Hollander v. McCain et al CV-08-99-JL 08/24/08 P …

Hollander v. McCain et al              CV-08-99-JL   08/24/08   P
                   UNITED STATES DISTRICT COURT
                     DISTRICT OF NEW HAMPSHIRE


Fred Hollander

     v.                         Civil No. 08-cv-99-JL
                                Opinion No. 2008 DNH 129
Senator John McCain
and the Republican
National Committee


                              O R D E R

     Fred Hollander, proceeding pro se, brings this action

challenging Senator John McCain's eligibility to serve as

President of the United States.   Hollander claims that McCain, by

virtue of his birth in the Panama Canal Zone--albeit to American

parents--is not a "natural born Citizen" eligible to hold the

office of President under Article II, § 1 of the Constitution.

     Though McCain and his co-defendant, the Republican National

Committee ("RNC"), vigorously dispute this claim, they argue that

this court cannot decide it in any event due to a number of

jurisdictional defects:   lack of standing and ripeness, mootness,

and nonjusticiability.    The defendants also argue that Hollander

has failed to state a claim for relief because (1) they are not

state actors, so Hollander cannot maintain any constitutional

claim against them and (2) in any event, any remedy for it would

necessarily violate their own First Amendment rights.
     This court held a hearing on the defendants' motion to

dismiss this action on those grounds on July 24, 2008.   Based on

the arguments presented there, as well as in the parties'

briefing, the court rules that Hollander lacks standing to bring

this action.   The court does not reach the rest of the parties'

arguments, including, most notably, the question of McCain's

constitutional eligibility to be President.



I.   Applicable Legal Standard

     A court faced with a challenge to standing at the pleading

stage, as here, must "accept as true all material allegations of

the complaint, and . . . construe the complaint in favor of the

complaining party."   Warth v. Seldin, 422 U.S. 490, 501 (1975).

Hollander's pro se complaint, furthermore, must be construed

liberally, "held to less stringent standards than formal

pleadings drafted by lawyers."   Estelle v. Gamble, 429 U.S. 97,

106 (internal quotation marks omitted).   Yet even these standards

do not require the court to credit "[e]mpirically unverifiable

conclusions, not logically compelled, or at least supported, by

the stated facts" in the complaint.   Sea Shore Corp. v. Sullivan,

158 F.3d 51, 54 (1st Cir. 1998) (internal quotation marks

omitted); Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).



                                 2
II.   Background

      McCain was born, in 1936, at the Coco Solo Naval Air

Station, a United States military installation in the Panama

Canal Zone.1   At the time, McCain's father--who, like McCain's

mother, was an American citizen--was stationed there on active

duty with the United States Navy.        McCain, by virtue of his

American parentage, is unquestionably an American citizen.          See

Act of May 24, 1934, Pub. L. No. 73-250, § 1, 48 Stat. 797

(amended 1952) ("Any child hereafter born out of the limits and

jurisdiction of the United States, whose father or mother or both

at the time of the birth of such child is a citizen of the United

States, is declared to be a citizen of the United States")2; see

also Act of Aug. 4, 1937, Pub. L. No. 75-243, 50 Stat. 558

(codified as amended at 8 U.S.C. § 1403(b)) (conferring

citizenship on children born in the Canal Zone to one American

parent on or after February 26, 1904, and born to one American




      1
      Though Hollander makes this allegation in his complaint, in
his objection he states, "[s]ince the hospital at the Coco Solo
Naval Air Station did not even exist until 1941 . . . , it is
reasonable to assume that [McCain] was born in the city of Colón
in the Republic of Panama." Hollander has also provided a copy
of McCain's birth certificate, which lists his place of birth as
Colón. The defendants dispute this theory, but it is irrelevant
to the present motion in any event.
      2
       The law is the same today.       See 8 U.S.C. § 1401(c) (2005).

                                    3
parent anywhere in Panama after that date so long as the parent

was employed there by the United States at the child's birth).

     Yet the Constitution provides that "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."   U.S. Const., art. II, § 1, cl. 4

(emphasis added).   The phrase "natural born Citizen" is not

defined in the Constitution, see Minor v. Happersett, 88 U.S.

162, 167 (1875), nor does it appear anywhere else in the

document, see Charles Gordon, Who Can Be President of the United

States:   An Unresolved Enigma, 28 Md. L. Rev. 1, 5 (1968).    The

phrase has thus spawned a largely academic controversy over

whether it excludes those citizens who acquired that status via

birth to American parents abroad.    Compare, e.g., Jill A. Pryor,

The Natural-Born Citizen Clause and Presidential Eligibility:    An

Approach for Resolving Two Hundred Years of Uncertainty, 97 Yale

L.J. 881, 899 (1988) (concluding that those citizens are

eligible) with, e.g., Gabriel J. Chin, Why Senator John McCain

Cannot Be President 17-18 (July 2008) (unpublished manuscript),

available at http://www.law.arizona.edu/FacultyPubs/Documents/

Chin/ALS08-14.pdf (concluding they are not).3


     3
      Though the weight of the commentary falls heavily on the
side of eligibility, see, e.g., Sarah Helene Duggin & Mary Beth

                                 4
     The question has taken on a real-world dimension, however,

during the occasional presidential candidacies of politicians

born abroad:   Franklin D. Roosevelt, Jr., who was born to

American parents in Canada, see Warren Freedman, Presidential

Timber:   Foreign Born Children of American Parents, 35 Cornell

L.Q. 357 n. 2 (1950); George Romney (father to McCain's one-time

opponent in the recent Republican presidential primary, Mitt

Romney), who was born to American parents in Mexico, see Gordon,

supra, at 1; and, now, McCain, see, e.g., Chin, supra, at 3-4.

In McCain's case, the question also takes on an additional layer

of complication due to his birth in the Panama Canal Zone.

     Those born "in the United States, and subject to the

jurisdiction thereof," U.S. Const., amend. XIV, have been

considered American citizens under American law in effect since

the time of the founding, United States v. Wong Kim Ark, 169 U.S.

649, 674-75 (1898), and thus eligible for the presidency, see,

e.g., Schneider v. Rusk, 377 U.S. 163, 165 (1964) (dicta).     So



Collins, "Natural Born" in the USA: The Striking Unfairness and
Dangerous Ambiguity of the Constitution's Presidential
Qualifications Clause and Why We Need to Fix It, 85 B.U. L. Rev.
53, 82-83 (2005) (surveying authority), many of these
commentators acknowledge that the question is not completely free
from doubt, see, e.g., Lawrence Friedman, An Idea Whose Time Has
Come--The Curious History, Uncertain Effect, and Need for
Amendment of the "Natural Born Citizen" Requirement for the
Presidency, 52 St. Louis U. L.J. 137, 143 (2007).

                                 5
the defendants say that, apart from McCain's citizenship by

parentage, he can be President because "he was born within the

sovereign territory of the United States," namely, the Canal

Zone, over which they argue the United States was exercising the

powers of a sovereign at the time of McCain's birth, under the

Hay-Bunau-Varilla Convention.   See Convention between the United

States and the Republic of Panama for the Construction of a Ship

Canal to Connect the Waters of the Atlantic and Pacific Oceans,

U.S.-Pan., art. III, Nov. 18, 1903, 33 Stat. 2234, 2235.        The

Supreme Court, however, has made contradictory comments in dicta

on the status of the Canal Zone.       Compare O'Connor v. United

States, 479 U.S. 27, 28 (1986) (observing that the United States

exercised sovereignty over the Canal Zone under the Convention)

with Vermilya-Brown Co. v. Connell, 335 U.S. 377, 381 (1948)

(observing that the United States has no sovereignty there).

     Hollander claims, due to what he calls McCain's "unequivocal

ineligibil[ity]" for the Presidency, that the RNC "should not be

permitted to nominate him . . . .      This would lead to the

disenfranchisement of [Hollander] and 100 million additional

voters" in the general presidential election.      Hollander, in

fact, claims that he has already suffered disenfranchisement in

the 2008 New Hampshire Republican primary, because it resulted in



                                   6
the allocation of delegates to the Republican National Convention

on McCain's behalf, despite his alleged ineligibility.4

     As a result, Hollander says, his vote in the New Hampshire

primary, and those of others participating in primary elections

in which McCain appeared on the ballot, "will count less than

[the votes of] those who voted in other parties' primary

elections," which led to the allocation of votes to a

constitutionally eligible Presidential candidate.     Hollander adds

that the defendants are responsible for this disenfranchisement

because McCain ran in the New Hampshire primary "under false

pretenses" to his eligibility for the Presidency, while the RNC

"authorized" him to do so.    To remedy his claimed

disenfranchisement in the New Hampshire Republican primary, and

to prevent his further claimed disenfranchisement in the general

election, Hollander requests:   (1) a declaratory judgment that

McCain is ineligible for the Presidency, (2) an injunction

requiring McCain to withdraw his candidacy, and (3) an injunction

requiring the RNC to reallocate the delegates awarded to McCain

as the result of the New Hampshire primary and others, and to

nominate another candidate.



     4
      McCain received about 37 percent of the vote in the
primary, resulting in the allocation of seven delegates to him
and five to other candidates.

                                  7
III. Analysis

     As previously mentioned, the defendants argue that Hollander

lacks standing to maintain this lawsuit.    "Article III of the

Constitution limits the `judicial power' of the United States to

the resolution of `cases' and `controversies'. . . .    As an

incident to the elaboration of this bedrock requirement, [the

Supreme] Court has always required that a litigant have

`standing' to challenge the action sought to be adjudicated in

the lawsuit."   Valley Forge Christian Coll. v. Ams. United for

Separation of Church & State, Inc., 454 U.S. 464, 471 (1982).

So-called "Article III standing" has three requirements:    (1) the

plaintiff has suffered "an injury in fact," (2) that injury bears

a causal connection to the defendant's challenged conduct, and

(3) a favorable judicial decision will likely provide the

plaintiff with redress from that injury.    Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992).     The party bringing the

claim--Hollander here--bears the burden to show his or her

standing to bring it.    Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1, 12 (2004).

      Based on these principles, the Supreme Court has

"consistently held that a plaintiff raising only a generally

available grievance about government--claiming only harm to his

and every citizen's interest in proper application of the

                                  8
Constitution and laws, and seeking relief that no more directly

and tangibly benefits him than it does the public at large--does

not state an Article III case or controversy."   Lujan, 504 U.S.

at 573-74.   These holdings include Schlesinger v. Reservists

Committee to Stop the War, 418 U.S. 208 (1974), where the Court

ruled that a group of citizens lacked standing to litigate the

eligibility, under the Incompatibility Clause,5 of members of

Congress to serve simultaneously in the military reserves.

     Alleging injury "because Members of Congress holding a

Reserve position in the Executive Branch were said to be subject

to the possibility of undue influence by the Executive Branch, in

violation of the concept of the independence of Congress"

embodied in the Clause, the plaintiffs sought an injunction

against the service of congressmen in the reserves as well as "a

declaration that membership in the Reserves is an office under

the United States prohibited to Members of Congress by Art. I, §

6, cl. 2."   Schlesinger, 418 U.S. at 211-12 (footnote omitted).

But the Court called it


     5
      Together with the Ineligibility Clause, this provision
states, "No Senator or Representative shall, during the Time for
which he was elected, be appointed to any civil Office under the
Authority of the United States, which shall have been created, or
the Emoluments whereof shall have been encreased during such
time; and no Person holding any Office under the United States,
shall be a Member of either House during his Continuance in
Office." U.S. Const., art. I, § 6, cl. 2.

                                 9
     nothing more than a matter of speculation whether the
     claimed nonobservance of that Clause deprives citizens
     of the faithful discharge of the legislative duties of
     reservist members of Congress. And that claimed
     nonobservance, standing alone, would adversely affect
     only the generalized interest of all citizens in
     constitutional governance, and that is an abstract
     injury.

Id. at 217 (footnote omitted).   The Court went on to hold "that

standing to sue may not be predicated upon an interest of the

kind alleged here which is held in common by all members of the

public, because of the necessarily abstract nature of the injury

all citizens share."   Id. at 229.

     Schlesinger makes clear, then, that Hollander does not have

standing based on the harm he would suffer should McCain be

elected President despite his alleged lack of eligibility under

Art. II, § 1, cl. 4.   That harm, "standing alone, would adversely

affect only the generalized interest of all citizens in

constitutional governance."   418 U.S. at 217; see also Ex parte

Lévitt, 302 U.S. 633, 634 (1937) (ruling that citizen lacked

standing to challenge appointment of Hugo Black to the Court

under the Ineligibility Clause based on his membership in

Congress when it enacted a new judicial pension plan).

     Hollander, however, argues that the harm to him from

McCain's candidacy transcends simply the right to be governed by

a constitutionally qualified President; Hollander claims it also


                                 10
impacts his right to vote, both in the New Hampshire Republican

Primary and the general election.    This is a difficult theory to

understand, but it appears to rest on the premise that McCain's

mere status as a presidential candidate or party nominee somehow

interferes with the electoral franchise of voters like Hollander

who consider McCain ineligible for the office.    Presumably, those

voters are empowered to address that concern on their own by

voting for a different presidential candidate, whose eligibility

is unimpeachable.   The presence of some allegedly ineligible

candidate on the ballot would not seem to impair that right in

the least, no matter how that candidate performs in the election.

     To be sure, courts have held that a candidate or his

political party has standing to challenge the inclusion of an

allegedly ineligible rival on the ballot, on the theory that

doing so hurts the candidate's or party's own chances of

prevailing in the election.   See, e.g., Tex. Dem. Party v.

Benkiser, 459 F.3d 582, 586-87 & n.4 (5th Cir. 2006); Schulz v.

Williams, 44 F.3d 48, 53 (2d Cir. 1994); Fulani v. Hogsett, 917

F.2d 1028, 1030 (7th Cir. 1990).     But that notion of "competitive

standing" has never been extended to voters challenging the

eligibility of a particular candidate.    See Gottlieb v. Fed.

Elec. Comm'n, 143 F.3d 618, 622 (D.C. Cir. 1998).



                                11
     In Gottlieb, the court drew a distinction between voters'

claims over the allegedly illegal exclusion of their preferred

candidate and the allegedly illegal inclusion of a rival

candidate.   Id.   While the exclusion "directly imping[es] on the

voters' ability to support" their chosen candidate--after all,

they cannot vote for somebody who is not on the ballot--the mere

inclusion of a rival does "not impede the voters from supporting

the candidate of their choice" and thus does not cause the

legally cognizable harm necessary for standing.   Id. (citing

Buckley v. Valeo, 424 U.S. 1, 94 (1976)).    So voters have no

standing to complain about the participation of an ineligible

candidate in an election, even if it results in the siphoning of

votes away from an eligible candidate they prefer.   See id.     As

Gottlieb reasons, only the eligible candidate, or his or her

political party, can claim standing based on that injury.

     In addition to Gottlieb, "[s]everal other Circuit Courts

have also concluded that a voter fails to present an injury-in-

fact when the alleged harm . . . is only derivative of a harm

experienced by a candidate."   Crist v. Comm'n on Pres. Debates,

262 F.3d 193, 195 (2d Cir. 2001) (per curiam).    One of those

courts was the First Circuit in Becker v. Federal Election

Commission, 230 F.3d 381 (1st Cir. 2000).   There, both

presidential candidate Ralph Nader and a group of voters

                                 12
challenged the corporate sponsorship of presidential debates.

Id. at 383-84.   Nader alleged that, in light of "his principled

stand against accepting corporate contributions," he could not

participate in these debates, placing him at a competitive

disadvantage to his campaign rivals, who harbored no such qualms.

Id. at 386.   The court of appeals ruled that this conferred

standing on Nader, but not on the voters.   Id. at 389-90.

     In rejecting the voters' standing, the court reasoned:

     Regardless of Nader's injury, his supporters remain
     fully able to advocate for his candidacy and to cast
     their votes in his favor. The only derivative harm
     Nader's supporters can possibly assert is that their
     preferred candidate now has less chance of being
     elected. Such `harm,' however, is hardly a restriction
     on voters' rights and by itself is not a legally
     cognizable injury sufficient for standing.

Id. at 390 (citations omitted).    That reasoning applies with

equal force here.   McCain's candidacy for the presidency,

whatever his eligibility, is "hardly a restriction on voters'

rights" because it in no way prevents them from voting for

somebody else.   In fact, Hollander alleges that he did just that

in the New Hampshire Republican primary.

     That Hollander's chosen candidate lost despite McCain's

alleged ineligibility does not, as Hollander asserts, mean that

his vote "count[ed] less" than, say, those cast in the New

Hampshire Democratic primary, which presumably gave voters a


                                  13
choice among constitutionally qualified candidates only.6       So far

as the complaint discloses, the New Hampshire Secretary of State

duly counted the votes in each party's primary and apportioned

the delegates to the candidates accordingly under New Hampshire

law.       See N.H. Rev. Stat. Ann. § 659:94.   The apportionment of a

majority of the Republican delegates to McCain, who won his

party's primary here, did not injure Hollander any more than the

constructive exclusion of Nader from the presidential debates

injured his supporters; in each case, the practice simply made it

less likely that the plaintiff's preferred candidate would

ultimately be elected, which, as the First Circuit held in

Becker, does not amount to a judicially cognizable injury.

       Hollander also argues that he "would again be

disenfranchised should he vote for McCain in the general election

and then McCain should be subsequently removed due to his lack of

eligibility."      Unlike Hollander's other "disenfranchisement"



       6
      It is hard to say for sure, since there were some twenty-
one presidential candidates in the New Hampshire Democratic
primary, many of whom are hardly household names. N.H. Sec'y of
State, Candidates for Upcoming Presidential Primary Election,
http://www.sos.nh.gov/presprim2008/candidatesfiled.htm (last
visited July 24, 2008). There were the same number of
presidential candidates on the Republican side. Id. This
underscores the difficulty with Hollander's theory that the
simple presence of an ineligible candidate on a ballot
necessarily disenfranchises all voters who support eligible
candidates in that election.

                                    14
theory, this one does not depend on the failure of his chosen

candidate because of McCain's alleged ineligibility, but on the

success of Hollander's chosen candidate­-who is McCain in this

scenario--despite his alleged ineligibility.   On this theory,

however, Hollander's alleged "disenfranchisement" flows not from

the actions he has challenged here, i.e., McCain's presidential

campaign or the RNC's likely selection of him as its nominee, but

from his subsequent removal from office at the hands of someone

else (presumably one of the co-equal branches of government),

resulting (presumably, yet again) in a President different from

the one Hollander helped to elect.

     This theory presents a number of serious problems, not the

least of which are whether the removal of an elected official by

non-electoral means amounts to "disenfranchisement" of the voters

who put him there, cf. Powell v. McCormack, 395 U.S. 486, 547

(1969), and whether the claim is "contingent on events that may

not occur as anticipated or may not occur at all," Lincoln House,

Inc. v. Dupre, 903 F.2d 845, 847 (1st Cir. 1990), namely,

McCain's election to, then removal from, the office of

President.7   Putting those considerations aside, however, the


     7
      There is also the question of whether "disenfranchisement"
resulting from a vote for an ineligible candidate is the sort of
"self-inflicted" harm caused by the voter, rather than any state
actor, which therefore does not amount to an infringement of the

                                15
theory does not establish Hollander's standing because it does

not "allege personal injury fairly traceable to the defendant's

allegedly unlawful conduct," Allen v. Wright, 468 U.S. 737, 751

(1984), but to the conduct of those--whoever they might turn out

to be--responsible for ultimately ousting McCain from office.

Indeed, McCain and the RNC are trying to achieve the opposite.

     Hollander's real complaint seems to be that, in the general

election, he will face the Hobson's choice of having to vote for

his party's nominee, who is allegedly ineligible, or against his

party's nominee, though he is a registered Republican.    But a

political party retains considerable, if not unlimited,

discretion over the selection of its nominees, see 1 Tribe,

supra, §§ 13-23--13-25, at 1118-1129, and these limitations have

never been understood to incorporate the "right" of registered

party members to a constitutionally eligible nominee.8    Moreover,


franchise right. See 1 Lawrence H. Tribe, American
Constitutional Law § 13-24, at 1122-23 (2d ed. 1988) (reasoning
that, where voters disqualify themselves from voting in one
party's primary under state law by voting in another's, it is the
voters' own behavior, "rather than the operation of state law,
that should be blamed for their inability to cast a ballot,"
discussing Rosario v. Rockefeller, 410 U.S. 752 (1973)).
     8
      The Supreme Court has upheld state laws prohibiting certain
candidates from appearing on the ballot--including those
"ineligible for office, unwilling to serve, or [running as]
another party's candidate"--against challenges founded on the
associational rights of the party who wishes to nominate such a
candidate. Timmons v. Twin Cities Area New Party, 520 U.S. 351,

                               16
Hollander remains free to cast his vote for any candidate he

considers eligible, including by writing in whichever Republican

candidate he believes should be nominated instead of McCain, and

to have that vote counted just as much as those cast for the

party's official nominee, so his right to the franchise remains

intact.   See Reynolds v. Sims, 377 U.S. 533, 555 (1964) (defining

right as "to vote freely for the candidate of one's choice"

without "debasement or dilution of the weight of a citizen's

vote").   Difficult choices on Election Day do not translate into

judicially cognizable injuries.

     This is not to demean the sincerity of Hollander's challenge

to McCain's eligibility for the presidency; as discussed supra

Part II, that challenge has yet to be definitively settled, and,

as a number of commentators have concluded, arguably cannot be

without a constitutional amendment.    What is settled, however, is

that an individual voter like Hollander lacks standing to raise


359 (1997) (footnote omitted); see also Socialist Workers Party
of Ill. v. Ogilvie, 357 F. Supp. 109, 113 (N.D. Ill. 1972)
(rejecting party's First Amendment challenge to exclusion from
ballot of presidential candidate who did not meet constitutional
age requirement). But again, Hollander's claim is not a
political party's challenge to the exclusion of its candidate
from, or the inclusion of a rival candidate on, the ballot; it is
a voter's challenge to the inclusion of an allegedly ineligible
candidate on the ballot. So this case raises no question as to
the constitutionality of a state-law prohibition on ineligible
candidates; Hollander's claim is not that McCain was or will be
kept from the ballot, but that he should have been or should be.

                                  17
that challenge in the federal courts.    See Dugan & Collins,

supra, at 115 (recognizing debates over meaning of Art. II, § 1,

cl. 4, but concluding that voters lack standing to raise that

issue judicially).    Indeed, "[t]he purest reason to deny standing

is that the plaintiff is not able to show an injury to the voter

interest, however much the plaintiff may feel offended by the

challenged practice."   13 Charles Alan Wright et al., Federal

Practice & Procedure § 3531.4 (2d ed. 1984 & 2007 supp.)

(footnote omitted).   Because Hollander can show no such injury,

this court lacks jurisdiction over his attempt to resolve the

question of McCain's eligibility under Art. II, § 1, cl. 4.

Whatever the contours of that constitutional provision, Article

III has been definitively read by the courts to confer no

jurisdiction over this kind of action.



IV.   Conclusion

      For the foregoing reasons, the defendants' motion to dismiss

is granted on the ground that Hollander lacks standing.    All

other pending motions are denied as moot.   The clerk shall enter

judgment accordingly and close the case.




                                 18
      SO ORDERED.



                               ____________________________
                               Joseph N. Laplante
                               United States District Judge

Dated:   July 24, 2008

cc:   Fred Hollander, pro se
      Charles G. Douglas, III, Esq.
      Matthew D. McGill, Esq.
      Amir C. Tayrani, Esq.
      Seth R. Aframe, Esq.




                                19