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Taking Obama birth challenge to Court

From NBC's Pete Williams
When the justices of the U.S. Supreme Court meet on Dec. 5th, in their regular private conference to decide which cases to hear, two lawsuits that have captivated a segment of the blogosphere will be up for discussion.

Both urge the court to consider claims that President-elect Obama is not qualified to be president, because he is not a natural-born American citizen.

Persistent concerns about the qualifications of both major party candidates rank among the oddest aspects of 2008's historic campaign.

Article II, Section 1 of the Constitution provides that "No person except a natural born citizen" is eligible to be president. John McCain's status was questioned because he was born in the Panama Canal Zone and various theories have been advanced to cast doubt on Obama's.

Lawsuits over the inclusion of their names on state general-election ballots popped up around the country and were quickly dispensed with by local courts. But two challengers have pursued their cases to the Supreme Court.

Pennsylvania lawyer Philip Berg claims that the circumstances of Obama's birth are vague and that he may have been born in Kenya. Obama's mother, Berg asserts, later flew to Hawaii to register the birth.

Leo Donofrio, a New Jersey lawyer, contends that election officials in his state failed to ensure that only legally qualified candidates were placed on the ballot. Obama may have been born in the United States, Donofrio argues, but "natural born" status depends on both parents being American citizens. Obama's father was Kenyan.

The justices are unlikely to take up these cases for a host of reasons, not the least of which is the invitation to overturn the results of an election in which more than 66 million Americans voted for Obama. An equally high hurdle is the issue of whether Berg or Donofrio have the legal right to sue claiming a violation of the Constitution.

In dismissing Berg's complaint, a federal judge in Pennsylvania found that he failed to meet the basic test required for sustaining a lawsuit, because he couldn't show how the inclusion of Obama's name on the ballot would cause him -- apart from others -- some particular harm. Berg's stake, the judge said, "is no greater and his status no more differentiated than that of millions of other voters."

Other courts presented with similar challenges have reached the same conclusion, ruling that there is no general legal right to sue over the Constitution's eligibility requirements. Federal courts typically reject claims of legal standing based simply on a litigant's status as a voter or taxpayer.

The Obama campaign had hoped to end the controversy last spring by releasing his actual Hawaii birth certificate. But that prompted further questions about its authenticity, which were compounded when state authorities in Hawaii said they could not vouch for it, because they were constrained by the privacy laws.

Then, on Oct. 31st, the director of Hawaii's Department of Health issued a statement, proclaiming that he had personally seen and verified that the state has "Sen. Obama's original birth certificate on record," which shows that he was born there.