How a Legal Website ‘Fixed’ the 2008 Presidential Election

Barack Obama owes a big debt of gratitude to the legal web portal Justia. Without it, he might not be president today. You see, sometime around the time of the 2008 presidential election, Justia founder Tim Stanley “surgically scrubbed” some two dozen Supreme Court cases to remove references to Minor v. Happersett, the 1875 case in which the Supreme Court discussed the meaning of “natural-born citizen.” By so doing, Stanley enabled Obama supporters to overcome the claims of birthers that he was not eligible to be president.

That — as near as I can make sense of it — is the argument being made this week by various birthers, led by New Jersey attorney Leo Donofrio and his blog Natural Born Citizen, in what they are calling JustiaGate. In fact, Donofrio’s latest post goes so far as to suggest that this scrubbing was not limited to Justia, but was a conspiracy implicating Stanley, Carl Malamud of Public.Resource.Org, and the Legal Information Institute at Cornell University. (This blog even gets mentioned for having written positively about Malamud.)

Stanley admits that some citations were mangled, but he told Declan McCullagh at CNET that the cause was a programming error, not a liberal conspiracy, and that the error extended to other cases beyond those that the birthers are focusing on.

“This has nothing to do with President Obama and it is not a conspiracy,” Stanley told McCullagh. “When we discovered the issue, we corrected the script and the cases now render correctly. The issue was not limited to the cases these folks are focused on. We’ve had internal discussions on how to make sure this does not happen in the future with additional visual and parsing checks.”

Even so, Donofrio is asking for a criminal investigation of Stanley. Exactly what crime he is alleged to have committed, I don’t know. Ever more baffling is how Donofrio sees this as affecting the outcome of the election. The closest I come to understanding his assertion is where he says this:

And the construction by the Supreme Court – in Minor v. Happersett – of the natural-born citizen clause could – had it been known to the nation at large prior to the ’08 election – have deprived Obama of access to the ballots should the several Secretaries of State been up to speed on the true history of this crucial Supreme Court precedent, a precedent which was completely ignored prior to the ’08 election.

I guess this is a back-handed compliment to Justia. Even though Justia is not the official reporter of Supreme Court cases, and even through there are any number of sources — commercial and free — of Supreme Court opinions, Donofrio believes that a glitch in a few old cases on Justia could have swayed the entire outcome of the 2008 election. I bet even Justia never knew it had become so central to U.S. legal research.