THE UNITED STATESDISTRICT COURT
DISTRICT OF NEW HAMPSHTRE
Fred Hollander,
Plaintiff,
vs.
CIVIL ACTION NO. l:08-cv-99-JL
SenatorJohn McCain
&
Republican National Committee
Defendants.
First Amended Complaint
Plaintiff, Fred Hollander ("Hollander") brings this action againstdefendants,SenatorJohn
McCain ("McCain") and the RepublicanNational Committee("RNC"), on behalf of himself and
allegesupon information and beliel except as to his own actions, and the facts that are a matter
of public record,as follows:
OVERVIEW
l. Plaintiff brings this action: (1) to remedyhis disenfranchisement
during the New
Hampshire primary election for the Republican nomination of their candidatefor president in the
2008 election;and (2) to preventthe disenfranchisement
of him and an estimated100 million
additional voters who may otherwise cast their vote in the 2008 national election for a candidate
who may later be declaredineligible to the Offrce of President.
2. As alleged more fully below, McCain is not a natural born citizen and therefore not
eligible to the Office of Presidentas prescribedby Article II, Section1 of the United States
Constitution.
3. Plaintiff seeksordersfrom this Court: (1) for McCain withdraw his candidacyfor the
nomination of the Republican Party for the Office of President;and (2) for the RNC to nominate
a candidateother than McCain for the Office of Presidentin the 2008 national election.
THE PARTIES
4. Plaintiff Fred Hollander is a citizen of the Stateof New Hampshirewho residesin
Nashua,Hillsborough County, New Hampshire. He is a registeredvoter with Republican Party
and plans to vote in the 2008 nationalelectionfor the Office of President.
5. DefendantSenatorJohn McCain,24l RussellSenateOffice Building, Washington,
D.C. 20510, is the presumptivenomineeof the RepublicanParty.As a personborn outsidethe
United States,McCain is not a natural born citizen as required to be eligible to the Office of
Presidentunder the terms of Article 2, Section1 of the United StatesConstitution.McCain
campaignedin the Stateof New Hampshire and participated in the Republican primary in New
Hampshire which helped him to win the Republican nomination for the Offrce of President.
6. DefendantRepublicanNational Committee,310 First Street,Washington,D.C. 20003,
is the organization that will, by its own party rules, nominate SenatorJohn McCain as the
Republican Party candidatefor the Office of Presidentin the 2008 national election. The RNC
held its first primary for the presidential nomination in the Stateof New Hampshire.
JURISDICTION AND VENUE
7. This Court hasjurisdiction as vestedunderArticle III of the Constitutionof the United
Statesfor all cases,in Law and Equity,arisingunderthis Constitution,to interpretthe meaning
of "natural born citizen" as it appliesto the eligibility of the Office of President.Plaintiff's
standingis: (l) as a voterwho votedin the New Hampshireprimaryelectionfor the Republican
nominationof their candidatefor presidentin the 2008 election;(2) as a voter who plansto vote
in the 2008 electionfor the Office of President;and (3) as a voter registeredwith the Republican
Party.
8. This is the proper venuebecausethe plaintiff is a citizen of the Stateof New
Hampshire and both defendantshave availed themselvesof the resourcesof the Stateof New
Hampshire.
SUMMARY OF ARGUMENT
9. SenatorJohn McCain, having won many RepublicanParty primary electionsand
who havepledgedto nominatehim as the
caucuses,
hasbeenallocateda majorityof delegates
RepublicanParty candidatefor the 2008 electionto the Office of President.As the presumptive
nomineeof the RepublicanParty,it is likely, or at leastvery possible,that the plaintiff and 100
million additionalvoterswould casttheir votefor SenatorJohnMcCain in the 2008 electionfor
2
the Presidentof the United States.Shouldhe win the electionto the Office of Presidentand later
be declaredineligiblefor this office by a subsequent
challengeto this Court,the plaintiff and 100
million additionalvoterswould be disenfranchised.
10. In this scenario,this Court would then be in the dauntingpositionof decidingwho
would sit in the Office of Presidentin placeof SenatorJohn McCain; perhapsthe Republican
candidatefor the Office of Vice Presidentor the Democraticcandidatefor the Office of
President.
I L In a secondpossiblescenario,an unknownnumberof voters,possiblylargeenoughto
affect the outcomeof the 2008 electionto the Office of President,may choosenot to vote for
SenatorJohn McCain simply becausethey fear their voteswill be wastedon a candidatewho
may laterbe disqualified.
ARGUMENT
12. The plaintiff, hundredsof thousandsof votersin New Hampshireand millions of
voters nationally were disenfranchisedduring the primary election for the Republican
nominationof their candidatefor presidentin the 2008 election("RepublicanPrimary"). By
nominating a candidatewho is not eligible to the Office of President,the plaintiff and all other
voters who voted in the Republican Primary were disenfranchised.
13. The allocationof votes,and subsequentlydelegatesat the nominatingconventionof
the RepublicanNational Committee,to a candidatewho is not eligible to the Office of President
is a violation of Section I of the FourteenthAmendment. As SenatorJohn McCain will not be
able to serve in the Office of President,the votes of those who participated in the Republican
Primary, will count lessthan thosewho voted in other parties' primary elections.
14. SenatorJohn McCain,for all intentsand purposes,
haswon the Republican
nominationas its candidatefor the Office of Presidentin the 2008 electionthis November.He
hasbeenallocateda majority of the availabledelegatesneededto nominatehim at the
RepublicanNationalConvention.He is the presumptivenominee,yet due to the natureof his
citizenship,his eligibility for the Office of Presidentis in question.
15.John SidneyMcCain III was born on August 29,1936to John S. McCain,Jr. and
RobertaWright at the Coco Solo Naval Air Stationin Panama.By the FourteenthAmendment,
to have beengrantedcitizenshipjus soli at birth, he would have had to beenborn on land of
United Statesjurisdiction,yet by no authoritywas the Coco Solo Naval Air Stationwithin
United Statesjurisdictionat the time of his birth in 1936.The FourteenthAmendmentonly
providestwo methodsof citizenship:(l) born in the United States;or (2) naturalizedin the
United States.SinceSenatorJohn McCain was not born in the United States,or evenany land
This is furthersupportedby the U.S. State
within U.S.jurisdiction,he was thereforenaturalized.
Department,whereit is written in 7 FAM I I 16.l-4(c)rthat the Coco Solo Naval Air Stationwas
not part of the United Stateswithin the meaningof the FourteenthAmendment.This regulation
alsoconcludesthat he did not acquireU.S. citizenshipby reasonof birth. He only acquired
citizenshipby jus sanguinisdue that both of his parentswere U.S. citizens.
16.The United Statesneverintended,and certainlyneverdeclared,the CanalZone as a
U.S. territory.The StateDepartmentwas not the only authorityto declarethat the Coco Solo
Naval Air Stationwas not part of the United States.In fact,the Hay-Bunau-VarillaTreaty,2
ratifiedby the U.S. Senateon February23,l9O4 and by PresidentTheodoreRoosevelton
February25, 1904,maintainsthe CanalZone as sovereignto the Republicof Panama.The
languageapprovedin this treatymakesit very clear the sovereigntyof the CanalZone was to
remainwith the Republicof Panama:
...which the United Stateswould possessand exerciseif it were
the sovereignof the territory within which said lands and waters
are locatedto the entireexclusionof the exerciseby the Republic
of Panamaof any suchsovereignrights,poweror authority.
17. Along with the Senate'sand the President'sauthorityto maintainsovereigntyof the
CanalZone with the Republicof Panama,the SupremeCourt concurredthat the United States
did not havesovereigntyover the CanalZone.3Vermilya-BrownCo. v . Connell,335U.S. 377
( 1948)The SupremeCourt again referencedVermilya-Brownwhen it found that no transferof
abroadand U.S. diplomaticor
popularbelief,U.S. military installations
'Z nAM t t t6.t-+(c) Despitervidespread
A child born on the
l4'h
Amendment.
of
the
rvithin
meaning
the
part
the
United
States
of
are
not
facilities
consular
premisesof sucha facility is not subjectto thejurisdiction of the United Statesand doesno acquireU.S. citizenship
by reasonof birth.
I Hay-Bunau-VarillaTreaty. Article III The Republicof Panamagrantsto the United Statesall the rights, power and
authority rvithin the zone mentionand describedin Article II of this agreementand rvithin the limits of all auxiliary
landsand \,vatersmentionedand describedin said Article II which the United Stateslvould possessand exerciseif it
were the sovereignof the territory r.vithinrvhich said landsand lvatersare locatedto the entire exclusionof the
exerciseby the Republicof Panamaofany suchsovereignrights,porveror authority.
3 Vermilya-BrorvnCo. v. ConnellSo the Administratorof the Wage-HourDivisionhasissueda statementof general
policy or interpretationthat directsall officers and agenciesof his division to apply this Act to the CanalZone,
admittedlyterritory over rvhich rve do not havesovereignty.
4
sovereigntyoccurredwith respectto military baseson land leasedby a foreign country.4(Jnited
Statesv. Spelar,338U.S.217 (1949)
18.By the conclusionsabovethat the placeof birth of SenatorJohnMcCain was
sovereignto the Republicof Panama,and not within thejurisdictionof the United States,his
citizenship,by authorityof the FourteenthAmendment,was by naturalization,
not by birth.
19. Federallaw furtherindicatesthat SenatorJohnMcCain is indeeda naturalizedcitizen;
not a naturalborn citizen.lt hasbeenestablishedabovethat the CanalZone, which encompassed
the Coco Solo Naval Air Station,was not within thejurisdictionof the United States.Federallaw
which appliesin generalto personsborn outsidethe United States,8 U.S.C. 1401(c),5
declares
thoseborn of parentswho are U.S. citizens,as citizens.By the natureof this statute,which
appliesto thoseborn outsidethe United States,it must refer, at leastin part, to citizenshipby
naturalization.
This statutewould not granthim "natural"citizenship,evenit were applicableto
his birth in the CanalZone.ln any case,a statutethat is directly applicableto the birth of Senator
John McCain,8 U.S.C. la03(a),6"declares"him a citizenduethat his birth in the CanalZone
doesnot qualify him as a naturalborn citizen.Clearly,federallaw declaresSenatorJohnMcCain
a"naturalized" citizen.The SupremeCourt recognizedthe differencebetweena "native born"
citizenand a "naturalized"citizenin the matterof eligibility to be President.T
Schneiderv. Rusk,
377 U.S. 163(r9@'\
20. Additional supportfor this argumentcan be found back in the laws of the First
Congress.Although I Stat.1038granted"natural"citizenshipto childrenof citizensof the
United Stateswho were born out of the limits of the United States.thisstatutewas soon
o United Statesv. SpelarTo the extentthat Vermilya-Brown Co., Inc., v. Connell hasany applicationto the caseat
bar, it standsas authority for our result here,for it postulatesthat the executiveagreementand leaseseffectedno
respectto the military basesconcerned.
transferof sovereignty1338U.S. 217,2221r.vith
t 8 U.S.C. t+0t(c) A personborn outsidethe United Statesand its outlying possessions
of parentsboth of who are
citizensof the United Statesand one of whom has had a residencein the United Statesor one of its outlying
prior to the birth of suchperson;
possessions,
o 8 U.S.C. 1403(a)Any personborn in the CanalZone on or after February26,1904, and lvhetherbeforeor after the
effective date of this chapter,rvhosefather or mother or both at the time of the birth of such personlvas or is a
citizen of the United States,is declaredto be a citizen of the United States.
7 Schneiderv. Rusk We startfrom the premisethat the rights of citizenshipof the native born and of the naturalized
personare of the samedignity, and are coextensive.The only differencedrawn by the Constitutionis that only the
"naturalborn" citizenis eligibleto be President.
Art. II, $ l. Ipl66l
' I Stat. 103 And the children of citizensof the United States,that may be born beyondsea,or out of the limits of
the United States.shall be consideredas naturalborn citizens...
supersededby 1 Stat. 414 Chapter20, Section | ! 4 which conspicuouslyremovedthe critical
term "natural."
21. By statutes,currentand past;by the authority of the Presidentof the United States;and
by the authority of the SupremeCourt, SenatorJohn McCain's citizenshipwas not by birth, but
by declaration.As a naturalizedcitizen, SenatorJohn McCain doesnot meetthe requirementsfor
eligibility for the Office of Presidentas prescribedin Article l, Section2toof the United States
Constitution.
22. WhiIe the plaintiff respectsSenatorJohn McCain's lifetime of serviceto our country,
irrelevantto this issuenow beforethis Court.Plaintiff alsoconcedesthe
it is nonetheless
unfortunateirony that a personborn outsideof the United States,becausehis father was serving
our countryas a memberof U.S. Navy, shouldbe found ineligiblefor the Office of President.
However, shouldan exceptionbe madefor personsborn to parentsservingin our armedforces,
we would startdown a dangerousand slippery slope.Would personsborn to parentsservingour
country by meansother than the armedforcesdeserveany lessconsideration?And what of
personswhoseparentsare servingour country,but are not U.S. citizens?The United States
Constitutiondoesnot makeany suchexceptions,nor doesit makeany qualificationsbasedon
the serviceof the personor his parents,and it is fair to assumethat the lack of exceptionswas
intentionaland by soundreason.
23. SenatorJohn McCain, in spiteof the circumstancesthat might otherwisecontradictthe
plaintiff's claim, is unequivocallyineligibleto the Office of the President.
The Republican
National Committeeshouldnot be permittedto nominatea candidatewho is not eligible to serve
in the office for which he is nominated.This would lead to the disenfranchisement
of the
plaintiff and approximately100 million additionalvoters.With plenty of time beforethe national
conventionof the RepublicanParty,the RepublicanNational Committeestill hasthe opportunity
to nominatea different candidate:a candidatewho is elisible to the Office of President.
' I Stat.414 Chapter20. Section I ll 4 ...andthe children of citizensof the United States,born out of the limits and
jurisdictionof the United States,shallbe considered
as citizensof the UnitedStates...
Article
l.
2
No
Person
U.S.
Constitution.
Section
except
a naturalborn Citizen, or a Citizen of the United States,
'0
at the time of the Adoption of this Constitution,shall be eligible to the Office of President;
6
CONCLUSION
24. By the authorityof the Presidentof the United Statesand by the U.S. Senate,the Coco
Solo Naval Air Stationin 1936remainedsovereignto the Republicof Panama.This positionwas
reinforcedby the SupremeCourt,as was the positionthat overseasmilitary bases,in general,
remainedsovereignto the foreigncountryby which suchland is leased.It was alsostatedclearly
by the U.S. StateDepartmentthat the CanalZone was not underthe jurisdiction of the United
Statesand therefore,children born in the CanalZone were not U.S. citizensby birth.
25. Federalstatutes,both pastand current,make it clear that personsborn outsidethe
United States,specificallythoseborn in the CanalZone,are declaredcitizensand are therefore,
not naturalborn citizens.By the FourteenthAmendment,not being born in the United States,
SenatorJohn McCain is a naturalizedcitizen.
26.The United StatesConstitutionmakesthe very cleardistinction;a distinction
recognizedby the SupremeCourt, that only a naturalborn citizen shall be eligible to the Office
of President.The presumptivenomineeof the RepublicanPartyfor the Office of President,
SenatorJohnMcCain, is unequivocallynot eligibleto the Office of President.
27.The fear of voter disenfranchisement
has risento a level of suchawarenessthat voters
have becomehighly sensitiveat any sign that their vote may not be counted.The issueof
eligibility of SenatorJohn McCain hasbeenreceivingan increasingamountof exposurerecently
and will likely becomea key issuefor votersas the 2008 electionfor the Office of President
draws near.The plaintiff praysthis HonorableCourt will allay voters' fears by ruling on the
eligibility of SenatorJohn McCain while painlessremediesare still available.
28. The plaintiff and all voterswho participatedin the primary electionfor the Republican
nominationof their candidatefor presidentin the 2008 electionshouldhavetheir votescounted,
and countedequally,by guaranteeingthat only candidateswho are eligible to the Office of
Presidentmay be assigneddelegates
at the RepublicanNationalConvention.
PRAYER FOR RELIEF
WHEREFORE, for all of the above-statedreasons,plaintiff, on behalf of himself,
praysthis HonorableCourt:
A. DeclareSenatorJohn McCain ineligibleto the Office of President;
B. Order SenatorJohn McCain to withdrawhis candidacyfor this nomination;and
C. Orderthe RepublicanNationalCommitteeto: (l) reassignany and all delegates
currently assignedto SenatorJohn McCain to other candidateswho are eligible to the Office of
President;and (2) nominatea candidatewho is eligible to the Office of President.
Respectfullysubmitted,
Date:April I, 2008
FredHollander,Pro Se
P.O.Box6161
Nashua,
NH 03063-6161
(603)882-ss6s
Certificate of Service
I hereby certiff that a copy of the foregoing pleading was servedon the defendantpursuant
to Fed.R.Civ.P5 (bX2XE) by e-mailing the pleadingto mail@nhlawoffice.com.
Fred Hollander,Pro Se