- The Washington Times - Friday, December 5, 2008

ANALYSIS/OPINION:

The Supreme Court will get a first look Friday at a little bomb with the potential to make a big noise. The operative word is “potential.” Almost nobody thinks the justices, who can read election returns as well as the law, will light the fuse.

But it’s an interesting story, nevertheless, since we have not yet actually elected a president. This may come as news to millions who voted for Barack Obama and John McCain and thought Nov. 4 was the end of it. But Nov. 4 was merely the day we elected the men and women who will meet in 50 state capitals Dec. 15 to actually elect the president.

The lawsuit, Donofrio v. Wells, challenges the qualifications of Barack Obama to serve as president of the United States based on whether he is a “natural born citizen” as defined in the Constitution. The court will first decide whether to hear the merits, if any, of the question.

The particulars are complicated, as the particulars always are when the lawyers throw law books at each other.

Donofrio v. Wells began when a New Jersey man, Leo Donofrio, sued Nina Mitchell Wells, the secretary of state of New Jersey, seeking to stay the election until the courts sort out the facts of the birth 46 years ago of Barack Hussein Obama. Many legal scholars say the lawsuit has scant chance of success, and the mere fact that the Supreme Court has agreed to consider whether to take up the case doesn’t necessarily mean very much.

Donofrio v. Wells is only one of several legal challenges to Mr. Obama’s version of where he was born, six lawsuits in Hawaii and one each in New Jersey, Ohio, California, Kentucky and Pennsylvania.

Alan Keyes, who lost a race for the U.S. Senate to Mr. Obama in 2004, is perhaps the best known plaintiff. One angry plaintiff sued “the Peoples Association of Humans, Animals Conceived God’s Religions, John McCain (and) USA Govt.;” the same person earlier had sued Wikipedia, the Web encyclopedia, and “All News Media.” All were dismissed for lack of standing. Tilting at windmills is as American as filing a lawsuit.

One of those earlier suits was filed by Philip J. Berg, a former deputy state attorney general of Pennsylvania. The judge in Philadelphia threw out the suit as “frivolous and not worthy of discussion,” and wrote a 34-page memorandum and opinion discussing why it was not worthy of discussion. Mr. Berg’s claims were “too vague and too attenuated” to confer standing. This suit was filed just as the Democrats were gathering for their national convention in Denver, and set off considerable buzz in the press tents. But the story died quickly in the mainstream media, Mr. Obama’s Praetorian Guard.

But not on the blogs and obscure Web sites of the Internet, and the buzz returned in full throat this week. Even Pravda, once the mouthpiece of the Soviet Communist Party, has taken notice with a highly flavored account, accusing Mr. Obama of admitting he was not a legal citizen, which he has not.

The gist of the accusations is that Mr. Obama was born in Kenya and his Hawaiian birth certificate is fraudulent, that it was filed through a loophole in Hawaii law that allows a birth to U.S. citizens in a foreign country to be registered as a live birth in Hawaii. The Obama campaign released a copy of the birth certificate, but not the original, and Hawaii officials, citing privacy concerns, said no one could see the original unless Mr. Obama authorized access, which he has not done.

This has led to furious speculation on the Internet that Mr. Obama’s parents returned to Hawaii with him shortly after his birth and simply registered his Kenyan birth certificate, certified by the doctor who delivered him and by the hospital where he was born, with the Hawaii Department of Health. Why, these skeptics ask, won’t the president-elect authorize release of the original Hawaii certificate and squelch speculation once and for all?

It’s a good question, though lack of his asking doesn’t prove anything.

The Constitution stipulates that only “natural born” citizens are eligible to be president, and this has been interpreted to mean “born in the U.S.A.” Similar questions were raised about the eligibility of George Romney - father of Mitt - when he briefly ran for president in 1968. He was born abroad to Mormon missionary parents, both American citizens.

Questions were raised this year about John McCain, born to Navy parents in the old U.S. Canal Zone. But that was American territory, like Guam and Puerto Rico, and the U.S. Senate adopted a resolution saying a birth in the Canal Zone, which has since reverted to Panama, was OK.

One way or another, the Supreme Court is likely to say Mr. Obama’s birth was OK, too.

• Wesley Pruden is editor emeritus of The Washington Times.

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