Case 3:'12-CV-00280-HTW-LM Documont

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Pagel olT

Dr. Orly Taitz, ESQ

29839 Santa Margarit4 ste 100 Rancho Santa Margarita, Ca 92688 949-683-54 I 1, fax 949-7 66'-7 603

orly.taitz@,gmail,com
PRO SE PLAINTIFF IN MS

IN THE US DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

Dr. Orly Taita ESQ et al

)
) )

cAsE l2-cv-280
HON, HENRY WINGATE PRESIDING

Democratic Party of Mississippi et al

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PER ORDER OF THE COURT PIAINTIFF SUBMITS THIS SUPPLEMENTAL BRIEF

I. PRECEDENT ON STAYING CERTIFICATION OF ELECTION

1. Originally this case was filed under MS code 23-15-961, later 23-15-963. Ori8inally defense stated that the case was filed 1 day late, however above statutes do not specify calendar days

or business days and whether mail box rule apply. MS paralegal Sandra lnman provided an affidavit Exhibit 2 that she called the clerk ofthe court and was instructed that statute specified business days, which explains the discrepancy. Additionally Defense jn their motion to dismiss claimed that the case was filed too early, as Obama was not nominated yet. He has been nominated now and the case is ripe for adjudication. ln 2010 U.S. District Court Judge Ralph R. Eeistline ordered a STAY of CERTIFICAIION of ELECTION RESULTS by the Secretary of State of Alaska of the results of the election of the U,S. senator Lisa Murkowski pending resolution of constitutional violation challenges in a legal action Miller v Campbell 10-cv-O0252 -RRB USDC of Alaska, Aftr constitutional challenges were resolved, the stay was lifted. Based on this p.ecedent, in case at hand a STAY in certification of election results by the Secretary of State and a STAY in presenting the Certificate of tucertainment to the Eledors can be issued a Mccarthv v. Brisoe 419 U-5. 1317,97 S.Ct. 10, 50 L.Ed.zd 49 1976 Mccarthy is a case coming out of the 5th Circuit. U-5, Sup.eme Court granted an emergency injunctjon and ordered the Secretary of State of Texas to ptace on the battot the name of an independent candidate for the U,5. President Senator lvlccarthy. Based on this precedent this court can issue a dectaratory retief and an injunction to issuance of the Certificate of votes for Candidate Obama and Certificate of Ascertainment by the Secretary of state.
3. Aside from ce.tifying elections results SECRETARY OF STATE HAS A DUW TO PRESENT A CERTIFICATE OF ASCERTAINMENT TO THE ETECTORAL COLTEGE on the first Monday after second Wednesday in December, which falls on December 17,2012- As this court has jurasdiction to STAY and ENJOIN cerlification of election results, consequently it has jurisdiction to enjo ih presentment of a Certificate of Ascertain ment to the electora I college.

c.

Duty to certill the Certificate of nomination. Secretary of state of Mississippi Delbert

Hosemann certified the Certificate of Nomination of Barack Obama which was provided to him by the Nominating convention of the Democratic Party. The certification stated " WX DO

HERIBY CERTII-Y tlat the following ale the nominees of said Partl for President and Vice President of the United States respcti!ly and that the following are legally qualified to sen as Prcsident and Vice President of the United States respectively under the applicable provisions ofthe United States Constitution:"
According to the (:lt!lep( dj! ,t Lar! utrll lltgtlrt1t, rr)1. 7j (NY: American Iaw Book CoDpany, r9o5), pp. S38339.When the authotitA to mo.ke o nomination is legallg challenged by objectiotts fled to the certifcate of nomination, and uiolation or disregard of the party rules is alleged, the court must hear the facts and detefiine the quesfion.Plaintifl! in this case, among lhem 3 Presidential Candidale. duly registered as srrch, challenged the nomination of Barack Obama due to fraud commitied by him in his claim of eligibility and his use of forged lDs, namc not legally his and a stolen Social Security number in

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claiming eligibility. Addiiionally, OCON (ofncial certification ofcandidate ) was falsificd and Certificadon of the Ca4didate sent by the DNC to Secretary of State wds based on fraudulent in lormation.

tu

such this court can issue a DECLARATORY RELIEF THAT sECRETARY OF STATE CERTIFIED

CANDIDATE OBAMA BASED ON INCORRECT/FRAUDULENT INFORMATION PROVIDEO 8Y THE

DNC in its Certification

ofthe Candidate.

Based on such decla.atory

reliefthis court can render

injunctive relief.

II. GOVERNMENTAI. EMPLOYEES CAN SE sUED IN RICO FOR ACTIONS TAKEN WHILE HOLDING PUBLIC OFFICE AND/OR MISUSE OF THEIR PUBLIC OFFICE.
ln her RICO statement p39 Taitz expressly clarified that Defendants are sued as individuals and also as participants in RICO enterprise. Caption and description ofthe parties on page 3 ofthe

that only the Secretary of State is being sued only in his capacity as the Secretary of State. His name was not mentioned. ln regards to other plaintiffs, theae was no statement that they are sued only in their official capacity. They were named by their personal names. such as
FAC show

Alvin Onaka and Loretta Fuddt it was explained where they u,ork and how they are connected to the case and it was explained that they are RICO defendants as individuals, for sctions

tiken while holding public ofrice and/or misuse oftheir public oflice.
Nu-Lif'e Constr. Co.

v. NYC Board of

Education, 779

Employees of the Board of Education of the city of New York were convicted in Civil RICO thir actions in their capacity as employees of the aity.

F. Supp. 248 (E.D.N.Y. l99l) . fo.

From Laflamboy v. Landet.587 F- Supp.2d 914 (N.D. I11.2008): "In addition. public officials for actions t|ken wbile holding public offic and/or misuse of their puhlic office, See, e.g.. United States v. Warner, 498 F.id 666, 696 (7rh Cn. 2001) (atfirming RICO convicliol of fbrmer lllinois govcmor based on activities defendart was scrving as Illinois Secrctary of State and Governor); United States v. Dnrond, 935 F.2d I5I L 1512 (7th Cir. l99l) (affinning RICO conviction of village manager who ''used his official position as Slrcamwood's village manaSer to extort nroney from persons wilh blsiness belbre thc villagc govemment.''). [Footnotc 17.] Indced. as discussed bclow, the Seventh Circuil has held that ccrtain violarions oflilinois' Official Misconduct Statule. specifically, 720 lLCS 5/ll3(d.). which applies to misconduct committed while itr office, can constitute a RJCO prcdic|tc rct. See ljnitcd States v. Camer, 837 F.2d 1404,l419 (7rh Cir. 1987); see also Uniled States v. Cenova. 333 l:.3d 750. 758 (7lh Cir.2003) (720 ILCS s/ll-i(d) "defines a species of bribery" and thus violalions conslitule predicate acts lor RICO purposesl violations of720 ILCS
can be held individually liable

5/ll-3(c). however. do not).P{blic official5 were found guilty in Civil RICO in bribery
Environmental Tectonics v. W.5. Kirkoatrick, lnc., 841 F.2d 1052.1067 l3d Cir.19881,

see

Bierer Companv. Appellant. v. Beafla Blomouist 987 F.2d 1319 fl53 (8th Circuit) "...Were we to accept the districl court's analogy to Williamson, the application of civil RICO in cases of public corruption would appear to be restricted to those cases in which a plaintiff suffers a taking because of bribery or the like. We find no support for restricting RICO'S application in

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(discussing legislative history), cert. deniei. .l5j tl.l. ql0. 102 S.Ct. 1258, 7l L-Ed,2d,449 (1982). and would remove the threal ofhealy civil sanctions from those who choose to corrupt pubt ic officials for their own gain but do so prior to havhg lost to their competitors'\he very timc when such villainy oan have the most e{I'ect." Moreove., the cout should follow thc precedent of Gutenkauf v- Citv of Tempe, No. CV-10-02129-PHX-FJM, 20l l WL 1672065, at *5 (D. Aiz. May 4, 201 !) where it can sua sponte analyze actions of the govemmental oflicials as oficials a.nd individuals. In this citse actions of Onaka and Fuddy were not in furtherance oftheir functions as bona fide govemmental officials but rather as accomplices in a RICO scheme, where they acted with an unprccedented level of malice and knowingly certified complete forgery, claiming it to be a genuine birth certificale- Moreover, their lirther actions show that they acted in fuithemnce of RICO, as otr 05.31.2012 they certified a new, improved forgery! which attomeys fi]r co-defendants Tepper and Begley submifted to this court.
III DEFENSE CLAIMS THAT PLAINTIFF SUED IN RICO UNOER ONI.Y 2 PREOICATE ACTs. THIS IS
NOTTRUE.
PREDICATE ACTS FULLY DESCRIEED IN 49 PAGES OF RICO STATEMET{I, 45 PAGE COMPTAINT as well as exhibits and subsequent pleadings submitted by the Plaintiffs: (1)"racketering

that manner. Such a holding would not be consistent with the purposes of RICO, one ofwhich is to root out public cor:ruption. see United States v. Angelilli, 661) I:.ld 32-33 (2d Cir-1981)

ll,

brlbery, extortion, l& Unlted States Codel Section 201 (rclatlng to bribery), sectloni 471, 472, and 473 (relating to counterfeiting), se.tion 1028 (r.lating to fraud and related activity in connection with identifi.ation documenti, , iection 1341 (relating to mail fraud|, section 1343 (relating io wire fraud), section 1:t44 (relating to financial institution traud), section 1425 (relating to the procurement of citizenshlp or nationaliuation unlaw'ullyl, sectlon 1426 (relating to the reproduction ol naturalization or citirenship papers), section 1427 (relating to the sale of natu.alization or chizenship papers), section 1503 (.elating to obstruction ol iustice), section 1510 (.elating to obstruction of clifiinal investltatlons), sedion 1511 (relatlnS to the obstruction of State or local law entorcement), section 1512 (relating to tampering with a witness, victim, or an infohant), secilon 1513 (relatinS to aetaliating against a witness, victim, or aa informantl, se.tion 192 (relatlng to lalse statement in application and use of passport), section 1543 (relating to forgery or falre use of passpon), eection 15/t4 (relatint to misuse of passport), section 1545 (relatlng to fraud and misuse of visas, pe.mits, and other documents), l1]sedion 1951(relating to lnterteren.e with commerce, robbery or xtortionl, sctioi 1952 (relatiry to r.cketeerin& section 1956 {relatint to the launderlng of monetary instruments}, sectlon 1957 {relaling to engating in monetary tEnsadions in property defved from specified unlawful activity), section 1960 (.elating to illegal money t6nsmitte6), sectlors 23!4 .nd 2315 (relatlng to lnternate transpo,tatior of rtolen property), section 2320 lrelating to trafficklng in goods or services bearing counte.feit narks), (F) any act which i5 indlctable under the lmmlgration and Nationality Act, sectlon 274 (rlating to bringing in and harboring certaln aliensl, section 277 (.elatiry to aiding or assisting cenain aliens to ente. the United States), or section 278 (.elatintto lmportation ol alien for immoral purpose) it the act lndldabl under such section o{ such Act was committed tor th pu.poie of financial gain, or {G} any act that is lndictable

adivity'

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under arly provision listed in section 2332b(gX5X8); sedions 1461

obscene material)

to

1465 {relating to

2. Defamation was not a predicate act in itself, but a form of intimidation and retaliation agajnst Taitz, who is a victim, witness and informant herein. lt falls under section 1512 (relating to tampering with a witness, victim, or an informantl, section 1513 (relating to retaliating against a witnss, victim, or an infoimant), Systematic oefamation and assassination of her character was done with the purpose of intimidating her and with the purpose of destroying her name as a professional, as a licensed Doctor of Oental Surgery and Attorney and in order to destroy her business: her medical and legal practice, it was done with the goal of impoverishing her and destroying her ability to support herself and her family. One of the most egregious actions was hiring by RICO accomplices of a painter to create a series of pornographic paintings under title "birther OrlyTajtz" and postingthose alloverthe internet, in news papers, holding an exhibition and sending those pornographic paintings to 3 children of Taitz. This constitutes RICO violation under Title 18, United States Code, sections 1461 to 1465 (relating to obscene material) which are predicate offenses for violation of the RICO statutes, 18 u.S.C. 95 1961to 1969 Exhibit 1.
III. REQUESTED 1 SENTENCE CLARIFICATION OF RICO DEFENDANTS AND THEIR ROLES IN RICO
CONSPIRACY.

Defendant's attorney Tepper claimed that the fad that there are a number of defndants in RICO conspiracy means that Plaintiff Taitz is litigious and the claims are improbable. However, let's remember the Watergate, where over 30 high ranking govemmental officials were indicted and went to prison. lf watergate were to be prerented to ludge Sirica as a civil RlcO, it would seem improbable at lilst. obamaForgeryGate is much more egregious, as we have high ranking officials committing most seriou' crimes, committing treason in covedng up forgery in lDs of a foreign national who got in the white House by virtue of lraud and use ot forged lDs. Seeing ObamaForgeryGate through the prism of Watergate, it is easier to understand that allegations are not improbable. More information is provided in some 49 pages of RICO statement, 45 page Flrst amended complaint and come 90 pages of exhibits to the cohplaint. There are 8 named defendants: #lBarack Hussein Obama, aka Barack (Barry) Soetoro, aka Barry Soebarkah, citizen oi lndonesia per his lndonesian school records, committed massive fraud by getting into the White House using flagrantly forged birth certificate, forged Selective service application, last name and fraudulently obtained Connecticut Social Security number xxx-xx-4425, which was never assigned to him according to E-Verafy and SSNVS Obama was complicit in all predicate acts listed above. #2"Obama for America" RICO organization created to finance all of the predicate acts listed above. f3Alvin Onaka- Registrar of the Department of Health State of Hawaii and fi4 Loretta Fuddy, director of Health of Hl. Onaka and l'lddy repeatedly authorized a computer forgery claiming it to be Obama's genuine type written 1961 birth certificate sedions 471, 472, and 473 (relating to counterfeiting), l, section 1028 (.elating to fraud and related activity in connection with identification documents, , section 1341 {relating to mail fraud), rection 1343 {relating to wire fraud), fS Michael Astrue, commissioner of Social Securitv, acted with malice and covered up obama's use of a stolen connecticut social Security number xxx-xx-4425; f6 Nancy Pelosi, as a

Case3:12-oV-00280-HTW-LRA DocumentT3 Filed 11126112 Page6of

Chair ot the Democratic National Convention certified Obama as a legally eligible candidate

for

the U.S. President, while she knew that Obama

as

a foreiSn national using forged lDs f7

Democratic Party of Mississippi acted with malice and committed fraud in submitting Obama's name as a candidate for the lJ.S. President, while knowing that he is a foreign national, who is commitiing fraud and using forted lDs. S8secretary of State and Democratic PartY of MS were put on notice regarding forgerY in Obama's lD5 in November 2008, in Thomas v Hosemann, They covered up all evidence and certified Obama as a legally eligible candidate, while knowing that he is using forged l0s.

who were not listed as named defendants f1 George Sorot billionaire financier financed RICO organizations #2"Fogbow", "Obama for America", May 2010 Fogbow convention. According to fi3Painter Jim laceY George Soros financed creation of obsaene material, series of pornog.aphic paintinSs of Taitz (sections 1461 to 1455 relatint to obicene materiallcreated in order to intimidate her as a whistle blower sedion 1512 (relating to tampering with a witness, victim, or an informantl, section 1513 (relating to tetaliating against a witness, victim, or an informantl. f4Atlorney S.ott Tepper, co-founder of Fogbow, engaged in intlmidation ofTaitz, submitted to court various forgeries, claiming those to be valid birth certificates; #5 A number of employees of different courts who tarnpered with pleadings by Tait2 in order to cover up obama's forged lDs. f5 william chatfield, former director of Selective Service, knowingly and with malice covered up flagrant forgery in the application for the Selective Service), tections 471,472, and 473 (relating to counterfiting), ), tection 1028 (relating to fraud and related activity in connedion with identification doauments, , section 1341 {relating to mail f.aud), section 1343 (relating to wire traud},f7 Paftick Donahoe, Postmaster 6eneral, received two certified mail complaints showing that Obama's alleged selective Service application contains a forged post office stamp with 2 diSits year "80", when
RICO participants,

for over

2OO

vears US post office used 4 digit stamp and all other mail sent in 1980 contained a

4digityear"lg8o".Postmastercoveredupthisflagrantforgery.l,sectiois4TT,4T2,and4T3
(relating to counterfeitinc) ), section 1028 (relating to fraud and related activitv in connection with identification documents, , section 1341 (relaling to mall fraud), section 1343 (relating to wire lraud),#8 Harry Eallantyne, Chief Actuary of Social security, according to National databases, one of ihe Social Security numbers used by Obama, was a oumber of Bailantyne's deceased mother, Lucille Eallantyne. t!l CNN and Ande6on Cooper "360-keeping them Honest" publicized a microfilm of the birth certificate of another person, claiming it to be Obama's. #10 Computer hackrs, who destroyed Taitz web sites, hacked e_mail accounts, #11lohn Does, who tampered with her and her husband's cars, S12 Brian Schatz, former chair of the Democratic party of Hl, Lieutenant Governor of Hl, falsified wording of the certjficate of Candidate, removed words "eligible to Constatution", to cover up Obama's lack of Constitutionaleligibiliry ln summary Plaintiff Taitz suffered over 5500,000 estimated damages, her businesses were destroyed, her good name was assassinated in an effort to tamper with her as a whistleblower, informer and victim, to intimidate her, so she will dismiss her complaint. obama, "obama for America" and accomplices got a financial benefit from Rlco of 51 billion raised from the public and 51 billion of matching funds from the taxpayers for RICO enterprise based on forgery and fraud. Obama donors got estimated 590 billion in kickbacks from obama in the form of Federal grants and U.S. Government backed loans for failing ventures

rl

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Certiflcate of Service
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that perrequestofthe
./

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e'mall with {oregoing supplqmental brief

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Ody faitz ta Svbpoena Pancdke Painlet, --By Stephanie Mencimer. I Wed Jun. 9, 2010 4:00 AM PDT. Tryeet. Dan Lacey. Just bscause she s spent the past few ...

Previous I Next

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Orly Taitz to Subpoena Pancake Painter

-By
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Stephanic Mcncimcr

Wed Jun. 9, 2010 4:00 AM PDT

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Lacey
Just bccause she's spent lhe past few months carnpaigling to become Calilbmia's next secretary ofstate docsn't mean that birlhcf'quccr) Dr.-9rb._Iq!U has given up her many court battles seeking to prove that President Barack Obama is not ar Arncrican citizen. On May 19, Taitz filed a "motion to reconsider" in her mostly failed lawsuit agairrgt Obama in DC federal court. Ard one bssis for the motion was nore other than a Mo thet Jones afliclel Yes, Taitz lold the coun that she has discovered new evidence of "intimidalion and harassment" against her in m\ slorl lraQrla!435 the Minnesota "Painter of Pancakes." who has painted some trude ponraits of Tailz giving birth to a pancake.

Taitz told me in May that her opponents have sent copies olthe painting to her children and family along with lhrealening enails in what sh believes was an attempt to scare her into dropping her insurgent caDpaign to be the COP'S candidate for Califomia's secretary ofstate. She suspects that one of Obama's powerfi, allies commissioned the painting- I asked Lacey about that and he was cagey on the subject- So Taitz wants to subpoena him to force hiln to out his benefactor. Shc \irilcs:
"Recent article by Washington buno [sic] conespondent Stephanie Mencimer shows that "artist" Diu Lacey, who painted despicable art work series "Birther Orly Taitz", showing I aitz nude, wilh her legs spread, gjving birth and holding bloody placenta, which were se'It to her childrcn, posted on the Intemet and a local paper, did not work or his own accord. Daa Lacey admitted, that he was cornmissioned, paid by someone to do this, it was a clear attempt to intimidate Taitz alrd pressure her to withdmw as a candidate...Lacey refused to provide the reporter Stephanie Mencimer with the name ofthe person who hired him, wbo paid him, however duing the depositions and upon subpoena this inforrnation will be available and will be provided to [the] court. At this time Tailz ca@ot state with ce.tainty who paid Dan Lacey, however it is cornmon knowledge, that Billionaire George Soros. one ofthe biggest backers ofobama. through his organization Moveon.org, has oonunissioned numerous artists to promote Obarna and denigrate
his oppotrents aod critics."

in which he promises to reveal the idenlity ofthe "puppeftaster" behind the Panca-ke Bjfiher series, pixel by pixel, as part ofhis new legal defense t'undmising. FIe prcmises to enter the name ofanyone who donatcs $2.37 to the defense lund into a drawing 10 win the new painting, which will be awarded at a "Colof of Oriy" art show ftrn&aiser in Mimeapolis on July 4t11. Watch the video here:
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IN

THE UNITED STATES DISTRICT COURT

F'OR

THE DISTRICT OF AIASKA

.JOE MTI,],ER,

Case No- 3:10-cv-0252-RRB

ORDSR RECIADING P'NDTNG I'OTIONS AND SATIIlle
PROCEEDINCS

LIEUTENANT GOVERNOR CRAIG CAMPBELI-, in his official capaci.ty,' and the STATE OF ALASKA, DIVISION OF EIJECTIONS,

Defendants.

Before the Court, at Docket 13, is Plainti-ff ,]oe Miller rrith

for Pretiminary Injunction in which he seeks to enjoin the Lieutenant Governor of Alaska, thlough the Division of Elections,
a t4otion

from counling the votes cast in the aace for Unitsed States Senator

for Alaska. Defendants

DockeL

at Docket 26 and Plaintiff replies at 35. At Docket 33 Plaintiff seeks to file an &rcnded ltlotion
oppose

for Preliminary Injunction and i.ncludes bis arguments for this additional relief in his filing at Docket 35. In order to expedite this matter, the Court hereby
GAe

!s the Motion to

Amend

at

DockGt
s

33 without seeking .esponse from Defendants, fo! Plaintiff, filings.

OFDER RE PENDING IiIOIIONS AND STAYING PROCEEDINGS

lequest was certaj.nly anticipated and irnplicit in his earlier

3.10-cv-0252-RRB

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The cour:t has feder:af question jurisdiction to hear this nalter qiven the significant conslitui:ional questions arising fron

the dispute between the parties as to whether the Division of Elections has, among other things, violated the Alaska Legisfature's prer:ogative by counting votes ln a manner conLrary to the legislative directlve. As indicated by the Court in its order ats Docket 16, the process for counling votes and segregaling disputed ballots appears to have been carefully thought out and provides anple protection fo! both parties. There sinply is no iust reason to delay or enjoin the counling of baflots. Plaintiff's Motion for Preliminary Injunction at Docket 13 regarding the counting of ballots is
lherefore
DENIED.

afso asks the Court to enjoin the Defendants f'om certifying the resuLts of Ehe 2010 general election for the office of U-S. Senator and prohibit the Division fron accepting as valid

Plaintiff

any wr:ite-in votes

in which a candidate's

name

is misspeffed or is

not written on the ballot as it appeats on the candidate's write-in declaration of candidacy. Plaintiff is askinq this Court to order

set forth in coun! write-iB ballots AS 15.15.360(a)10, (a) (11) and (b), without deviation ln making
Defendants to

this latler request, Plaintiff asks the Court to determine purefy Afaska law, i.e. how this ALaska Statute should be applied to the
ORDER RE PENDINc MOTTONS ANN STAYING PROCEEDINCS

'

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curre!r! dispute. More specificalty, Plaintiff deviates in any way from the manner the

contends that if

candidate Mu!korski's name is nisspelfed on Ehe !,rrite-in baLlot or

name appealed

on the

declaration of candidacy, that ballot sbould not be counted. This is certainly one very possible interpretation of t.he disputed

statute. Defendants contend, houever, that if the spelfing of "l,isa Murkowski" or "Murkowski" is such that the voter's intent to vote for candidate ballot
Murkowskj-

is cLear, that should be sufficient

and the

shoufd be counted for her. This too is

a viable

inlrerpretation of the disputed slatute- The issue now is i,,ho shoufd properly determine the answer to this question, the FederaL Court

o! the State Court? And tbe anslrer appears clear to the

undersigned- This is a State-ride election, conducted under State

Ia!r, involving State candidates and impactinq State citizens. The Courts of the State of Alaska are in the best position, at least initially, to apply Alaska law and to detennine vrho non this election. While it is not the role of the State Court to ignore oi re-write the la\r, it ceitainly can interpret it when necessary. Therefore. pludence, ptopriety, principles of judicial restraint, and a desire to avoid unnecessary constitutionaf
adjudication lead this cour:t to abstainl from resolving the current
Railroad conmissi,on v. Pullman Co-, 312 U.S. 496 (1941) i Burdlck v. Takushi, A46 F.2d 58?, 588-89 {9th Ci!. 1988)
ORDER RE PEND1NG I4OIIONS AND STAYING PROCEEDINGS

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dispute and refer the palties to the appropriate State tribunaf.

The court .is confidedt that tshe courts of Alaska can quick.ly
address and resolve these matters. So long as the United States

Constitution is not violated, this really is a Stale matter.

Therefore, for the reasons articuLated above and by Defendants

Motion to Dismiss for l,ack of Federaf ouestion irurisdiction or in the Alternative to Abstain at Docket 17, which in their Plaintiff responded to at Docket 20, this matter is hereby
SIAYBD

so that the parties may bling this dispute before the appropriate

scate tribunal. The court shall letain jurisdlction pursuanlr to

!U!!Sa! and t ill remain available to revie$t any constitutional issues that may exist once the State rernedi,es have been exhausted. In order to ensure that these Eerious State fa, issues are resolved prior to certificatlon of the election, the Court hereby conditionally
GRA}fIS

Plaintiff's notion to enjoin certification of

the election. If an action is filed in State Court on or before Norr@br 22, 2O1,O, the lesults of this election shall not be certified until the lega1 i.ssues raised eherein have been fully finally lesolved. IT IS
SO ORDERED.
ENTERED

and

this 19th day of

November, 2010.
S/RALPTI R. BElSTIINE UNITED STATES DTSTRICT .'UDGE

ORf,IER

RE PENDING UOTIONS AND SIAYING IROCEEDINGS

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EXHIBIT 4

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McCarthy v. Briscoe, 429 U.S. 1317 11976)

Supreme Court of the United States Eugene J. MCCARTHY et at., Petitioners,

Dolph BRISCOE, Governor of Texas and lv{ark W. White, Jr,, secretary of State of the State of TexasNo. A-247.

sept. 10, 1976.

429 U.S. 1317,97 S.Ct. ',10, 50 L.Ed.2d 49

'1317 ..11 Mr. Justice POWELL, Circuit Justice. This is an application for injunctive re(ief,FNl presented to me as Circuit Justice. The appticants, former Senator Eugene J. lrtccarthy and four Texas voters who support
Senator Mccarthy's independent candidacy for President, have asked that I order Senator Mccarthys name piaced on the 1976 general etection ballot in Texas. They

sought retief without success from a three-judge District Court for the Weste.n District of Texas D. C., 418 F.supp. 816 and, on aPpeat, from the Court of Appeals for *1318 of the record before the Fifth circuit 539 F.2d 1353.FN2 Upon consideration

me, I have conciuded that the courts betow erred in faiting to remedy a cLear viotation of the appticants' constitutjonal rjghts. I have therefore granted the
requested relief.
FN1. Atthough the apptication is styl.ed "Application for a partiaI stay of an order and judgment of the United States Court of Appeats, Fifth Circuit," the appljcants actuaLty seek affirrnative retief. I haYe therefore treated the papers as an appucation for an injunction pursuant to 28 U.s.c. s 1651 and Rutes 50 and 51 of this Court.

fjted an initial application jn this Court for a stay of the District Court order on September 8, 1976, before they had fiLed an appeat to the Court of Appeats. ln my capacity as Circuit Justjce, ldenied that request on Septembe' 14 on the ground that this Court was without jurisdiction to entertain a djrect appeal from the District Court under 28 U.S.C. s 1253. Ante, p. 1116. See MTM, lnc. v. Baxtey, 420 U.S. 799, 804, 95 s.Ct. 1278, 1281 , 43 L'Ed.zd 636 (1975). I specified that the denial
FN2. The apptjcants

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was without prejudice to the applicants' right to seek relief in the Court of Appeals.

The applicants fited a notice of appeal in the Court of Appeats on September 16; the Court of Appeats denied their request for intertocutory relief on September 23; and

the applicants renewed their application here the fotLowing day.

Effective September 1, 1975 Texas amended its Etection Code so as to prectude candidates for the office of President from qualifyjng for position on the generat election battot as independents. Acts of 1975, c. 682, s 23, codified in Tex.Elec. Code, Art. 13.50, subd. 1 (Supp.1976). Before that date independent candidates for att offjces had been abte to gain access to the batlot by submitting a prescribed number of voters signatures by a deadtine severat months in advance of the generat etection. Tex.Etec. Code, Arts. 13.50, 13.51 (1967); ree American Party of Texas v. white,415
U.s- 767, 788-791, 94 S-CL 1296, 1309, 39 L.Ed.zd 744, (1974). Under the new taw

that method of qualifyjng for the batlot was carried forward for most offices, but not for the office of President,FN3 A Presidentiat candidate must now be a member of a potitica{ party as a precondition to securing a ptace on the batlot. An independent candidate can seek election as President onLy by joining or organizjng a potitjcal party, Tex.ELec. Code, Arts. 13.O7, 13-45 (supp.1976), or by mounting a campaiSn to have hr's supporters "write in" his name on etection day, Arts. 6.05, 6.06 (Supp.1976).
for the offices of Vice Presidential and Presidentiat elector are similarLy excluded from qualifyinq as independents. Art. 13.50, subd. 1 (Supp.1976). ALthough two of the appticants are candidates for the office of Presidentiat elector, they have not specificatly sought re[]ef with respect to their own candidacies. My order of September 27 (see n. 4, infra )is sufficjentty broad to encompass such relief, to the extent necessary to perfect Senator Mccarthy's quatification for general
FN3. Candidates

etection. 0n July 30, 1976, the appticants fiied this suit in the Djstrict Court, ctaiming that Art. 13.50 of the Texas Election " 1319 Code, as amended, viotated the rights "secured to them under Article ll, Section 1, Ctauses 2 and 4, and ArticLe Vl, Ctause 2 of the United States Constitution and the First, TweLfth and Fourteenth Amendments

thereto." The apptjcants asked the court to order Senator Mccarthys name placed on

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the battot or, alternativety, to devise reasonabte crjteria by whjch senator McCarthy might demonstrate support for his candidacy as a means of qualifying for battot posjtion, The appticants submitted affidavits that tended to show that Senator
McCarthy

"l2

was a serious Presidential aspirant with substantial support in many

5tates.
The defendants, the Governor and Secretary of State of the state of Texas, denied that the new law was unconstjtutionat and ctatmed that Senator Mccarthy was barred by Laches from obtaining the injunctive retief he requested. ln support of the laches

ctaim, the defendants prernted the affidavit and Later the live testimony of Mark W. White, Jr., the Secretary of State, to the effect that it woutd be impossible in the time remaining befo.e the November election for the State to verify that Senator Mcca.thy had substantiat support among Texas voters, 0n September 3, 1976, the District Court held that the Texas taw, as amended, was constitutionatly invatid for faiture to provide independents a reasonabLe procedure for
gaining battot access, but dectined to enter injunctive retief. The court perceived its only choice to be one

"between standjng by and permitting this incomprehensible poticy to achieve its apparent objective or substantiatty burdening the entire general etection at the
behest of one who has at teast dawdled over his rights . . . ." Memorandum Opinion, 418 F.supp. at 818.

to fashion meaningfut retief without substantialty disrupting the entire Texas etection scheme," the court concluded that injunctive relief was not warranted. lbid. '1120 On September 21, 1976, the Court ofAppeaLs, 5 Cir., 539 F.2d 1353, denied the appticants request for emergency injunctive relief on the same basis:
us

Betieving

it to be "too tate for

"We are . . . regretfutty constrained to agree with the District Court that because the

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complaint was so Latety filed there is insufficjent time for the Court to devise a petition requirement for ascertatning whether McCarthy has substantial community
support in Texas without disrupting the entire eLection process in that state. . .

."

The fottowing day, September 24, 1976, the applicants presented this application to
me as Circuit Justice.

The new Texas law prectuding independent candidates for President from gaining
access to the generat etection baltot as independents raises no novet issue of

constitutionat law. ln Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974), the Court ftatty rejected the notion that an independent could be forced to
seek battot posr'tion by joining or organizing a politicat party:

"lt may be that the 1% registration requirement

js a vatid condition to extending

baLlot position to a new potitical party. Cf. American Party of Texas v. White, 415
U.S. 767, 94 s.Ct. 1296,39 L.Ed-zd 744 (1974). But the potiticaL party and the jndependent candidate approaches to poUtical activity are entirely different and

nejther is a satisfactory substjtute for the other. A new party organization

contemptates a statewide, ongoing organization wjth distinctive potiticat character. Its goat is typicatty to gain control of the machinery of state Sovernment by etecting its candjdates to pub(ic office. From the standpoint of a potential supporter,

affitiation with the new party woutd mean giving up his ties with another party or sacrificing his own independent status, even though his possib{e interest in the new party centers around a particular candidate for a particutar office. Fo. the candidate
himsetf, it.1321 would mean undertaking the serious responsibitities of quatified party status - . . such as the conduct of a primary, holding party conventions, and the promutgation of party ptatforms. But more fundamentally, the candidate, who ]s by

definition an independent and desires to remain one, must now consjder himseLf a party manr surrendering his independent status. Must he necessarily choose the politicat party route if he wants to appear on the battot in the general election? We think not." ld., at745-746,94 S.Ct. at 1286.
And in Lubin v. Panish, 415 U.5. 709, 94 5.Ct. 1315, 39 L.Ed.2d 702 (1974), the Court

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'.13 characterized as "dubious at best" the intimation that a write-in provision was an acceptabte means Of baltot access:

"The reatities of the etectorat process . . . strongty suggest that 'access via write in votes faLts far short of access in terms of having the name of the candidate on the

batlot. . . . That disparity woutd, itself, give rise to constitutionat questions . . . ." ld., at719 n.5, 94 S.Ct. at 1121.

of these pronouncementsr the District Court was fully justified in characterizing the new Texas law enacted tittle more than a year after Storer and Lubin were decided as demonstrating an "intransigent and discriminatory position" and an "incomprehensibte poticy." Despite this recognition of the clear constjtutjonal infjrmity of ihe Texas statute, the District Court refused to grant the requested relief. The District Court, and the Court of Appeats, apparently assumed that the onty appropriate remedy was to order implementation of the former statutory procedure permitting independent Presidential candidates to demonstrate substantial support by gathering a prescribed number of voters signatures a procedure stitt avajlable to independent candidates for
ln vjew

most other elective offices. Since the signature-gathering procedure invotved not only a fjting deadtine which had long since expired but atso a tengthy '1322 process of signature venfication, both lower courts conctuded that there was too littte time to
impose a signature-gathering requirement without undue disruption of the State s

electoral process.
This Court witl normatly accept findings of a district court affirmed by a court of

appeats, on factuaL considerations such as those underlying a determination of laches.

8ut acceptance of findings of fact does not in this case require acceptance of the conclusion that violation of the appticants constitutionat rights must go unremedied. ln assuming that a signature-gathering process was the only avajlable remedy, the
courts betow gave too littte recognition to the amendment passed by the Texas LeqisLature making that very process unavailabLe to independent candidates for the

office of President, In taking that action, the Texas Legistature provided no means by

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which an independent Presidentiat candidate might demonstrate substantiat voter support. Given this legistative defautt, the courts were f.ee to determine on the existing record whether it would be appropriate to order Senator Mccarthy's name
added to the generat etection batlot as a remedy for what the District Court property

characterized as an "incomprehensibte poticy" viotative of constitutional rights. This

is a course that has been fottowed before both in this Court, see Witliams v. RhodesJ

s.Ct. 1, 21 l.Ed.2d 69 (1968) (Stewart, J., in chambers), and, more recentty, in three District Court decisions invotvtng Senator Mccarthy, Mccarthy v. Noet, 420
89

F.Supp. 799 (D.C.R.1.1976); Mccarthy v. Tribbitt, 421 F.Supp. 1193 (D-C-Det.1976);

Mccarthy v. Askew, 420 F-supp.

n5

(O.C-F1a.1976).

ln determining whether to order a candidate's name added to the battot as a remedy

for a State s denial of access, a court shoutd be sensitjve to the State s tegitjmate interest in preventing rrtaundry list" batlots that "discourage voter parttcipation and
confuse and frustrate those who do participate." "1321 Lubin v. Panish, supra, 415 U.5., at 715, 94 S.Ct. at 1319. But where a State forecloses tndependent candidacy in Presidentiat etections by affordjng no means for a candidate to demonstrate

community support, as Texas has done here, a court may property took to available evidence or to matters subject to judicial notice to determine whether there is
reason to assume the requisite community support. See l\ccarthy v. Askew, supra.

It is not seriousty contested that Senator Mccarthy is a nationatty known figure; that he served two terms in the United States Senate and five in the United States House of Representatives; that he was an active candidate for the Democratic nomination for President in 1968, winning a substantial percentage of the votes cast in '*14 the primary etections; and that he has succeeded this year in quatifying for position on
the generat etection battot in many States. The defendants have made no showing

that support for Senator r'v{ccarthy is less substantiat in Texas than etsewhere.
For the reasons stated, I have ordered that the apptication be granted and that the

Secretary of State ptace the name of Eugene J. Mccarthy on the November 1976 generat election baltot jn Texas as an independent candjdate for the office of President of the United States.FN4 I have consuttedinformalty -1324 with each of my

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Brethren and, although no other Justice has participated in the drafting of this

opinion, I am authorized to say that a majority of the Court wou{d grant the
application. FN5
FN4. The order granting the apptication was issued on Septembet 27, 1976. The Texas

Etection Code does not appear to prescnbe a deadline for the printing of battots for the generat etection. The earliest date when printed ballots are required for any purpose is October 11, 20 days before the etection, when the statutory period for absentee voting by mait begins. Art. 5.05, subd. 4(a) (Supp.1976). Ballots are to be mailed to persons outside the United states "as soon as possibte after the battots become avaitable, but not eartier than (October 3)," Art. 5.05, Subd. 4e, and to others intending to vote by mait on Octobe|l3 "or as soon thereafter as possible,"

A-t. 5.05, Subd. 4(b). Potiticat parties are not required to certify their nominees to the Secretary of State untit September 28, Art. l'1.04 (1967), and the Secretary of State is not required to certify the names of those who have quatified for battot positjon to tocal election officials untit October l, Art. 1.01, Subd. Z (Supp.1976l. Thus there appears to be ample time to add Senator Mccarthys name,
FN5. Mr. Justice WHITE, Mr. Justice

ARSHALL, Mr. Justice BLACKMUN, and Mr.

Justice REHNQUIST have asked to be recorded as holding a different view.

U.s.Tex., 1976.
McCarthy v. Briscoe
429 U.S. 1317,97 S.Ct. 10, 50 L.Ed.2d 49