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An attorney representing a Florida man in a challenge to the possibility of Barack Obama’s name being on the 2012 presidential election ballot says he is pursuing an appeal of a lower court decision to the Florida First Circuit Court of Appeals.

The announcement comes from attorney Larry Klayman, who represented plaintiff Michael C. Voeltz in the case.

The case has sought to exclude Democratic candidate Obama from the 2012 ballot. Klayman and Voeltz, a Democratic party voter, claim that Obama is not a natural born citizen as required by Article 2, Section 1 of the U.S. Constitution, since he was born a British subject.

The case also cites the evidence produced by Arizona Sheriff Joe Arpaio’s special investigative unit that has asserted that the birth documentation from Hawaii that Obama claimed was “proof positive” of his Hawaiian birth is not real.

Judge Terry Lewis recently said that Obama was “not nominated” for the position since there was no Florida Democratic primary, since he was the only candidate.

But Klayman alleges Florida statutes disagree with that decision.

Florida law allows that when only one candidate is suggested for a primary election ballot, that candidate shall be considered nominated for the office, Klayman said. And state law also allows a voter to challenge any candidate’s eligibility.

Lewis’ order included several specific statements.

He said technically, Obama was not yet nominated and Obama’s birth in the U.S. meets the Constitution’s requirements for being a “natural born citizen.”

But Klayman said judge’s ruling is “intellectually dishonest” and so poorly written it makes an appeal “relatively easy.”

A fund has been set up for donations to cover legal expenses for the case.


Lewis rejected Voeltz’s and attorney Larry Klayman’s arguments on three grounds.

First, the judge insisted, Obama’s candidacy cannot be challenged because he has not been nominated yet.

“The respective major political parties determine their nominee at a national convention [that hasn't occurred yet],” Lewis writes. “Thus, under Florida law, Mr. Obama is not presently the nominee of the Democratic Party for the office.”

Second, the judge insisted, it’s not the Florida secretary of state’s job to determine a presidential candidate’s eligibility.

Quoting Florida law, Lewis writes, “The secretary of state has no affirmative duty, or even authority, ‘to inquire or pass judgment upon the eligibility of a candidate to hold office for the nomination for which he is running.’”

Third, Lewis insisted, Obama should be considered a natural born citizen.

“The United States Supreme Court has concluded that ‘every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States,’” Lewis writes.

“The judge equated being a ‘citizen’ with a ‘natural born citizen’ and cited no authority to conclude the two terms are the same,” Klayman said. “He quotes other state’s cases, where judges reached that conclusion, but that’s not precedent for him. What other courts said in lower cases means nothing to him.”

Klayman also bristled at the judge’s claim that the “burden of proof” fell upon Voeltz to demonstrate Obama’s ineligibility, despite denying Klayman’s team “discovery,” a process that may have allowed subpoena power of Obama’s identifying documents.

“How can you say we have the burden of proof, then not allow discovery?” Klayman asked. “He says we have burden, but doesn’t allow us to meet it. We’re entitled to discovery. That’s a very vulnerable part of this case going forward.”


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