IN THE FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA 1ST DCA Case No.: 1D13-83 L.T. No.

: 2012-CA-3857 MICHAEL VOELTZ, Plaintiff/Appellant v. BARACK HUSSEIN OBAMA, Florida Democratic Party nominee for President to the 2012 Democratic National Convention; KEN DETZNER, Secretary of State of Florida; FLORIDA ELECTIONS CANVASSING COMMISSION Defendants/Appellees.

On Appeal from the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida Case No. 2012 CA 3857 The Honorable Kevin J. Carroll, presiding

APPELLANT'S REPLY BRIEF

LARRY KLAYMAN, ESQ. Florida Bar No. 246220 2020 Pennsylvania Ave, NW. Suite 800 Washington, D.C. 20006 Tel: (310) 595-0800 Email: leklayman@gmail.com Attorney for Appellant Michael Voeltz

TABLE OF CONTENTS Table Of Citations....................................................................................................iii Introduction...............................................................................................................1 Reply Argument .......................................................................................................2 I. Appellant Has Stated A Proper Cause Of Action And Now It Is The Florida Judiciarys Duty To Determine The Eligibility Of Barack Hussein Obama............ 2 II. The Issue Of Whether Appellee Obama Is A Natural Born Citizen Is Not A Political Question......................................................................................................6 III. A Remedy Still Exists........................................................................................10 Conclusion...............................................................................................................12 Certificate Of Service .............................................................................................14 Certificate Of Font Requirement.............................................................................15

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TABLE OF CITATIONS

Cases

Page

Bush v. Gore, 531 U.S. 98, 112 (2000)............................................................................................6 Fitzgerald v. Green 134 U.S. 377(1890)...................................................................................................9 Gore v. Harris, 773 So. 2d 524 (Fla. 2000).......................................................................................3 Gray v. Bryant 125 So.2d 846 (1960) ............................................................................................12 Mass. v. Rhode Is., 37 U.S. 657, 738 (1838)............................................................................................8 Mcpherson v. Blacker 146 U.S. 1, 35 (1892)................................................................................................8 Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1273 (Fla. 2000)......................................................................................3 Ray v. Blair, 343 U.S. 214 (1952) .................................................................................................9 Robinson v. Bowen, 567 F. Supp. 2d 1144, 1147 (N.D. Cal. 2008)..........................................................7 Shevin v. Stone, 279 So. 2d. 17 (Fla. 1972)...................................................................................5, 19 Texas v. United States, 523 U.S. 296,302, 118 S. Ct. 1257 (1998).............................................................7,8

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United States v. Reese, 92 U.S. 214, 221 (1876)..........................................................................................12

CONSTITUTIONAL PROVISIONS U.S. Constitution, Art. II, s.1, c.4 ...........................................................................11 U.S. Constitution, Amend. 10..................................................................................12 U.S. Constitution, Amend. 12.............................................................................10,11 U.S. Constitution, Amend. 20.................................................................................1,9 U.S. Constitution, Amend. 25..................................................................................11 STATUTES Fl. ss. 102.168...................................................................................................1,2,3,4 3 U.S.C. 5.......................................................................................................4,5, 10 3 U.S.C. 15...........................................................................................................7,9

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INTRODUCTION In their respective reply briefs, Appellees Barack Hussein Obama, Secretary of State Ken Detzner, and the Florida Elections Canvassing Commission continue to deny record facts and black letter law, rules of statutory construction, the U.S. Constitution, the statutes of Florida, and U.S. Supreme Court precedent. In essence they claim that the U.S. Constitution is not Suprema Lex, and that the contrived rules of other men are superior to it, a line of reasoning that threatens the rule of law and the Republic. The Appellees' argument is based on false premises. They argue that Appellant has not stated a proper cause of action, that even if there were a proper cause of action that Appellee Barack Hussein Obama is an eligible natural born citizen, as held by non-binding precedent, and that the question of whether Appellate Obama is eligible for the Office of President of the United States is a political question, best left to the political parties, and already designated to Congress by the operation of the 20th Amendment and the Electoral College subject to 3 U.S.C. 15. All of these false premises of the Appellees' argument have been shown to be without merit.

REPLY ARGUMENT I. Appellant Has Stated A Proper Cause Of Action And Now It Is The Florida Judiciarys Duty To Determine The Eligibility Of Barack Hussein Obama. Appellant Michael C. Voeltz correctly filed his contest of election (2012 CA 03857) pursuant to Fl. ss. 102.168(1)(3)(b) by 10 days after the final certification of the Florida 2012 General Election by the Florida Election Canvassing Commission, which on November 20, 2012 certified that, Barack H. Obama and Joe Biden (Dem) was elected President of the United States. Florida Elections Canvassing Commission (ECC), Final Certification of the Florida 2012 general election for President, Nov. 20, 2012. Appellants contest of the person elected President by the voters of Florida was filed according to the laws of Florida for venue, timing, indispensible parties, and cause of action (Ineligibility of the successful candidate for the nomination or office in dispute. Fl. ss. 102.168(1)(3)(b)). Although defendants claim that Barack Hussein Obama was not elected, and that only his electors were elected, Florida statutes stipulate that the electors shall reflect the popular vote. Appellant is not challenging the eligibility of the electors for Barack Hussein Obama, he is challenging the eligibility of the person elected (any person nominated or elected to office, Fl. ss. 102.168), which is the person that the Florida ECC says was elected in its final certification, dated 2

November 20, 2012. (Votes cast for the actual candidates for President and Vice President shall be counted as votes cast for the presidential electors supporting such candidates. Fl. ss. 103.011). The final certification by the Florida ECC proves that defendants arguments are merely semantics. The Florida Supreme Court has held that the Florida election statutes apply to all elections in the state of Florida (See Gore v. Harris, 773 So. 2d 524 f.11 (Fla. 2000), , see also Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1273 f. 20 (Fla. 2000), The Legislature has not, beyond granting to Floridas voters the right to select presidential electors, indicated in any way that it intended that a different (and unstated) set of election rules should apply to the selection of presidential electors. The Florida Supreme Court has also held that eligibility for office is a judicial determination made upon the presentation of a proper contest of election. Shevin v. Stone, 279 So.2d 17 (Fla.1972). Therefore this court certainly has jurisdiction to determine the eligibility of any person elected to the office of President of the United States in an election held in Florida, if that contest of election based on the proper cause of action, ineligibility of the winning candidate (Fl. ss. 102.168(3)(b)), and that contest is properly made, according to the statutes of Florida, for timing, venue and indispensible parties. Appellant has 3

brought forth a set of facts that could have clearly changed the outcome of the election. Florida statutes demand that [a]ny candidate, qualified elector, or taxpayer presenting such a contest to a circuit judge is entitled to an immediate hearing. (Fl. ss. 102.168(7)) Defendants claim that the appellant must request a hearing, and in doing so are adding words to the statute that are not present. (The complaint shall set forth the grounds on which the contestant intends to establish his or her right to such office or set aside the result of the election on a submitted referendum. Fl. ss. 102.168(3)) Appellants case was dismissed illegally according to Florida law without a hearing. (Fl. ss. 102.168(5), Fl. ss. 102.168(7)). No final determination based on the facts presented by appellant was made by the safe harbor date of December 11, 2012. By its own actions the Florida judiciary has violated the Federal law, 3 U.S.C. 5, and violated Article 2 of the U.S. Constitution, by not adhering to the Congressional mandate that, the state of Florida enforce its laws enacted prior to the election, and make a judicial determination, as to a properly made contest of election brought under those statutes. In so doing the officers of the state of Florida have fraudulently ascertained the electors for Barack Hussein Obama for President of the United States, and have violated the equal protection and due process rights of appellant Michael C. Voeltz, and have failed to provide a Republican form of government. Judge Kevin J.Carroll, in Voeltz v. Obama, No. 2012 CA 03857, apparently 4

thought the movie Miracle on 47th St. was law, and cited it in his opinion that that since the government recognizes Mr. Obama as President then this court will not dispute it, case dismissed. A clear pattern of bias and prejudice toward the political class was displayed, as the Florida judiciary has apparently become the mouthpiece of the political establishment, as noted by Judge Carroll that his friend, Judge Walker, was given a promotion by Barack Hussein Obama, as evidence that the government recognizes Mr. Obama as President. That opinion was issued 9 days after the Federal Law safe harbor provision of 3 U.S.C. 5, and was a clear violation of Article 2, U.S. Constitution. Though the safe harbor provision has passed, by fraudulent operation of the judiciary of Florida, that fact cannot be used as a defense, since it was the actions of the officers of the state of Florida that set up that defense. [T]he right of the plaintiff to sue cannot depend on the defence (sic) which the defendant may choose to set up. His right to sue is anterior to that defence (sic), and must depend on the state of things when the action is brought Osborne v. US Bank of the United States, 22 U.S. 738, 824 (1824). The Florida judiciary is obligated to issue an opinion as to the eligibility of Barack Hussein Obama as President of the United States, since at the time the contest was made there existed a legal cause of action granted by the Florida statutes to do so.

II. The Issue Of Whether Appellee Obama Is A Natural Born Citizen Is Not A Political Question. Defendants claim that Presidential eligibility is a political question, and that the Electoral College and the Joint Session of Congress that meets to count the votes are the Constitutional venue for the determination of that question. However not one word in the Constitution stipulates that Congress makes that determination, and in fact it bars Congress from making the determination of presidential eligibility. Congress is responsible specifically for the qualifications and elections of its own members (U.S. Const., Art. 1, S. 6) but not of the President. See also, but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector. (U.S. Const., Art. 2, S.1, C. 2,). No discretion is described in the Constitution by Congress as to the eligibility of a President elect, only that [t]he President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--the person having the greatest number of votes for President, shall be the President. (U.S. Const., Amendment 12). No member of government is allowed to be an Elector, and electors are specifically not a governmental body. While presidential electors are not officers or agents of the federal government (In re Green, 134 U. S. 377, 379 [(1890)]), they exercise federal functions under, and discharge duties in virtue of authority conferred by, the Constitution of the United States. (Bush v. Gore, 531 U.S. 98, 112 (2000). 6

Because Electors are not members of the government, their choice cannot be a political question and is subject to judicial review. Indeed Federalist 68 informs us that the choice of President should be free of foreign or governmental influence, and that the President is serving at the will of the people themselves, and specifically not government entities. As Alexander Hamilton noted, Another and no less important desideratum was, that the Executive should be independent for his continuance in office on all but the people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. Federalist 68, Alexander Hamilton, March 12, 1788. Appellees' claim that the issue of presidential eligibility is solely decided by the operation of the 20th Amendment, and under the purview of Congress, and by operation of the Electoral College (3 U.S.C. 15)[T]he question of whether a candidate for the office of President of the United States is qualified under Article II, Section 5, of the Constitution is committed under the Constitution to the electors and the legislative branch. Judicial review -- if any -- should occur only after the electoral and congressional processes have run their course. Robinson v. Bowen, 567 F. Supp. 2d 1144, 1147 (N.D. Cal. 2008) (citing Texas v. United States, 523 U.S. 296,302, 118 S. Ct. 1257 (1998)). The recent ruling of Hassan, 7

supra, disagrees with that claim, holding that the FEC could deny funding to an ineligible presidential candidate; see also Cherry v. Stone, 265 So. 2d at 58 (it is up to a court of competent jurisdiction in a lawsuit brought by a proper party to decide if the candidate is qualified.). Bowen cites Texas v. United States, 523 U.S. 296 (1998), which has nothing to do with presidential elections, citizenship, or presidential eligibility. The 20th Amendment only deals with the situation of succession, after a finding if the president elect shall fail to qualify. It does not say when that determination of disqualification is made, or who shall make that decision. Indeed Ray v. Blair, 343 U.S. 214, 223 (1952), holds that the disqualification of a presidential candidate may occur before the Electoral College convenes. The nominees of the party for president and vice-president may have become disqualified. Id. The U.S. Supreme Court, in Mass. v. Rhode Is., 37 U.S. 657, 738 (1838) defined political question thusly: These definitions lead us to the definition of political versus judicial power and questions, the former is that which a sovereign or state exerts by his or its own authority. Id. The 20th Amendment does not expressly or implicitly say that the issue of presidential eligibility is the purview of Congress. As for the Electoral College, it is well held that Presidential Electors are not members of the government. See McPherson v. Blacker, 146 U.S. 1, 35(1892); 8

Fitzgerald v. Green, 134 U.S. 377 (1890); Ray v. Blair, 343 U.S. 214 (1952). It has also been held that Presidential Electors are on the same level as individual electors voting for members of Congress. Fitzgerald v. Green, 134 U.S. 377 (1890). If Presidential Electors are not members of the government then the question of eligibility cannot be a political question, even if that question were explicitly under their purview, which it is not. 3 U.S.C. 15 does not stipulate that any presidential qualifying be done, only that objection be made, and does not stipulate what those objections should be. The usage of shall have failed to qualify is future perfect tense, denoting an action completed (determination of ineligibility) before a definite moment in the future (Joint session of Congress) or an action which will begin before a definite moment in the future, will continue up to that moment and will be going on at that moment. That means that the determination of ineligibility of the President elect is made before the Joint Congress meets to count the votes, presumably by operation of 3 U.S.C. 5, (titled Determination of controversy as to appointment of electors), by the judicial or other functions of election laws set up by the states prior to the election, and is an ongoing controversy at the time the Joint session meets. No Congressional discretion is present in the 20th Amendment unless both the President elect and the Vice President elect shall have failed to qualify, otherwise it has a ministerial duty to appoint the Vice President elect as President 9

if the president elect shall have failed to qualify. No language in the Amendment stipulates that Congress determines eligibility, it does not say if Congress determines that the President elect does not qualify, and the plain language clearly contemplates a situation where the determination is made beforehand by the operation of 3 U.S.C. 5. In fact the Electoral Count Act 1887 (now 3 U.S.C. 5) was specifically enacted in order to keep election controversies out of Congress, and be determined by the states, in their Constitutional plenary operation of Federal elections. The theory of section 2 is that the states are the proper locus of authority to determine elector election controversies and, for that reason, the final determination by a states duly appointed tribunal should bind Congress. Steven Siegel, The Conscientious Congressmans Guide to the Electoral Count Act 1887, 56 Fla. L. Rev. 541, 588 (2004); and Giving state determinations of elector election contests conclusive effect was the key to his hope of disposing of electoral appointment controversies before Congress met, rendering the joint session little more than a formal ceremony. Id. at 589 III. A Remedy Still Exists. Although defendants claim that the window for asking the question of whether Barack Hussein Obama is eligible for the Presidency has passed, the 12th Amendment, as originally constructed, clearly contemplates a situation where a 10

sitting President has a constitutional disability (as in the case of the death or other constitutional disability of the President. U.S. Const., Amendment 12. It does not say President elect, as in Amendment 20, denoting a person elected but not yet sworn in. That part of 12th Amendment is superseded by the 25th Amendment, titled Presidential Vacancy, Disability, and Inability, which describes the removal of the President from office due to inability (mental, physical or constitutional disability). The statutory framework of the 25th Amendment, clearly contemplates a situation where there is an inability of an individual acting as President under this subsection. An individual acting as President certainly contemplates that the sitting President is not a legal entity, as does the 12th Amendment. If found to be ineligible by the Florida judiciary that would conceivably trigger section 3 or 4 of the 25th Amendment, where, in section 3, Barack Hussein Obama steps down, at least until the appeals run their course, or this judicial body (such other body as Congress may by law provide Amendment 25, U.S. Const., S. 4), and the Vice President combine to remove him. Article 2 Section 1 Clause 4, requiring that the President shall be a natural born Citizen, is a self executing Constitutional provision. No statute is necessary to enforce it. If found to be ineligible through a legal cause of action then he must be removed. [I]n the absence of such presumption the legislature would have the power to nullify the will of the people expressed in their constitution, the most 11

sacrosanct of all expressions of the people." Gray v. Bryant, 125 So.2d 846, 851 (Fla. 1960). Since vetting candidates for President of the United States is not one of the express or implied powers of Congress, then it is province of the states or to the people (U.S. Const.,10th Amendment). If the states refuse to vet presidential candidates for eligibility, then that responsibility falls to the citizens of the United States. Within its legitimate sphere, Congress is supreme and beyond the control of the courts; but if it steps outside of its constitutional limitations and attempts that which is beyond its reach, the courts are authorized to, and when called upon in due course of legal proceedings must, annul its encroachments upon the reserved power of the states and the people. United States v. Reese, 92 U.S. 214, 221 (1876). CONCLUSION It is imperative that full discovery be performed, including an examination of Mr. Obamas original birth certificate, and to weigh those findings against the multitude of historical data regarding the meaning of natural born Citizen. If this court finds he is not eligible then he must be removed.

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For the foregoing reasons, the decisions of the trial court subject to this appeal must be reversed and this action remanded to the trial court with instructions to begin discovery. Appellant also respectfully requests oral argument and a reasoned written opinion to issue thereafter as soon as practicable. Dated: December 17, 2013 Respectfully submitted,

/s/ Larry Klayman Larry Klayman, Esq. Florida Bar No. 246220 Klayman Law Firm 2020 Pennsylvania Ave. NW, Suite 800 Washington, DC 20006 Tel: (310) 595-0800 Email: leklayman@gmail.com

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CERTIFICATE OF SERVICE I CERTIFY that a copy of the foregoing Appellant's Reply Brief has been furnished, by email, this 17th day of December, 2013 to the following:

Daniel Nordy Ashley E. Davis Florida Department of State R.A. Gray Building 500 South Bronough Street Tallahassee, FL. 32399 Mark Herron Joseph Brennan Donnelly Robert J. Telfer, III Messer, Caparello & Self, P.A. Post Office Box 15579 Tallahassee, FL. 32317

Stephen F. Rosenthal Podhurst Orseck, P.A. 25 West Flagler Street, Suite 800 Miami, FL. 33130-1720 Richard B. Rosenthal The Law Offices of Richard B. Rosenthal, P.A. 169 East Flagler Street, Suite 1422 Miami, FL. 33131 James A. Peters Office of the Attorney General FL-01, The Capital Tallahassee, FL. 32399-1050

Respectfully submitted,

/s/ Larry Klayman Larry Klayman, Esq. Florida Bar No. 246220 Klayman Law Firm 2020 Pennsylvania Ave. NW, Suite 800 Washington, DC 20006 Tel: (310) 595-0800 Email: leklayman@gmail.com

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CERTIFICATE OF FONT REQUIREMENT I hereby certify that this brief complies with the font requirements (Times New Roman, 14 pt.) of Rule 9.100(1), Florida Rules of Appellate Procedure.

Respectfully submitted,

/s/ Larry Klayman Larry Klayman, Esq. Florida Bar No. 246220 Klayman Law Firm 2020 Pennsylvania Ave. NW, Suite 800 Washington, DC 20006 Tel: (310) 595-0800 Email: leklayman@gmail.com

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