Wiley Drake appealing 'birther' case to state Supreme Court

SACRAMENTO, Calif. (ABP) — An attorney asked the California Supreme
Court Dec. 3 to hear arguments that the state officials should have been
required to verify that Barack Obama was eligible to serve as president
of the United States before putting his name on California's ballot in
the 2008 presidential election.

Wiley Drake

Gary Kreep of the United States Justice Foundation filed an appeal on behalf of clients including a Southern Baptist pastor whose name appeared on the California ballot as a vice-presidential candidate. Wiley Drake, pastor of First Southern Baptist Church in Buena Park, Calif., was running mate to presidential candidate Alan Keyes on the American Independent Party ticket.

California's 3rd District Court of Appeals dismissed Drake's lawsuit questioning the legality of Obama's election Oct. 25, saying it is the role of political parties and Congress — not election officials — to determine the eligibility of a presidential candidate.

In his appeal to the state's high court, however, Kreep argued that the U.S. Constitution lays out eligibility requirements for the president but no federal law deals with who is to make determinations of eligibility. He said California law, on the other hand, requires the secretary of state to list qualifications and requirements and verify candidates for every elected position except the president of the United States.

Kreep said federal law gives Congress authority to determine the eligibility of the Electoral College but not whether the candidate is eligible. He said political parties have an interest in winning elections whether or not their candidate is eligible. Voters cannot properly verify a candidate's eligibility, he added, because they are voting on names supplied on a ballot.

"Since it is clear that none of the entities suggested by the appellate court have the requisite authority to verify the eligibility of a presidential candidate, the only other option would be for the secretary of state to make such a determination," Kreep argued. "However, due to the apparent conflict of duties found in the California Statutes concerning this matter, there remains an unresolved question of law for which appellants respectfully request that the California Supreme Court accept this petition."

The case is one of several filed around the country by individuals — who have come to be known as "birthers" — who harbor doubts about whether Obama meets the constitutional requirement that the president be "a natural born citizen" of the United States.

Obama's White House biography says he was born in Hawaii on Aug. 4, 1961, to a father from Kenya and mother from Kansas. He was raised with help from his grandparents and worked his way through college and law school. He then worked as a community organizer in Chicago before entering public service, first as a state senator and then as a member of the U.S. Senate.

Birthers support a conspiracy theory that Obama was actually born in Kenya and that documents showing otherwise were faked.

In addition to the case in the California court system, Drake is plaintiff in a federal suit asking the 9th U.S. Circuit Court of Appeals to void California's electoral votes for Obama on grounds that he did not meet all the constitutional requirements for eligibility for the office of the president.

Drake is well known in his community for his work with the homeless and in the Southern Baptist Convention for making motions at annual meetings including the Disney boycott during the 1990s. Southern Baptists honored him by electing him second vice president of the convention in 2006.

In 2007 the IRS investigated Drake for using church letterhead to endorse Mike Huckabee as president as a possible violation of rules that prevent tax-exempt charities from supporting political candidates.

SBC leaders distanced themselves from the former convention officer after he said in 2009 he was praying for President Obama to die. Drake later said he was lifting his call for "imprecatory prayer" and that he wanted instead to see Obama live long enough to stand trial for treason.

Most recently Drake was in the news for speaking out in opposition to building a proposed mosque on the outskirts of Temecula, Calif. During a planning commission meeting that lasted more than five hours, according to the Press-Enterprise in Riverside, Calif., Drake said the Sept. 11, 2001, terrorist attacks stemmed from the activity of mosques.

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Bob Allen is senior writer for Associated Baptist Press.

Previous ABP stories:

California appeals court strikes down Wiley Drake's 'birther' case (10/27/2010)

Drake's lawyer claims legal precedent for courts to remove a head of state (2/3/2010)

Judge delays ruling on dismissal of Wiley Drake's 'birther' case (10/6/2009)

Judge sets court date in 'birther' case filed by Wiley Drake (9/10/2009)

Wiley Drake wins round in legal battle challenging Obama's presidency (7/14/2009)

Related ABP stories:

Wiley Drake lifts call for 'imprecatory prayer' against President Obama (11/20/2009)

SBC spokesman disavows statements by former second VP (6/5/2009)

Drake, former SBC officer, says he's praying for Obama to die (6/3/2009)