PER CURIAM.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P.

STUART, MURDOCK, SHAW, MAIN, and WISE, JJ., concur.

BOLIN and BRYAN, JJ., concur specially.

MOORE, C.J., and PARKER, J., dissent.

BOLIN, Justice (concurring specially).

I concur with this Court's no-opinion affirmance of this case. However, I write specially because I respectfully disagree with Chief Justice Moore's dissent to the extent that it concludes that the Secretary of State presently has an affirmative duty to investigate the qualifications of a candidate for President of the United States of America before printing that candidate's name on the general-election ballot in this State. I fully agree with the desired result; however, I do not agree that Alabama presently has a defined means to obtain it.2

Initially, Chief Justice Moore addresses certain threshold issues, including the timeliness of the plaintiffs' challenge to presidential-ballot access for the general election in 2012. Here, the Secretary of State asserted the affirmative defense of laches, arguing that the plaintiffs had impermissibly delayed in asserting their challenge to President Obama's ballot access. See Rule 8, Ala. R. Civ. P. "`"To establish the application of the doctrine of laches, [a defendant] ha[s] to show that [the plaintiff] delayed in asserting his right or claim, that his delay was inexcusable, and that his delay caused the [defendant] undue prejudice."'" Ex parte Lightwave Techs., L.L.C., 971 So.2d 712, 720 (Ala.2007) (quoting Ex parte Grubbs, 542 So.2d 927, 929 (Ala.1989)).

Chief Justice Moore concludes in his special writing that the plaintiffs' challenge, brought 5 weeks after Barack Obama was selected as the Democratic Party nominee for President of the United States and only 26 days before the general election, did not constitute "inexcusable delay." As to the merits of this proceeding, I cannot agree that there was not inexcusable delay and undue prejudice amounting to laches. "`Objections relating to nominations must be timely made. It is too late to make them after the nominee's name has been placed on the ballot and he has been elected to office....'" State ex rel. Norrell v. Key, 276 Ala. 524, 525-26, 165 So.2d 76, 77 (1964) (quoting 29 C.J.S. Elections § 141 (emphasis added)). The evidence suggests that the Secretary of State had expressed to the plaintiffs and their representatives well prior to the primary and as early as February 2, 2012, that she3 had no duty to investigate the eligibility qualifications of a presidential candidate. Barack Obama was nominated as his party's presidential candidate at the Democratic National Convention on September 5, 2012. For this election, ballots were required to be printed and delivered to the absentee-election manager of each county by at least September 27, 2012. See § 17-11-12, Ala.Code 1975. The plaintiffs did not file their petition challenging Barack Obama's ballot access until October 11, 2012, approximately eight months after being apprised of the Secretary of State's position that she had no affirmative duty to investigate and two weeks after the ballots were to be printed and delivered to the various counties. The failure by the plaintiffs to at least file their petition challenging ballot access during the intervening time between Barack Obama's nomination as his party's presidential candidate and the time in which the ballots were due to be printed and delivered to the various counties constitutes, I believe, "inexcusable delay" on the part of the plaintiffs. The prejudice that would have ensued from such a late challenge, if successful, would have been twofold: first, assuming it could have been accomplished from a practical standpoint, the reprinting and distribution of general-election ballots would have come, at that late date, at great financial cost to the State; and second, and just as important, the reprinted ballots would differ from absentee ballots already sent to the members of our military and other citizens overseas. This would not be a proper way to conduct such an important election.

Moving beyond the merits of the matter before us, and with due regard to the vital importance to the citizenry of the State of Alabama that the names of only properly qualified candidates appear on a presidential-election ballot for election to the highest office in our country, I write specially to note the absence of a statutory framework that imposes an affirmative duty upon the Secretary of State to investigate claims such as the one asserted here, as well as a procedure to adjudicate those claims. The right of a lawful and proper potential candidate for President to have ballot access must be tempered and balanced against a clear process for removal of an unqualified candidate. Nothing in this process should be left to guesswork, or, with all proper respect, to unwritten policies of the Secretary of State, and certainly not without a disqualified candidate having a clear avenue for judicial review consistent with the time constraints involved and due-process considerations.

As noted above, Chief Justice Moore concludes in his special writing that the Secretary of State has an affirmative duty to investigate the qualifications of a candidate for President of the United States of America before printing that candidate's name on the general-election ballot in this State. Although logically the Secretary of State, being the chief elections official of the state, should be vested with such a duty, under our present constitutional and statutory framework addressing elections, including presidential elections, not only is that not the case, but the Secretary of State would be bereft of written authority for such an action and ill equipped from a practical standpoint to carry out such an important duty.

The Office of Secretary of State is a constitutional office whose general duties are prescribed in Ala. Const.1901, Art. I, § 134, as follows:

The general duties and scope of the Secretary of State's office are codified in § 36-14-1 et seq., Ala.Code 1975. Section 17-1-3, Ala.Code 1975, provides that the Secretary of State is the chief elections official in the State and, as such, shall provide uniform "guidance" for election activities. It is, however, a nonjudicial office without subpoena power or investigative authority or the personnel necessary to undertake a duty to investigate a nonresident candidate's qualifications, even if such a duty could properly be implied.

Section 17-9-3, Ala.Code 1975, provides:

"The provisions of Section 17-9-3 ... shall apply to presidential preference primaries held under the provisions of this article unless clearly inconsistent herewith or inappropriate for the conduct of a presidential preference primary." § 17-13-101, Ala. Code 1975. Section 17-14-31(a), Ala.Code 1975, provides:

These sections, when read together, require only that the Secretary of State certify and include on the general-election ballot those presidential candidates who have been nominated by their respective parties following that party's national convention and who are otherwise qualified to hold the office of President. However, nothing in the express wording of these statutory provisions imposes upon the Secretary of State the duty to affirmatively investigate the qualifications of a presidential candidate. Consistent with this conclusion is Op. Att'y Gen. No. 1998-00200 (August 12, 1998), which states:

(Emphasis added.)

Rather, the Secretary of State contends that the task of ensuring a candidate's qualifications is left to the leadership of that candidate's respective political party, a less than ideal procedure for all challengers because of its partisan nature. See generally Knight v. Gray, 420 So.2d 247 (Ala.1982) (holding that the Democratic Party had the authority to hear pre-primary challenges to the political or legal qualifications of its candidates).

Courts in other states have tended to agree that the investigation of eligibility requirements of a particular candidate is best left to the candidate's political party. In Keyes v. Bowen, 189 Cal.App.4th 647, 117 Cal.Rptr.3d 207 (2010), the plaintiffs brought an action against California's Secretary of State and others, alleging that there was reasonable doubt that President Obama was a natural-born citizen, as is required to become President of the United States (U.S. Const., Art. II, § 1) and that the Secretary of State had a ministerial duty to verify that President Obama met the constitutional qualifications for office before certifying him for inclusion on the ballot. The trial court entered a judgment against the plaintiffs, concluding that the Secretary of State was required to see that state election laws were enforced, but that the plaintiffs had failed to identify a state election law imposing a duty upon the Secretary of State to demand documentary proof of birthplace from presidential candidates. Id. The plaintiffs appealed.

Like Alabama's Secretary of State, the California Secretary of State is the chief elections official of that state and is charged with ensuring "`that elections are efficiently conducted and that state election laws are enforced.'" 189 Cal.App.4th at 658, 117 Cal.Rptr.3d at 214 (quoting California Gov't Code, § 12172.5). Also similar to § 17-14-31(a) is California Election Code § 6901, which governs general elections and states:

189 Cal.App.4th at 659, 117 Cal.Rptr.3d at 214 (emphasis omitted). In concluding that the California statutes did not impose a duty on the Secretary of State to determine whether a presidential candidate meets the eligibility criteria of the United States Constitution, the appellate court stated:

Keyes, 189 Cal.App.4th at 660, 117 Cal. Rptr.3d at 215-16.

Chief Justice Moore would impose upon the Secretary of State a duty to investigate the qualifications of all presidential candidates. However, Chief Justice Moore has failed to demonstrate how the Secretary of State, a nonjudicial officer with no subpoena power or investigative authority, could carry out this duty in those cases where an actual dispute arises regarding a candidate's qualifications, or, as in this case, could demand delivery to her of a certified copy of a candidate's birth certificate from the official-records depository in another state in which the birth certificate is kept. Chief Justice Moore has cited cases in which federal district courts have upheld decisions of state officials, including secretaries of state, who had refused to qualify proposed candidates who were less than 35 years old. See Socialist Workers Party of Illinois v. Ogilvie, 357 F.Supp. 109 (N.D.Ill.1972), and Peace & Freedom Party v. Bowen, 912 F.Supp.2d 905 (E.D.Cal. 2012). However, in each of those cases there was no real dispute as to the candidates' qualifications, because both candidates conceded they did not satisfy the age requirement of Art. II, § 1, U.S. Const. Therefore, there was no need for the secretary of state to affirmatively investigate the matter of the candidates' qualifications.

The plaintiffs in this case did not necessarily challenge whether President Obama met the "natural-born citizen" requirement of Art. II, § 1, cl. 4 of the United States Constitution. Rather, the plaintiffs sought a writ of mandamus ordering the Secretary of State to authenticate the eligibility of each presidential candidate by requiring the candidates to produce a certified copy of his birth certificate. Although this requested relief, as stated above but worthy of repetition, may be highly desirable, I conclude that the Secretary of State had neither the duty nor the authority to compel a presidential candidate to produce a certified copy of a birth certificate or independently to obtain by other lawful means such a certified copy; therefore, the question remains as to what recourse a party with standing has to challenge the qualifications of a presidential candidate.

As a former probate judge4 in this State, I am well aware of the void created in Alabama election law by the fact that the office of Secretary of State is without authorization, and concomitantly without the tools and enforcement power necessary thereto, to undertake the necessary and desirable burden of affirmatively investigating a presidential candidate's qualifications. The citizens of the State of Alabama are always entitled to have the names of only qualified candidates appear on their election ballot, most particularly when voting for the President of the United States. Looking forward, I would respectfully call upon the legislature to provide legislation that imposes this duty upon the Secretary of State and to give that office the authority and tools necessary to compel the compliance by a candidate, and that candidate's party, upon penalty of disqualification. The office of President is the only elective office that does not require a state residency to be a candidate, which makes the authority to obtain foreign records or documents a vital investigative tool. Under our current structure, however, the burden of investigating a presidential candidate's qualifications is best left — unfortunately or not — to that candidate's particular party, which as aptly stated in Keyes, supra, is "presumed" to conduct a thorough investigation of the candidate's qualifications or risk a challenge to that candidate's candidacy in Congress, the appropriate forum for a post-election challenge to a President's qualifications. See 3 U.S.C. § 15. However, it should not be necessary to rely on a post-election Congressional remedy if it can be proven before the election that the candidate is not qualified. The Secretary of State should have the written mandate to determine requisite qualifications, and a disqualified candidate should have a defined path of expedited judicial review.

Adding further to the need for a state statutory means of determining the qualifications of presidential candidates is the lack of a pre-election remedy in the federal courts resulting from the potential of the political-question doctrine to divest a federal court of jurisdiction to hear a challenge to a presidential candidate's qualifications and the difficulty a party seeking to challenge a presidential candidate's qualifications in federal court would have in establishing standing under Article III of the United States Constitution. The Court in Keyes, supra, explained:

Keyes, 189 Cal.App.4th at 661, 117 Cal. Rptr.3d at 216. Thus, I do agree with Chief Justice Moore that the political-question doctrine would likely divest a federal court of jurisdiction to hear a challenge to a presidential candidate's qualifications. It is also very unlikely that a party seeking to challenge a presidential candidate's qualifications in federal court would be able to establish standing under Article III. See Daniel P. Tokaji, Commentary, The Justiciability of Eligibility: May Courts Decide Who Can Be President?, 107 Mich. L.Rev. First Impressions 31 (2008), and the cases cited therein.

As called for above, the only real alternative to a judicial challenge to the eligibility, or the disqualification, of a presidential candidate in federal court is a pre-election challenge to the candidate's qualifications or disqualification brought in state court pursuant to state laws. Professor Tokaji has explained:

107 Mich. L.Rev. First Impressions at 37-38 (some emphasis added).

Even though I submit that a statutory procedure for addressing pre-election presidential-candidate-qualification resolution, while also imposing an affirmative duty upon the Secretary of State to investigate and pursue the necessary review, is the best vehicle to accomplish the desired result, an action brought in state court challenging a presidential candidate's qualifications is not without potential problems. In that regard, Professor Tokaji has further noted:

107 Mich. L.Rev. First Impressions at 38-39.

The courts of this State are without jurisdiction to hear a post-election challenge to a presidential election. See § 17-16-44, Ala.Code 1975. Alabama law currently provides no express means by which a party with standing may make, outside political-party machinery, a pre-election challenge to a presidential candidate's qualifications. The problem is further exacerbated by the compressed time period between a presidential nomination by a national-party-nominating convention and the date ballot preparation must be finished and absentee ballots delivered to counties in Alabama. As Professor Tokaji stated, a pre-election challenge to a presidential candidate's qualifications in state court pursuant to state election laws may be the best, or perhaps the only, relief available to an aggrieved party with standing. I agree, and, accordingly, I would respectfully invite the Alabama Legislature to enact a statutory process that defines a pre-election course of conduct, consistent with due process for the candidate, that vests an investigative duty upon the Secretary of State, while providing rights and remedies available to a party with standing who seeks to challenge the qualifications of a candidate for the office of President of the United States of America.

BRYAN, Justice (concurring specially).

I concur with this Court's no-opinion affirmance of the circuit court's judgment dismissing the plaintiffs' complaint.

I write specially to note that I understand the plaintiffs' desire to ensure that only the names of qualified presidential candidates are placed on this State's general-election ballot. However, I agree with Justice Bolin's special writing insofar as he concludes that no "statutory framework" presently exists in this State that imposes an affirmative duty on the Secretary of State to investigate the qualifications of a candidate for President of the United States of America before printing that candidate's name on the general-election ballot in this State. Furthermore, I agree with Justice Bolin that no statutory procedure presently exists that permits Alabama courts to entertain a pre-election challenge to the qualifications of a presidential candidate appearing on a general-election ballot in this State. Because no law currently exists that could afford the plaintiffs the relief they sought below and because the creation of such law is strictly within the purview of the legislature, I concur to affirm the circuit court's judgment.

MOORE, Chief Justice (dissenting).

For the reasons stated below I dissent from this Court's decision to affirm without opinion the judgment of the Montgomery Circuit Court granting the motion of the Secretary of State to dismiss this action.

Hugh McInnish and Virgil H. Goode, Jr. (hereinafter "the plaintiffs"), appeal from an order of the Montgomery Circuit Court dismissing their complaint against the Alabama Secretary of State. The complaint alleged that the Secretary of State failed to perform a constitutional duty to verify the eligibility of all presidential candidates appearing on the ballot in the 2012 general election. McInnish is a citizen of Alabama, a qualified elector, and a member of the Alabama Republican Executive Committee. Goode qualified as an independent candidate for President of the United States in the 2012 Alabama general election. Jim Bennett is currently the Alabama Secretary of State.5

I. Facts and Procedural History

On October 11, 2012, the plaintiffs filed a verified complaint in the Montgomery Circuit Court seeking a writ of mandamus ordering the Alabama Secretary of State to verify the eligibility of candidates for the office of President of the United States before placing their names on the 2012 general-election ballot.6 The plaintiffs specifically petitioned the circuit court to order the Secretary of State to demand as a precondition to placing the names of presidential candidates on the ballot that "a certified copy of their bona fide birth certificate be delivered to her direct from the government official who is in charge of the records depository in which it is stored." The plaintiffs also sought injunctive relief to prevent the placing of the names of candidates for President on the ballot "until their eligibility has been conclusively determined." Finally, the plaintiffs requested the circuit court to remove from the ballot the names of candidates whose eligibility could not be verified. The plaintiffs attached three affidavits, two articles, and a copy of an e-mail to their complaint.

On October 15, 2012, three weeks before the November 6 general election, the plaintiffs moved for a summary judgment, arguing that the Secretary of State had a duty to enforce the natural-born-citizen requirement of the United States Constitution in determining whether candidates for President of the United States were eligible for placement on the 2012 Alabama general-election ballot. See U.S. Const. Art. II, § 1, cl. 4 ("No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President... .").7 Although the plaintiffs attached no affidavits or other supporting evidentiary material to their motion for a summary judgment, the motion did cite to the verified complaint, which states:

(Emphasis added.)8

On October 18, 2012, the Secretary of State answered the motion for a summary judgment and simultaneously moved to dismiss the case, arguing that the duty to investigate the qualifications of presidential candidates lies with Congress and not the office of the Secretary of State. She also argued that the plaintiffs had failed to join necessary parties, namely the presidential candidates and their electors, and that the complaint and motion were untimely because many ballots had already been printed and absentee voting had begun. On October 24, 2012, the plaintiffs filed an opposition to the motion to dismiss, reiterating their request that the circuit court "order the Secretary of State to verify the eligibility of all presidential candidates for the 2012 Alabama General Election Ballot."

In the remaining two weeks before the general election, the circuit court did not rule on the pending motions. On November 10, 2012, four days after the election, the plaintiffs filed a document entitled "Praecipe,"9 noting that President Obama had been reelected and asking that the pending motions be decided "well before the Alabama electors vote on December 17, 2012." On November 20, 2012, the Secretary of State filed a "renewed" motion to dismiss, arguing that the occurrence of the election rendered the case moot and that under Alabama law the circuit court lacked subject-matter jurisdiction over a challenge to a presidential election. The plaintiffs opposed the motion, arguing the "capable of repetition, yet evading review" exception to mootness. Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911). The plaintiffs also requested that the circuit court order the Secretary of State to decertify the Alabama votes for any 2012 presidential candidate who did not provide an authenticated birth certificate. On December 6, 2012, the circuit court heard argument on the pending motions. The same day the court issued a "Final Order," which stated in its entirety: "This cause having come before the Court on Defendant's Motion To Dismiss, the same having been considered, it is hereby ORDERED, ADJUDGED AND DECREED said Motion is GRANTED."

The plaintiffs timely filed a notice of appeal to this Court on January 17, 2013.

II. Standard of Review

Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985). "[I]f under a provable set of facts, upon any cognizable theory of law, a complaint states a claim upon which relief could be granted, the complaint should not be dismissed." Id.

In this case, the plaintiffs seek a writ of mandamus as well as other relief.

Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995).

III. Analysis

At the outset I note that the plaintiffs did not ask the circuit court to determine whether Barack Obama or any other presidential candidate on the 2012 ballot met the "natural-born-citizen" requirement of Art. II, § 1, cl. 4, of the United States Constitution. Instead, the plaintiffs petitioned the circuit court to issue a writ of mandamus ordering the Alabama Secretary of State to authenticate the eligibility of each candidate for President by requiring delivery to her of a certified copy of each candidate's birth certificate from "the records depository in which it is stored." The plaintiffs also requested injunctive relief preventing the placement of the name of any presidential candidate on the general-election ballot until such evidence of eligibility had been supplied and the removal from the ballot of the names of presidential candidates "whose eligibility cannot be verified." In a post-election brief to the circuit court, the plaintiffs also requested that the circuit court order the Secretary of State to decertify the votes of any candidate who did not provide an authenticated birth certificate.

A. Threshold Issues

I first address four preliminary issues before turning to the merits of this case: subject-matter jurisdiction, standing, timeliness, and mootness.

1. Subject-Matter Jurisdiction

"[The circuit court] shall have authority to issue such writs as may be necessary or appropriate to effectuate its powers....." Art. VI, § 142(b), Ala. Const.1901. See also § 6-6-640, Ala.Code 1975 ("All applications for mandamus ... shall be commenced by a petition, verified by affidavit...."). This Court has jurisdiction to hear appeals from the circuit courts concerning extraordinary writ. Art. VI, § 140(b), Ala. Const.1901. See Rice v. Chapman, 51 So.3d 281 (Ala.2010) (hearing an appeal from a denial by the Montgomery Circuit Court of a petition for a writ of mandamus that sought an order directing the Secretary of State to exclude a candidate from the primary-election ballot); Alabama Republican Party v. McGinley, 893 So.2d 337 (Ala.2004) (reversing the issuance of a writ of mandamus by the Montgomery Circuit Court that ordered the Republican Party to place a candidate on the primary ballot and ordered the Secretary of State to certify the votes cast for that candidate).

2. Standing

Goode, as the Constitution Party candidate for President on the 2012 Alabama general-election ballot, had standing to challenge the presence on the ballot of other candidates for the same office. See Hollander v. McCain, 566 F.Supp.2d 63, 68 (D.N.H.2008) (noting that a candidate "has standing to challenge the inclusion of an allegedly ineligible rival on the ballot, on the theory that doing so hurts the candidate's ... own chances of prevailing in the election"); Drake v. Obama, 664 F.3d 774, 782-83 (9th Cir.2011) (recognizing the doctrine of "competitive standing" as a basis for challenging the eligibility of a ballot rival). The plaintiffs filed their complaint before the date of the 2012 general election. "[J]urisdiction of the Court depends upon the state of things at the time of the action brought, and that after vesting, it cannot be ousted by subsequent events." Mullan v. Torrance, 22 U.S. (9 Wheat.) 537, 539, 6 L.Ed. 154 (1824). By contrast, the United States Court of Appeals for the Ninth Circuit denied competitive standing to candidates who did not file their complaint until after President Barack Obama was sworn in to office. Drake, 664 F.3d at 784 (holding that, once President Obama was sworn in, "[p]laintiffs' competitive interest in running against a qualified candidate had lapsed").

Therefore, Goode, a presidential candidate on the 2012 general-election ballot who filed his complaint before the election, has standing to pursue this case. Because Goode has standing and his coplaintiff, McInnish, alleges the same claims as Goode, I need not address whether McInnish also has standing. See Watt v. Energy Action Educ. Found., 454 U.S. 151, 160, 102 S.Ct. 205, 70 L.Ed.2d 309 (1981) ("Because we find [one plaintiff] has standing, we do not consider the standing of the other plaintiffs."); Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264 & n. 9, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (noting that "[b]ecause of the presence of [one] plaintiff [who has demonstrated standing], we need not consider whether the other individual and corporate plaintiffs have standing to maintain the suit"); Buckley v. Valeo, 424 U.S. 1, 12, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (holding that case was justiciable when at "least some of the appellants have a sufficient `personal stake'" in its adjudication).

3. Timeliness

"`Objections relating to nominations must be timely made. It is too late to make them after the nominee's name has been placed on the ballot and he has been elected to office....'" State ex rel. Norrell v. Key, 276 Ala. 524, 525-26, 165 So.2d 76, 77 (1964) (quoting 29 C.J.S. Elections § 141). The plaintiffs filed their complaint on October 11, 2012, 26 days before the November 6 general election. The Republican and Democratic Party candidates for President were nominated at their national conventions on August 29, 2012, and September 5, 2012, respectively. Allowing time for the parties to certify their candidates and electors to the Secretary of State pursuant to § 17-14-31, Ala.Code 1975, the plaintiffs filed suit approximately one month after the candidates were known.

Laches, an affirmative defense, Rule 8(c), Ala. R. Civ. P., which the Secretary of State raised in her pre-answer motion to dismiss, "`is inexcusable delay in asserting a right ... causing prejudice to an adverse party....'" Dunn v. Ponceler, 235 Ala. 269, 276, 178 So. 40, 45 (1937) (quoting 21 Corpus Juris, pp. 210-11). In his dissent in Roper v. Rhodes, 988 So.2d 471, 485 (2008), Justice Murdock noted that the challenge to ballot certification at issue in that case was brought over two months after the candidate's nomination and only six days before the general election: "This delay, coupled with the apparent prejudice to the parties and to the orderly conduct of the general election itself that would result if the primary election were to be undone at such a late date, compels a ruling ... on the ground of laches." Other courts have rejected ballot-eligibility challenges on timeliness grounds. See, e.g., Fulani v. Hogsett, 917 F.2d 1028 (7th Cir.1990) (denying relief on laches ground when plaintiff filed complaint three weeks before November general election but irregularity had occurred in early August); Liddy v. Lamone, 398 Md. 233, 919 A.2d 1276 (2007) (denying on laches ground eligibility challenge brought 18 days before general election when candidate had been certified for the ballot over 4 months before the general election).

In the cases cited above decided on the doctrine of laches, the ballot-access challenge had been brought 2 to 4 months after certification of the nomination and from 6 to 21 days before the election. In this case, the plaintiffs brought their challenge only 5 weeks after selection of the presidential nominees and 26 days before the election. Because of the brevity of the two-month interval between the national-convention nominations and the November general election, plaintiffs' filing of their action midway through that period did not constitute "inexcusable delay."

4. Mootness

The Secretary of State argues that the holding of the election renders this case moot. The plaintiffs argue an exception to mootness — that the certification of ineligible candidates is a matter "capable of repetition, yet evading review." They have preserved this argument, presenting it both in their opposition to the Secretary of State's renewed motion to dismiss10 and also during the hearing before the circuit court on December 6, 2012.11 In their appellate brief they ask this Court not only to reverse the judgment of the circuit court on the issue of requiring birth certificates from the presidential candidates whose names appeared on the 2012 general-election ballot, but also to direct the circuit court to order that the Secretary of State "do the same for all candidates in future presidential elections."

In a case similar to this one, the United States Court of Appeals for the Third Circuit held that the shortness of the election cycle qualifies presidential-candidate-eligibility challenges for the "capable of repetition, yet evading review" exception to mootness. The Third Circuit Court of Appeals reasoned:

Berg v. Obama, 586 F.3d 234, 239 n. 5 (3d Cir.2009). This Court has ruled similarly. See Allen v. Bennett, 823 So.2d 679, 682 (Ala.2001) ("[B]ecause the outcome of this case could impact future elections, we hold that the interpretation of [the constitutional provision at issue in] this case — and hence this appeal — is not moot.");12 Griggs v. Bennett, 710 So.2d 411, 412 n. 4 (Ala.1998) (same).

The United States Supreme Court, rejecting a mootness challenge to a ballot-access law affecting presidential electors, has stated:

Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969). See Rice v. Sinkfield, 732 So.2d 993, 994 n. 1 (Ala. 1998) (citing Ogilvie as authority for the "capable of repetition, yet evading review" exception to mootness). See also Morse v. Republican Party of Virginia, 517 U.S. 186, 235 n. 48, 116 S.Ct. 1186, 134 L.Ed.2d 347 (1996) ("Like other cases challenging electoral practices, therefore, this controversy is not moot because it is `capable of repetition, yet evading review.'"); Swanson v. Worley, 490 F.3d 894, 903 n. 10 (11th Cir.2007) ("Although the 2002 election cycle has passed, it is well settled that ballot access challenges fall under the `capable of repetition, yet evading review' exception to the mootness doctrine.").13

Ordinarily the "capable of repetition, yet evading review" exception to mootness requires the satisfaction of two conditions: "`[T]he challenged action was in its duration too short to be fully litigated prior to its cessation or expiration; and there was a reasonable expectation that the same complaining party would be subjected to the same action again.'" Albert P. Brewer Dev. Ctr. v. Brown, 782 So.2d 770, 772 n. 1 (Ala.2000) (quoting Charles Alan Wright, Law of Federal Courts § 12 (5th ed.1994)). In this case, as in most election cases, the first prong is easily satisfied. The two-month period between the national-presidential-nominating conventions and the subsequent general election is too short to fully litigate the Secretary of State's duty to investigate presidential candidates under the qualifications clause. This Court has stated:

McCoo v. State, 921 So.2d 450, 458 (Ala. 2005). See also Lawrence v. Blackwell, 430 F.3d 368, 371 (6th Cir.2005) ("Challenges to election laws are one of the quintessential categories of cases which usually fit this prong because litigation has only a few months before the remedy sought is rendered impossible by the occurrence of the relevant election."); Van Bergen v. State of Minnesota, 59 F.3d 1541, 1547 (8th Cir.1995) ("Elections, including the preelection campaign period, are almost invariably of too short a duration in which to complete litigation and, of course, recur at regular intervals.").

In the context of election cases, the second-prong requirement that "the same complaining party would be subjected to the same action again" is relaxed. The case is customarily not moot if the challenged action could affect any candidate in the future, not just the one presently before the court.

Storer v. Brown, 415 U.S. 724, 737 n. 8, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974) (emphasis added). Similarly, the United States Supreme Court, without inquiring as to future plans of the respondents to run for office, held that a challenge to ballot-access requirements was not rendered moot by the occurrence of the election. Mandel v. Bradley, 432 U.S. 173, 175 n. 1, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977). See also Anderson v. Celebrezze, 460 U.S. 780, 784 n. 3, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) (same); Brown v. Chote, 411 U.S. 452, 457 n. 4, 93 S.Ct. 1732, 36 L.Ed.2d 420 (1973) (same); North Carolina Right to Life Comm. Fund v. Leake, 524 F.3d 427, 435 (4th Cir.2008). ("[W]e reject, as other circuits have, the argument that an ex-candidate's claims may be `capable of repetition, yet evading review' only if the ex-candidate specifically alleges an intent to run again in a future election.").

United States Supreme Court Justice Antonin Scalia summarized this jurisprudence in a case in which he disagreed with the majority's finding that the issue was not moot. Some of the Supreme Court's election-law decisions, he stated,

Honig v. Doe, 484 U.S. 305, 335-36, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (Scalia, J., dissenting).

In Moore v. Ogilvie, 394 U.S. at 816, 89 S.Ct. 1493 (quoted above), the Supreme Court rejected a mootness challenge to an election case because "candidates for statewide offices" not before the Court might encounter the same ballot obstacle in the future. Similarly, this Court, relying on Ogilvie, has stated:

State ex rel. Kernells v. Ezell, 291 Ala. 440, 444, 282 So.2d 266, 270 (1973) (emphasis added).14

Under both federal and state precedent, the plaintiffs' claim that the Secretary of State has a legal duty under the natural-born-citizen clause of the United States Constitution to verify the eligibility of candidates for the office of President of the United States before placing their names on the general-election ballot has not been mooted by the occurrence of the 2012 election. I now turn to the merits.

B. State-Law Issues

Before addressing the duty of the Secretary of State under the presidential-qualifications clause, I first identify the extent to which state law obligates her to determine whether presidential candidates are legally qualified for placement on the general-election ballot. I then examine the extent to which Alabama law provides state courts with jurisdiction to hear challenges to candidate qualifications.

1. Duty of the Secretary of State to Investigate the Eligibility of Presidential Candidates

Alabama law mandates that the Secretary of State certify presidential candidates for inclusion on the ballot in two circumstances: (1) nomination by a national convention or (2) nomination by a petition signed by 5,000 qualified voters.

§ 17-14-31(a), Ala.Code 1975 (emphasis added). This statute by itself does not require the Secretary of State to question the eligibility of candidates who fulfill either method of qualifying for certification.

However, § 17-9-3(a), Ala.Code 1975, which also provides for placing candidates on the general-election ballot, contains a proviso that such candidates be "otherwise qualified for the office they seek." This statute in isolation applies only to candidates for state office. See § 17-9-3(a)(1)(3).15 Another statute, however, extends the reach of § 17-9-3 to presidential primaries. Section 17-13-101, Ala.Code 1975, states: "The provisions of Section 17-9-3 ... shall apply to presidential preference primaries ... unless clearly inconsistent herewith or inappropriate for the conduct of a presidential preference primary." Thus, § 17-13-101 renders § 17-9-3, including its "otherwise qualified" language, applicable to presidential-preference primaries. Accordingly, candidates who qualify for placement on the ballot in a presidential-preference primary, see § 17-13-302, Ala.Code 1975, are "entitled to have their names printed on the appropriate ballot for the general election, provided they are otherwise qualified for the office they seek." § 17-9-3(a).

To qualify for placement on the general-election ballot as a candidate for President after participating in the presidential-preference primary, a candidate must be nominated by the national convention of his or her party. See § 17-14-31, Ala.Code 1975. Thus, by the combined effect of §§ 17-9-3(a) and 17-13-101, the "otherwise qualified" proviso of § 17-9-3(a) applies to presidential nominees who have appeared on the ballot in the presidential-preference primary. Under Alabama law, therefore, the Secretary of State, as the chief elections official, has a legal duty to determine that presidential-convention nominees who have run in the presidential primary are duly "qualified for the office they seek" before placing their names on the general-election ballot.

2. Jurisdiction of Alabama Courts over Plaintiffs' Request for Relief

"The circuit court shall exercise general jurisdiction in all cases except as may otherwise be provided by law." Art. VI, § 142(b), Ala. Const.1901. One such exception is found in § 17-16-44, Ala.Code 1975: "No jurisdiction exists in or shall be exercised by any judge or court to entertain any proceeding for ascertaining the legality, conduct, or results of any election, except so far as authority to do so shall be specially and specifically enumerated and set down by statute...." (Emphasis added.) This statute appears in Chapter 16, Article 3, of the Election Code. Chapter 16 is entitled "Post Election Procedures." Article 3 is entitled "Election Contests." Its location in the Code indicates that the jurisdictional restrictions of § 17-16-44 apply only in post-election contests.

Section 17-16-44 refers to "any proceeding for ascertaining the legality, conduct, or results of any election." Certainly the "results" of an election may not be ascertained prior to election day. But ascertaining the "legality" or "conduct" of an election could potentially apply before the election as well as after. Construing § 17-16-44, this Court has stated: "`Construing this statute as a whole, it appears, broadly speaking, to cover cases inquiring into the validity of elections theretofore held — a proceeding in the nature of a contest of an election, whether the legality, conduct or results of the election be the point of attack.'" King v. Campbell, 988 So.2d 969, 977 (Ala.2007) (quoting Dennis v. Prather, 212 Ala. 449, 452, 103 So. 59, 62 (1925), which construes a predecessor statute to § 17-16-44).

An election contest can occur only after an election has taken place. See Sears v. McCrory, 43 So.3d 1211, 1215 n. 4 (Ala. 2009) (stating that "an election contest cannot be filed until after a candidate is `declared elected'" (citing Smith v. Burkhalter, 28 So.3d 730, 735 (Ala.2009))). The plaintiffs' pre-election request for an injunction preventing the placement of constitutionally unqualified presidential candidates on the ballot (or ordering their removal) thus does not implicate the jurisdiction-stripping statute, which applies only to post-election actions. However, § 17-16-44 does interdict the plaintiffs' post-election request for relief. No Alabama statute "specially and specifically" provides any state court with jurisdiction to entertain a contest of a federal election. See § 17-16-40, Ala.Code 1975 (providing for an eligibility challenge as part of a post-election contest of enumerated state offices).16 In their post-election "praecipe" the plaintiffs requested that the circuit court order the Secretary of State to decertify the Alabama votes for any 2012 presidential candidate who did not provide an authenticated birth certificate. Under § 17-16-44 no jurisdiction exists in any Alabama court to decertify the votes of a federal election.

C. Federal-Law Questions

The Secretary of State has a duty under state law to examine the qualifications of national-convention nominees who ran in the presidential primary before placing their names on the general-election ballot. The jurisdiction-stripping statute forbids inquiry into the eligibility of presidential candidates once an election has occurred, but it does not preclude such an inquiry before the election.

I now address whether the Secretary of State as part of her limited state-law duty to qualify certain presidential candidates for the ballot must take cognizance of the presidential-qualifications clause of the United States Constitution and, in particular, the natural-born-citizen requirement. I also address whether, regardless of the requirements or limitations of state law, the Secretary of State has a duty arising directly under the United States Constitution to qualify all presidential candidates under the presidential-qualifications clause before printing their names on the general-election ballot. "The relative importance to the State of its own law is not material when there is a conflict with a valid federal law, for the Framers of our Constitution provided that the federal law must prevail." Free v. Bland, 369 U.S. 663, 666, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962). Because the duty of state executive officers to enforce the qualifications clause may differ depending on whether a challenge is brought before the identity of the President-elect is determined or afterwards, I treat these two scenarios separately.17

1. Challenges to the Qualifications of the President-Elect

When federal courts discern a "textually demonstrable constitutional commitment of [an] issue to a coordinate political department," Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), they ordinarily consider the matter a nonjusticiable political question and defer to the designated branch under the separation-of-powers doctrine. The Constitution assigns Congress the responsibility to resolve challenges to the qualifications of a President-elect or a sitting President. Article 2, § 1, of the United States Constitution establishes the electoral college. The Twelfth Amendment designates how electors certify their votes for President and Vice President to the president of the Senate, how those electoral votes are counted, and how a President is chosen if no candidate has a majority. The Twentieth Amendment in turn details how the President is chosen if the President-elect dies or "shall have failed to qualify." The Twenty-Fifth Amendment provides for a transfer of power in the event the President "is unable to discharge the powers and duties of his office." Finally, §§ 2 and 3 of Article I provide for impeachment and removal of the President.

These provisions, taken together, lodge with Congress the power to confirm the election of a President and to remove a President from office. Additionally, 3 U.S.C. § 15 provides detailed instructions for the counting of electoral votes, including a mechanism to hear and resolve objections. A federal district court has stated:

Robinson v. Bowen, 567 F.Supp.2d 1144, 1147 (N.D.Cal.2008).18 Once the states have cast their electoral votes, "the issue of the President's qualifications and his removal from office are textually committed to the legislative branch and not the judicial branch." Grinols v. Electoral Coll., (No. 2:12-cv-02997-MCE-DAD, May 23, 2013) (E.D.Cal.2013) (not reported in F.Supp.2d). See also Rhodes v. MacDonald, 670 F.Supp.2d 1363, 1377 (M.D.Ga.2009) (noting that "if the President were elected to the office by knowingly and fraudulently concealing evidence of his constitutional disqualification, then [the] mechanism [of impeachment] exists for removing him from office").

In State v. Albritton, 251 Ala. 422, 37 So.2d 640 (1948), the State of Alabama brought suit seeking to restrain Democratic Party electors from refusing to vote for Harry Truman were he to be the party's presidential nominee. This Court refused to intervene in what it considered a "political matter," citing among other authority the predecessor to § 17-16-44 and pointing the litigants to a federal remedy: "Section 17, Title 3, U.S.C.A. [currently 3 U.S.C. § 15], provides a complete remedy for contesting irregularity of casting votes by presidential electors." 251 Ala. at 425, 37 So.2d at 643. Compare Hutchinson v. Miller, 797 F.2d 1279, 1284 (4th Cir.1986) ("Had the framers wished the federal judiciary to umpire election contests, they could have so provided. Instead, they reposed primary trust in popular representatives and in political correctives.").

Because Congress completely occupies the field of determining the qualifications of a President-elect or a sitting President to hold office, the political-question doctrine ousts federal courts from having jurisdiction over those particular questions.19 State courts should not rush in where federal courts decline to tread. See Strunk v. New York State Bd. of Elections, 35 Misc.3d 1208(A), 950 N.Y.S.2d 722 (table) (Sup.Ct.2012) (unreported disposition) ("Federal courts have no role in this process. Plainly, state courts have no role."). The doctrine of field preemption requires that states not regulate in an area exclusively occupied by Congress. Preemption occurs "where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the states to supplement federal law...." Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 368, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986) (quoted in General Motors Corp. v. Kilgore, 853 So.2d 171, 174 (Ala. 2002)). Field preemption has been found when the need exists for uniform federal treatment of a subject. See Davis v. Redstone Fed. Credit Union, 401 So.2d 49, 51 (Ala.Civ.App.1979).

Under the political-question and preemption doctrines, Alabama state courts are without power to regulate the conduct of a presidential election after the President-elect has been selected. Likewise, the Secretary of State also lacks authority to decertify Alabama's electoral votes for the President-elect.

2. Challenges to the Qualifications of Presidential Candidates

A state law that required birth certificates from presidential candidates as a precondition to placement on the ballot would likely pass muster under federal preemption law. Such a law would not conflict with the Constitution, but would rather harmonize with the natural-born-citizen clause. New Hampshire, for example, requires an affirmation that a person is a "natural born citizen" as a condition to placing that person's name on a presidential-election ballot. N.H.Rev.Stat. Ann. § 655:47. See also Hassan v. Colorado, 870 F.Supp.2d 1192, 1201 (D.Colo.2012), aff'd, 495 Fed.Appx. 947 (10th Cir.2012) (upholding a Colorado law requiring all presidential candidates to affirm that they are natural-born citizens). Although states have no power "to add qualifications to those enumerated in the Constitution," U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 805, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995), they certainly are not limited in enforcing those stated therein.20

a. The Grant of Power to the States to Appoint Presidential Electors

The selection of presidential electors is an exclusive state function subject only to congressional determination of when the electors shall be selected and when they shall cast their votes.

U.S. Const. Art. II, § 1, cls. 2 & 3 (emphasis added). "In short, the appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States." McPherson v. Blacker, 146 U.S. 1, 35, 13 S.Ct. 3, 36 L.Ed. 869 (1892). See also Opinion of the Justices No. 87, 250 Ala. 399, 401, 34 So.2d 598, 600 (1948) (same). "Congress has never undertaken to interfere with the manner of appointing electors ... but has left these matters to the control of the states." Fitzgerald v. Green, 134 U.S. 377, 380, 10 S.Ct. 586, 33 L.Ed. 951 (1890). The electors, called into existence by the United States Constitution, act by authority of the state in choosing a President and Vice President:

Ray v. Blair, 343 U.S. 214, 224-25, 72 S.Ct. 654, 96 L.Ed. 894 (1952). See also Burroughs v. United States, 290 U.S. 534, 545, 54 S.Ct. 287, 78 L.Ed. 484 (1934) (same); Opinion of the Justices No. 194, 283 Ala. 341, 343, 217 So.2d 53, 55 (1968) (quoting Green, 134 U.S. at 379, 10 S.Ct. 586) (same); U.S. Term Limits, 514 U.S. at 805, 115 S.Ct. 1842 (noting that the Constitution provides "express delegations of power to the States to act with respect to federal elections").

In contrast to the detailed provisions in the Twelfth Amendment that allocate to Congress the authority to count the electoral votes and, in the absence of a majority, to choose the President and Vice President, the Constitution grants "plenary power to the state legislatures in the matter of the appointment of electors." McPherson, 146 U.S. at 35, 13 S.Ct. 3 (emphasis added). No constitutional division of power between the states and the federal government or between the different branches of government hinders any state from selecting its allocated portion of the members of the electoral college. State power, far from being preempted in this area, is expressly bestowed. For implementation in Alabama see §§ 17-14-30 through -37, Ala.Code 1975 ("Elections for Presidential and Vice Presidential Electors").

The authority of the states to select electors, however, does not extend to abrogating the qualifications clause.

McPherson, 146 U.S. at 35, 13 S.Ct. 3 (emphasis added). "[T]he First Section of the Second Article of the Constitution" "does grant extensive power to the States to pass laws regulating the selection of electors.... [T]hese granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution." Williams v. Rhodes, 393 U.S. 23, 29, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (emphasis added). See also Ray v. Blair, 343 U.S. at 227, 72 S.Ct. 654 (noting "the state's right to appoint electors in such manner, subject to possible constitutional limitations, as it may choose" (emphasis added)); Williams v. Virginia State Bd. of Elections, 288 F.Supp. 622, 626 (E.D.Va. 1968), aff'd mem., 393 U.S. 320, 89 S.Ct. 555, 21 L.Ed.2d 517 (1969) ("In short, the manner of appointment must itself be free of Constitutional infirmity.").

Although the electoral college was originally established to be an independent body of judicious individuals who would exercise their discretion in the same manner as other chosen representatives, in practice the electors have been chosen by popular vote in tandem with the presidential candidates they are pledged to support.21 Alabama law makes this practice mandatory. See § 17-14-31(c), Ala.Code 1975. Although the names of the electors are not printed on the presidential ballot, § 17-14-32, Ala.Code 1975, "[a] vote for a particular presidential candidate is counted as a vote for the slate of electors pledged to support him." Hitson v. Baggett, 446 F.Supp. 674, 675 (M.D.Ala.1978), aff'd mem., 580 F.2d 1051 (5th Cir.1978). Accordingly, when the Secretary of State, pursuant to state law, authorizes the printing of names of presidential candidates on the general-election ballot, he or she is also participating in executing the state's power under Article II of the United States Constitution to select presidential electors. This power, however, expressly granted to the States by the Constitution, must be exercised in conformity with other provisions of the Constitution, including the qualifications clause.

b. The Duty of the Secretary of State to Support the United States Constitution

The United States Constitution is the supreme law of the land. "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof... shall be the supreme Law of the Land...." U.S. Const. Art. VI, cl. 2. In the immediately following clause the Constitution binds state officials to obey this mandate: "[A]ll executive and judicial Officers... of the several states, shall be bound by Oath or Affirmation, to support this Constitution...." U.S. Const. Art. VI, cl. 3. The Alabama Constitution requires state officials to take a similar oath or affirmation to support the federal and state constitutions:

Art. XVI, § 279, Ala. Const.1901. See also Speiser v. Randall, 357 U.S. 513, 536, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958) (Douglas, J., concurring) ("All public officials — state and federal — must take an oath to support the Constitution by the express command of Article VI of the Constitution."); The Federalist No. 27, at 175 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (noting that "all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath" to support the constitution as the supreme law of the land); Shuttlesworth v. Birmingham Bd. of Educ., 162 F.Supp. 372, 381 (N.D.Ala.1958) ("As executive officers of the State, the members of the defendant [Birmingham] Board [of Education] are likewise required to `be bound by Oath or Affirmation to support this Constitution.'").

The oath to support the constitution, wrote Justice Story,

III Joseph Story, Commentaries on the Constitution of the United States § 1838 (1833). Story explained the purpose for state officers to execute the oath: "The members and officers of the state governments have an essential agency in giving effect to the national constitution.... [F]unctions, devolving on the state authorities, render it highly important, that they should be under a solemn obligation to obey the constitution." Id., § 1839. George Washington admonished his countrymen that "`"the constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all."'" State v. Manley, 441 So.2d 864, 867 (Ala.1983) (quoting In re Opinion to the Governor, 55 R.I. 56, 61, 178 A. 433, 436 (1935), quoting in turn R.I. Const. Art. I, § 1).

Under the Constitutions of the United States and of the State of Alabama, the Secretary of State, as an executive officer of the State of Alabama, has an affirmative legal duty to recognize and support the United States Constitution as the supreme law of the land.22 The United States Constitution does not supply a detailed catalog of the specific duties encompassed by the Article VI oath of allegiance. "A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind." M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407, 4 L.Ed. 579 (1819). Nonetheless, as Chief Justice John Marshall stated for the Court in regard to the oath for judicial office:

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180, 2 L.Ed. 60 (1803). See also Collier v. Frierson, 24 Ala. 100, 109 (1854) (discussing the constitutional provisions for amending the state constitution and asking: "But to what purpose are these acts required, or these requisitions enjoined, if the Legislature or any other department of the government, can dispense with them").

The "last and closing clause of the Constitution" binds all executive and judicial officers of the several states "to preserve it in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State." Ableman v. Booth, 62 U.S. (21 How.) 506, 524, 16 L.Ed. 169 (1858) (emphasis added).

62 U.S. (21 How.) at 525.

c. Enforcing the Qualifications Clause

The qualifications clause is justiciable. In two cases federal district courts have upheld decisions of state officials, including secretaries of state, who refused to qualify proposed candidates for the presidential ballot who were less than 35 years old. In Socialist Workers Party of Illinois v. Ogilvie, 357 F.Supp. 109 (N.D.Ill.1972), the court declined to enjoin the decision of the State Electoral Board, which included as a member the Illinois Secretary of State, refusing to place on the presidential ballot the Socialist Workers Party candidate for President, who was admittedly 31 years old. The candidate, the court found, "does not fulfill the eligibility requirements specified in Article II, Section 1 of the United States Constitution." 357 F.Supp. at 113. Recently, in Peace & Freedom Party v. Bowen, 912 F.Supp.2d 905 (E.D.Cal.2012), the court upheld a decision of the California Secretary of State refusing to list Peta Lindsay on the 2012 primary ballot as the Peace and Freedom Party candidate for President. The Court noted that Lindsay, whose attorney admitted in a letter that she was 27 years old, "is ineligible to serve as president due to her age." 912 F.Supp.2d at 908.

These cases address situations in which allegedly ineligible presidential candidates have sought judicial relief from the decisions of state election officials excluding them from the ballot because they were underage. See also Hassan v. Colorado, 870 F.Supp.2d 1192, 1195 (D.Colo.2012), aff'd, 495 Fed.Appx. 947 (10th Cir.2012) (denying a motion to enjoin the Colorado Secretary of State from refusing to certify for the presidential ballot a naturalized citizen who could not affirm that he was "`a natural-born citizen of the United States'"). The case before us seeks inverse relief: to require the Secretary of State to investigate for ineligibility candidates she has already certified for the presidential-election ballot and to screen all such candidates for eligibility in the future. In Jones v. Bush, 122 F.Supp.2d 713 (N.D.Tex.2000), aff'd, 244 F.3d 134 (5th Cir.2000) (table), registered voters in Texas sought an injunction to restrain the 32 Texas electors from casting their votes for both George W. Bush as President and Richard B. Cheney as Vice President on the ground that both were inhabitants of Texas in violation of the first clause of the Twelfth Amendment.23 The court found that the voters lacked standing for failure to show particularized injury, id. at 716-18, but nevertheless addressed the merits of the case to "assist the parties in obtaining full appellate review in the short period that remains before the Electoral College votes." Id. at 718. Equating the term "inhabitant" as used in the Twelfth Amendment with the term "domicile" as used in personal-jurisdiction law, the court found that Mr. Cheney was domiciled in, and thus an inhabitant of, Wyoming. Accordingly, the plaintiffs failed to satisfy their burden to show a likelihood of success on the merits of their claim that the Vice President-elect was an inhabitant of Texas. Id. at 718-21.

In Jones v. Bush, the court directly adjudicated, although as dicta, an alleged violation of an eligibility provision of the United States Constitution without any auxiliary grounding in state law. In this case the plaintiffs seek to require the Alabama Secretary of State to respect her duty and oath of allegiance to the United States Constitution either as an adjunct requirement to the "otherwise qualified" phrase in § 17-9-3 or as a freestanding duty under the United States Constitution. The presidential-eligibility provisions of the United States Constitution, where unambiguous and directly applicable to the actions of a particular state official, do not require the existence of a parallel state statute to be enforceable. Otherwise a state could nullify within its borders the eligibility provisions of the federal constitution simply by not passing enabling legislation.

"Constitutional provisions are presumed to be self-executing." 16 C.J.S. Constitutional Law § 89 (2005). "A constitutional provision is considered to be self-executing when additional legislation is not required for it to be effective." Cole v. Riley, 989 So.2d 1001, 1005 n. 2 (Ala.2007). The qualifications clause prohibits anyone from being eligible for the office of President who does not meet the three qualifications stated therein. "[U]sually no legislation is required to effectuate a constitutional provision that is prohibitory in its language...." 16 Am.Jur.2d Constitutional Law § 101 (2009).

As the gatekeeper for presidential-ballot access in Alabama, the Secretary of State is the official upon whom rests the duty to enforce the qualifications clause. "A state acts by its legislative, its executive, or its judicial authorities. It can act in no other way." Ex parte Virginia, 100 U.S. 339, 347, 25 L.Ed. 676 (1879). If the responsible state official could defy or deliberately ignore the Constitution, "the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases." Sterling v. Constantin, 287 U.S. 378, 397-98, 53 S.Ct. 190, 77 L.Ed. 375 (1932). "`[A]n official, whose duty it was to enforce the law, [may not] disregard the very law which it was his duty to enforce....'" Faubus v. United States, 254 F.2d 797, 807 (8th Cir.1958) (quoting Strutwear Knitting Co. v. Olson, 13 F.Supp. 384, 391 (D.Minn.1936)). Compare Seay v. Patterson, 207 F.Supp. 755, 756 (M.D.Ala. 1962) (noting that "the governor of a state when he acts or fails to act in his official capacity must be and is always subject to the constitutional limitations imposed upon him by the Constitution of the United States").

To the extent that state laws did not empower the Secretary of State to implement the requirements of the qualifications clause or even forbade her so to act, such laws would have to recede before her oath to support the Constitution and the superior mandate of the Supremacy Clause. "[C]onflicting obligations" under state law are "without effect" in the face of superseding federal law. Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 691-92, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). Section 17-14-31 requires the Secretary of State to place the names of national-convention nominees on the presidential ballot without any necessity to examine their qualifications unless the candidates ran in the presidential primaries. This provision cannot diminish the eligibility requirements of the presidential-qualifications clause. "There is no such avenue of escape from the paramount authority of the Federal Constitution." Sterling, 287 U.S. at 398, 53 S.Ct. 190.

Further, the Secretary of State may not expressly disavow in her official capacity a requirement of the United States Constitution that she is bound by oath to support and that directly implicates her duties as an executive officer of the State. "The States and their officers are bound by obligations imposed by the Constitution...." Alden v. Maine, 527 U.S. 706, 755, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). Two scholars observe:

Sanford Levinson & Ernest A. Young, Who's Afraid of the Twelfth Amendment?, 29 Fla. St. U.L.Rev. 925, 943 (2001). As Chief Justice John Marshall noted: "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?" Marbury v. Madison, 5 U.S. (1 Cranch) at 176. The statement of the Deputy Secretary of State in an agency capacity that the Secretary of State's "office would not investigate the legitimacy of any candidate" is legally untenable, as is the statement of the Secretary of State in her motion to dismiss that she "has no legal duty to investigate the qualifications of a candidate." Under both the Supremacy Clause and the oath she took to support the United States Constitution, the Secretary of State has a legal duty to observe the presidential-eligibility requirements of Article II, § 1, clause 4 of the United States Constitution. She may not refuse to recognize this duty without violating her oath of office or offending the Supremacy Clause.24 The absence of a specific state-law requirement to enforce the qualifications clause does not operate as a waiver of her superior duty under federal constitutional law. "The laws of the United States are as much a part of the law of Alabama as its own local laws." Forsyth v. Central Foundry Co., 240 Ala. 277, 282, 198 So. 706, 710 (1940).

IV. Remedy

Under Alabama law, the Secretary of State is bound by the "otherwise qualified" clause of § 17-9-3 in making a decision to print on the general-election ballot the names of presidential candidates nominated by a national convention who have also participated in the presidential-preference primary. Those qualifications include the requirements of the presidential-qualifications clause that the Secretary of State is bound by oath and the Supremacy Clause to observe. Because the mandate of the presidential-qualifications clause is self-executing, its effectiveness does not depend on implementing legislation. Thus, regardless of state law, the Secretary of State has a duty to observe the requirements of the presidential-qualifications clause in certifying any candidate for the presidential ballot in the general election.

Section 17-16-44 forbids any state court from ordering the Secretary of State to decertify the votes cast for a presidential candidate after a general election has taken place. Further, any remedy in regard to the qualifications of a President-elect is a congressional responsibility. Once the election of 2012 occurred and Alabama's electoral votes were certified by the Governor and cast on the day designated, the State lost jurisdiction under both state and federal law to alter its electoral votes, thereby making issues of ineligibility or decertification moot. Under the "capable of repetition, yet evading review" exception to mootness, however, the circuit court should have granted the petition for a writ of mandamus to the extent of ordering the Secretary of State to recognize and implement in future presidential elections the mandate of the federal constitution that presidential candidates satisfy the citizenship requirement of Art. II, § 1, cl. 4, of the United States Constitution.

The Secretary of State is a constitutional officer. Art. V, § 134, Ala. Const.1901. The manner in which the Secretary of State implements the federal constitutional mandate falls in the first instance within her executive discretion. Henley v. Birmingham Trust Nat'l Bank, 295 Ala. 38, 56, 322 So.2d 688, 704 (1975) (Maddox, J., dissenting on other grounds) (noting that the attorney general "is a constitutional officer and is vested with executive discretion"). The plaintiffs sought a writ of mandamus from the circuit court ordering the Secretary of State to require from each presidential candidate a verified birth certificate. Presentation of a birth certificate is indeed a common means of determining age and citizenship.25 Although I would not prescribe the manner in which the Secretary of State is to verify eligibility of presidential candidates, I believe she has a duty as the chief elections official of Alabama to implement the natural-born-citizen requirement of Article II, § 4, of the United States Constitution.

V. Conclusion

Although the plaintiffs' request for relief is moot as to the legality, conduct, and results of the 2012 election, under the "capable of repetition, yet evading review" exception to mootness, the circuit court, in my view, should have granted the petition for a writ of mandamus to the extent of ordering the Secretary of State to implement the natural-born-citizen requirement of the presidential-qualifications clause in future elections.

Furthermore, I believe the circuit court should have granted the petition for a writ of mandamus to order the Secretary of State to investigate the qualifications of those candidates who appeared on the 2012 general-election ballot for President of the United States, a duty that existed at the time this petition was filed and the object of the relief requested. Although the removal of a President-elect or a President who has taken the oath of office is within the breast of Congress, the determination of the eligibility of the 2012 presidential candidates before the casting of the electoral votes is a state function.

This matter is of great constitutional significance in regard to the highest office in our land. Should he who was elected to the presidency be determined to be ineligible, the remedy of impeachment is available through the United States Congress, and the plaintiffs in this case, McInnish and Goode, can pursue this remedy through their representatives in Congress.

For the above-stated reasons, I dissent from this Court's decision to affirm the judgment of the circuit court dismissing this action on the motion of the Secretary of State.

PARKER, Justice (dissenting).

I agree with Chief Justice Moore's dissent with the exception explained below.

I agree with Chief Justice Moore's conclusion that the Secretary of State, as the chief elections official of Alabama, has a duty, under both Alabama and federal law, to ensure that the candidates for President of the United States whose names are placed on an Alabama election ballot meet the applicable qualifications. I write separately, however, to clarify that I do not believe that the Secretary of State has an affirmative duty to investigate, on his or her own volition, all the qualifications of every proposed candidate, but that the Secretary of State's duty to investigate a potential candidate's qualifications arises once the Secretary of State has received notice that a potential candidate may lack the necessary qualifications to be placed on an Alabama election ballot. For the following reasons, I believe that, in the present case, the Secretary of State received notice sufficient to raise a duty to investigate the qualifications of President Barack Hussein Obama before including him as a candidate on Alabama's election ballot.

This is not the first time that Hugh McInnish has appeared before this Court concerning this issue. On March 6, 2012, one week before Alabama's primary elections were held on March 13, 2012, McInnish filed in this Court a petition for a writ of mandamus requesting that this Court order the Secretary of State

(Case no. 1110665.) As I noted in my unpublished special concurrence to this Court's order striking McInnish's petition for a writ of mandamus: "McInnish attached certain documentation to his mandamus petition, which, if presented to the appropriate forum as part of a proper evidentiary presentation, would raise serious questions about the authenticity of both the `short form' and the `long form' birth certificates of President Obama that have been made public."

On March 6, 2012, the Secretary of State was served with McInnish's petition for a writ of mandamus, including the attached documentation raising questions about President Obama's qualifications. That documentation served by McInnish on the Secretary of State was sufficient to put the Secretary of State on notice and raise a duty to investigate the qualifications of President Obama before including him as a candidate on an Alabama election ballot.

Therefore, I respectfully dissent from the majority's decision affirming the circuit court's judgment.