I have written several times about the Obama birth certificate controversy. As my readers no doubt know, I don't place much credence in the charges that it is forged. I believe one or more readers may disagree with me on this, but form what I know of computer images I just don't see the smoking gun many do, and some of the expert evidence (I will not say which) strikes me as a bit tortured, if not entirely suspect. The problem, as I see it, is we are looking at an image produced by an unknown chain of processing step, a chain whose length we don't know, each step of which we do not know. It could be very easy to take a perfectly legitimate scan, and through a sharpening, a color correction, a subsequent reduction of jpeg quality and a resizing to end up with a document as far form the original as Obama's, or even more so. If you add in additional steps, including innocent attempts to make the image "come out better", as most scans are usually not quite optimal, it is quite simple to explain any suspicious elements.

However, that is not my subject here. Whether the claims are legitimate or not, I am a bit disturbed by the recent spate of court cases. No, not in the way I wrote about before, it is not the people bringing the suits which worry me now -- well, Berg still troubles me, as he is a loopy truther -- no, this time I am worried by the rulings that courts are handing down.

Other Townhall readers, at least those who did not opt out of their mailing list, probably got an email about the many challenges launched to force Obama to produce his birth certificate. It was a fund raising letter from a group seeking to challenge Obama's legitimacy, so obviously it was somewhat biased, but still the facts it presented are a bit troubling. As the list is reproduced by World Net Daily, I have no reason to doubt it, and the rulings are disturbing.

Let me just repeat again, I don't personally find the arguments compelling, and I think it is all a lot of fuss over nothing. I am not even troubled unduly by Obama's refusal to provide a birth certificate to everyone who requests one. Think of the trouble it would involve. Anything short of a real, notarized birth certificate sent to each requester personally would not satisfy them, but would only provide new fuel for charges of forgery, as they tried to pick apart whatever photocopy, digital image or other reproduction they received. In the mind of the Obama camp, I am sure they have provided what is needed by posting that image, and I can see why they would not send a notarized certificate to everyone who asks.

But these cases are not being arbitrated and decided on the merits. They are not even being dismissed for lack of substance. Time and again, they are being dismissed for lack of standing. Now in the case of Berg, and several others, I can see that. I know the argument is that every citizen should have the right to bring suit to ensure a presidential candidate is eligible to run, but if you think about that, such wide reaching standing would create total chaos. A few thousand citizens bringing pro se suits could tie up a candidate they opposed in court, preventing him from ever actually campaigning. Just petitioning for continuances could take up more time than the candidate has, not to mention the added expense. It is already almost impossible for a candidate to run without the support of a party or a personal fortune, how much harder would it be when a run for office also entails hundreds of millions in legal expenses?

So, obviously the standing to bring suit to enforce constitutional requirements needs to be more narrow than "citizen" or even "citizen eligible to vote" or "citizen who did vote". Yet, equally clearly, someone must have standing to bring suit to verify the president's eligibility, or else the constitutional requirement is pointless, as a requirement no one can enforce is not a requirement. So, where between "all citizens" and "no one" should the line be drawn?

Most would agree that the secretary of state of a sovereign state participating in the election should probably be seen as having standing. After all, in most states the secretary of state plays some role in verifying election results and certifying the electors. However, in the case of Washington state the courts have ruled that even the secretary of state doe snot have standing. Granted, the circumstances of this case likely make that a dictum and not a binding precedent, as the secretary of state was not filing the suit, a citizen was filing to compel the secretary, but that the court would even issue such a dictum is troubling. Even if ti were not a dictum, it would be binding only on Washington State, but it is still a troubling precedent.

The suit which is truly interesting is the one being brought by the group asking money. Please note, I do not support this group, don't endorse them, and I disagree with their basic argument int heir suit. I am not trying to solicit funds for them, nor ask anyone to provide them support. But their suit  is still interesting for one very specific reason.

 Assuming other states would follow the Washington precedent and deny standing to secretaries of state, then we have to ask "Who does have standing?" Clearly the other branches of the federal government would have trouble asserting standing, as that would runt he risk of disrupting our system of checks and balances, especially if the courts could both bring challenges AND decide their validity. And the executive branch can't have the power, as they serve at the president's pleasure, so they would never be inclined to bring challenges. Which leaves us with very few who could possibly have standing.

We still have the governors and legislatures of various states. Legislatures are unlikely, as being large deliberative bodies, having them bring suit as a whole is rather strongly against the minimalist trend in adjudication that prevailed when the Constitution was written. (Class action was two centuries in their future, you must recall. Crowded courtrooms were considered a bad thing in the 18th century.) The governor is still a possibility, though even there we have some doubts, as usually the control over electors is more the responsibility of the legislature and secretary of state than the governor himself. But I suppose a governor is a possibility.

However, the current suit has hit upon the one remaining alternative, the other group which has a clear stake in a decision, yet is small enough to avoid the threat of endless litigation. And that group is made up of other candidates for the office of president, in the case of the present suit, Alan Keyes. Their argument is as follows:

"The parties in this case have standing to bring this litigation, due to the fact that Dr. Keyes and Dr. Drake, Sr., are candidates on the California ballot for President and Vice President of the United States, and Mr. Robinson is an Elector for the Keyes-Drake ticket, and Vice Chairman of America's Independent Party, of Fenton, Michigan, which nominated Dr. Keyes for President. He is also a Chairman of the American Independent Party (California), which nominated Dr. Keyes and Dr. Drake for President and Vice President, respectively. Based on the foregoing, it is imperative for SOS to be provided proof that Senator Obama is a 'natural born' citizen."

Which is what makes this case interesting.

Now, I do not expect Dr. Keyes to prevail, even if he should be allowed to proceed. What interests me is to see how the courts rule on the question of standing. Because, as I wrote above, the list of those with standing is already rather short. So, should the court deny electors and candidates the right to sue, we are left with a law which seems pretty much unenforceable. And, if that is the case, then there really is no need for anyone to worry about their eligibility to run for president.

If Dr. Keyes is denied standing, then why can't an eighteen year odl run? Or Governor Arnold? Or Governor Granholm? Or convicted felons? How could we prevent them from running? If no one has standing to challenge their right to run, then how could they be kept off the ticket?

It will be interesting to see which way this case goes. At the very least, should the court deny Dr. Keyes standing, I would hope they would clarify exactly who has standing to bring such challenges, so we can understand at last how this constitutional requirement is to be enforced.