J. Ct. R. 2:2-(a)(2), a direct appeal, as of right, to the Appellate Division.
Since the general limitation for commencing actions in lieu of prerogative
writs is set at 45 days, according to N.J. Ct. R. 4:69-6, Appellant was well
within such timeframe when he filed a Complaint In Lieu of Prerogative
Writs with the Honorable Jack M. Sabatino on October 28, 2008.
APPELLANT'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THERE WERE NO GENUINE ISSUES OF MATERIAL FACT AS TO RESPONDENT'S FAILURE TO EXECUTE HER STATUTORY AND CONSTITUTIONAL DUTIES TO PROTECT THE INTEGRITY OF NEW JERSEY BALLOTS
N.J.S.A. 19:13-22 requires the Secretary of State to submit a "statement",
prepared by her hand and under her seal of office, to the clerks of the several
counties of New Jersey, listing the names,
"...of all such candidates for whom the voters within such county may be by law entitled to vote at such election". (Emphasis added.)
Appellant respectfully submits to this Honorable Court that the
purpose of the statement is to instruct the clerks of the several counties
of New Jersey as to which candidates are "by law entitled" to have
their names printed on the ballots. This was disputed by Respondent's
counsel who argues that the statute's use of the term "by law entitled",
must refer to the actual voters who are eligible to vote, and not to the legal
eligibility of the candidates. Appellant gives this argument no quarter.
There are various statutes within the code, which govern the citizens as
to voting, but this isn't one of them. The statute isn't about suffrage. It
commands the Secretary of State to protect voters.
The Secretary of State, not later than eighty-six days before any election whereat any candidates nominated in any direct petition or primary certificate of nomination or State convention certificate filed with him are to be voted for, shall make and certify, under his hand and seal of office, and forward to the clerks of the several counties of the State a statement of all such candidates for whom the voters within such county may be by law entitled to vote at such election. This statement, in addition to the names of the candidates for President and Vice-President of the United States, if any such have been included in any such certificate or petition filed with him, shall contain the names and residences of all other candidates, the offices for which they are respectively nominated, and the names of the parties by which or the political appellation under which they are respectively nominated. Candidates nominated directly by petition, without distinctive political appellation, shall be certified as independent candidates. Similar statements shall be made, certified and forwarded, when vacancies are filled subsequently, according to law.
As a result of Respondent's misfeasance, New Jersey ballots for the
upcoming election contain the names of three Presidential candidates
who are not, by law entitled, to hold the office of President of the United
States, since they are not "natural born citizens" as is required by Article
2, Section 1, of the Constitution of the United States.
Republican candidate John McCain was born in Panama. Socialist
Workers Party candidate Roger Calero was born in Nicaragua. And
the birthplace of Democratic candidate Barack Obama has not been
verified by Respondent.
The State of New Jersey is granted rights under Article 2, Section 1,
of the United States Constitution regarding the issuing of ballots for
New Jersey voters as well as the qualifying of candidates to appear on
those ballots for the Presidential election. The executive in charge of
maintaining the integrity of New Jersey ballots is deemed to be the
Secretary of State by Title 19 of the New Jersey Statute Annotated.
N.J.S.A 19:13-22 provides no safe harbor to:
- candidates not entitled by law to appear on New Jersey ballots
- candidates who might be entitled to appear on New Jersey ballots
- candidates who probably are entitled to appear on New Jersey ballots
The statute is very specific, the candidates must be by law entitled
to appear on the ballots.
Respondent took an oath of office and swore to uphold, not just the
Constitution of the State of New Jersey, but also the United States
Constitution. As the executive in New Jersey charged with securing
ballots from fraud and deception, her prescribed duty is merged by legal
fusion, in that the statutory term, "by law entitled", must be subordinate
to her Constitutional duty as the chief executive in charge of elections who
protects the office of President from ineligible candidates. This is because
Article 2, Section 1, of the United States Constitution sets forth the minimum
requirements which make candidates, by law entitled, to be eligible to hold
the office of President of the United States:
No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.
The Supremacy Clause, Article VI, Clause 2 of the United States
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Therefore, the requirements of N.J.S.A. 19:13-22 mustbe interpreted,
in so far as the election for President of the United States is concerned,
in light of Article 2, Section 1, of the Constitution. Therefore, the words
"by law entitled" in the aforementioned statute must incorporate
the requirements for the Presidency set forth in the United States
It is not disputed that Secretary Wells conducted no investigation to
determine whether the major party candidates for President were
constitutionally eligible for the office of President. She accepted the
certifications of nomination from both major parties under the assumption
that the candidates were eligible, but she did nothing further to verifiy such
Respondent's Counsel's brief in repsonse to Appellant's complaint does
not dispute the facts. Instead, Respondent's Counsel argues that the Secretary
of State's role, as to elections in New Jersey, is only clerical:
"This matter rests upon Appellant's misreading of a statute. By misreading a modifying phrase, he has taken what is the Secretary of State's clerical function under N.J.S.A. 19:13-22 to certify a list of names to county clerks, and manufactured a requirement to broadly investigate the lineage of candidates for the highest federal office."
To that, Appellant argues, if not she, who then is responsible for protecting
the integrity of New Jersey's electoral process? Respondent is named specifically
in N.J.S.A. 19:13-22. The statement required therein is required to be made by
her hand, under her seal of office.
"A State has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies." Jenness v. Fortson, 403 U.S. 431, at 442. "It is clear that preservation of the integrity of the electoral process is a legitimate and valid state goal." Rosario v. Rockefeller, 410 U.S. 752, 761; Bullock v. Carter, 405 U.S. 134, 145 (1972).
If the Secretary of State's role is clerical, than who is responsible for Roger
Calero appearing on New Jersey ballots? The official Presidential candidate
for the Socialist Workers Party is Roger Calero. Mr. Calero was born in
Nicaragua. The Socialist Workers Party has gained official access to
ballots in ten States that Respondent is aware of. And, despite the fact
that the Socialist Workers Party has qualified to have their chosen candidate
listed on those ballots, state election officials from Colorado, Florida, Iowa,
Louisiana, and Washington have all, for good and legal cause, refused to
list Mr. Calero on the ballots since, having been born in Nicaragua, he is
not a "natural born citizen" as is required by Article 1, Section 2, of the
United States Constitution. In those states, a stand-in candidate,
Mr. James Harris, has been listed in place of Mr. Calero.
Furthermore, Respondent's counsel, in his reply brief, never discusses
Respondent's Constitutional duty to uphold the Constitution, nor does
the Honorable Jack M. Sabatino address the Secretary of State's
oath of office meets Constitutional nexus in his decision.
With three ineligible Presidential candidates on their ballots, New Jersey
voters will witness firsthand, the fraud their electoral process has become due
to Respondent's misfeasance of office. Appellant respectfully requests emergency
relief be granted in order to restore integrity to New Jersey's electoral process.
CANDIDATES OBAMA, MCCAIN, AND CALERO ARE NOT ELIGIBLE TO THE OFFICE OF PRESIDENT BECAUSE THEY AREN'T NATURAL BORN CITIZENS AS DEFINED BY ARTICLE 2, SECTION 1, OF THE CONSTITUTION OF THE UNITED STATES.
No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President;
REPUBLICAN CANDIDATE McCAIN
Petitioner begins this argument with a conclusion: had the US legislature
intended to grant "natural born citizen" status to all who were born on US
soil, then the 14th Amendment would contain the words "natural born
citizen", but it doesn't. Republican candidate Senator John McCain was
born in Panama. Panama is not considered U.S. soil, nor has it ever been
considered as such. The Naturalization Act of 1790 was the only
Congressional act which has ever attempted to confer "natural born
citizen" status. The relevant portion reads as follows:
"...the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens..."
However, the Naturalization Act of 1795 specifically repealed the act of
1790 and replaced it with virtually the same clause as that of 1790,
except the words "natural born" were deleted and have never been
replaced by Congress. The 1795 act reads as follows:
"the children of citizens of the United States born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States."
So Congress effectively kept the part of that clause which granted
citizenship, but repealed the words "natural born" from that level of
citizenship. Congress never again attempted to legislate a definition
of "natural born citizen", and it's probably not even possible for them
to do so without a Consitutional Amendment. The United States
Department of State's Foreign Affairs Manual at 7FAM1116.1-4(c) states:
"Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to U.S. jurisdiction and does not acquire U.S. citizenship by reason of birth."
Indeed, it is well established by precedent that children born
abroad of United States citizens are not granted citizenship by
the Constitution, but rather by statute. The 14th Amendment
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States
John McCain was neither born on United States soil, nor was he naturalized.
He is a citizen at birth by statute. This is discussed in the Foreign Affairs Manual:
7 FAM 1131.6-3 Not Citizens by “Naturalization”
Section 201(g) NA and section 301(g) INA (formerly section 301(a)(7) INA) both specify that naturalization is "the conferring of nationality of a state upon a person after birth." Clearly, then, Americans who acquired their citizenship by birth abroad to U.S. citizens are not considered naturalized citizens under either act. (Emphasis added.)
The Constitution confers three types of citizen status:
- "natural born citizen", but only with regard to eligibility
to hold the office of President
- "citizen" to those born in the United States via the 14th
- "citizen" to those naturalized in the United States via
the 14th amendment
McCain is none of the above. He wasn't born on United States
soil and he wasn't naturalized in the United States. Instead,
McCain may claim citizenship from 8 USC 1403(a):
“Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.”
McCain is in the class of citizens who obtain their citizenship at birth,
but not from the Constitution, but rather federal statute. In Rogers v. Bellei, 401 U.S.
815, 828 (1971). The Supreme Court stated:
...[C]children born abroad of Americans are not citizens within the citizenship clause of the 14th Amendment.”… “To this day, the Constitution makes no provision for jus sanguinis, or citizenship by descent... “Our law in this area follows English concepts with an acceptance of the jus soli, that is, that the place of birth governs citizenship status except as modified by statute.” Id. at 828.
So, not being born on US soil, McCain cannot be a "natural born citizen".
The Foreign Affairs Manual weighs in on the issue as follows:
7 FAM 1131.6-2 Eligibility for Presidency
a. It has never been determined definitively by a court whether a person who acquired U.S. citizenship by birth abroad to U.S. citizens is a natural born citizen within the meaning of Article II of the Constitution and, therefore, eligible for the Presidency.
b. Section 1, Article II, of the Constitution states, in relevant part that “No Person except a natural born Citizen...shall be eligible for the Office of President,"
c. The Constitution does not define "natural born".
The “Act to establish an Uniform Rule of Naturalization”, enacted March 26, 1790, (1 Stat.103,104) provided that, “...the children of citizens of the United States, that may be born ... out of the limits of the United States, shall be considered as natural born citizens: Provided that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”
d. This statute is no longer operative, however, and its formula is not included in modern nationality statutes. In any event, the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes. (Emphasis added.)
Appellant would point out that the manual fails to mention that
Congress specifically repealed the "natural born" part of the 1790 act.
Recently, the US Senate has issued a resolution stating that McCain
is a "natural born citizen" eligible to be President, but the resolution
has absolutely no legal effect. It is simply an opinion and as such
it holds no authority whatsoever.
Furthermore, while Congress could have at least attempted
to pass legislation granting "natural born citizen" status to
children of US citizens born abroad such as Senator McCain, Congress
has not done so. The 14th Amendment also requires that, in
order for citizenship to be conferred thereby, whether born on
US soil, or naturalized in the US, the person also be subject to
the jurisdiction of the United States. And because of this caveat,
"natural born citizen" status is proved to be a very special
requirement specifically necessary for those who would be
eligible to the office of President of the United States. A natural
born citizen has no encumbrances or conditions whatsoever
upon his citizenship.
Senator John McCain is an American patriot who has valiantly
suffered more for this country than most of us ever will. He has
shown bravery beyond that which the country has any right to ask,
and it is with very deep and sincere regret that I respectfully request
that this Honorable Court order the Secretaries of the several States
to remove John McCains name from the ballots.
DEMOCRATIC CANDIDATE BARACK OBAMA:
First, I must address, out of respect for Senator Obama, that
Judge Sabatino's lower court decision makes an egregious error
wherein it states that Appellant suggested Senator Obama's
father might have been born in Indonesia. Appellant never made
any such allegation in any of Appellant's papers. I have been
assured by his Honor's clerk that the error will be corrected.
As regarding the issues surrounding Senator Obama's birth
certificate, and if it may please this Honorable Court, I would point
out that Senator Obama has not been presented with a genuine
legal request from a party with proper standing to command
him in any way, and therefore he has no legal responsibility
to submit or to bend his integrity. And for that, he certainly
Appellant believes that if Senator Obama is presented with a legal
request from a government authority sanctioned to make such
request, that Senator Obama will respond accordingly and put
this issue behind him forever.
That being said, petitioner regretfully submits that since candidate
Obama was born to a Kenyan father, he also is not eligible to the office
of President since is not a "natural born citizen" by the Constitution.
Appellant respectfully requests that this Honorable Court order the
Secretaries of the several States to remove Barack Obama's name from
Appellant respectfully submits to this Honorable Court, once again,
that had the legislature intended to grant "natural born citizen"
status to all who were born on US soil, then the 14th Amendment
would contain the words "natural born citizen", but it doesn't.
And so this proposition leads to the logical conclusion that
a natural born citizen is a citizen born in the United States to parents,
neither of which is an alien. Having an alien parent would tie such
person at birth to the possibility of other loyalties and laws. And such
a person, even if he be as loyal and devoted to this country as Senators
Obama and McCain have proven to be, is not eligible to hold the
office of President of the United States.
Appellant's standing was not challenged in Respondent's reply
brief, nor was it challenged in his Honorable Sabatino's order and decision.
However, Appellant discusses the issue below in respect to this most Honorable
Court's superior jurisdiction. In Ridgewood Education Association v Ridgewood
Board Of Education, 284 N.J. Super. 427 (App. Div. (1995)), the Court stated,
"We see no reason why this State's historic liberal approaches to the issue
of standing in general....should not apply to taxpayer suits challenging the
quasi-legislative actions of local boards of education." Silverman v. Board of Ed.,
Tp. of Millburn, 134 N.J. Super. 253, 257-58 (Law Div.), aff'd o.b. 131 N.J. Super.
435 (App. Div. 1975).
The policies of justice regarding the sanctity of voting rights were also
stated in New Jersey Democratic Party v. Samson, 175 N.J. 178,
814 A.2d 1028 (October 2, 2002). Although the petitioner bringing
suit in that case was a political party, the voting rights discussed
and protected were those of individuals. Therefore, the reasoning
of that case should apply when the petitioner is an individual voter.
Appellant's fundamental right to vote for a candidate who will not be
disqualified after the election is now threatened by the inclusion on
New Jersey ballots of three ineligible candidates.
"When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter." Bush v. Gore, 531 U.S 5, 6 (2000)
And finally, Appellant's fundamental right to live in the United States
governed by a President and Commander In Chief who is Constitutionally
eligible to the office of President is also threatened. Since this action is so very
grounded in the interests of justice, and supported by all of the above,
Appellant respectfully requests that this court recognize his standing.
Appellant respectfully submits to this Honorable Court that while the
limitations of our Constitution may at times appear unfair, it is important
to remember that it is the restrictions which hold us to the Document, as much
as it is the freedoms that bind us together as a nation.
"I certify that the foregoing statements made by me are true. I am aware
that if any of the foregoing statements made by me are willfully false, I
am subject to punishment."
___________________________________, November 3rd, 2008
Leo C. Donofrio, Pro Se