Like New Hampshire, Illinois Electoral Board finds it has jurisdiction to review Ted Cruz's eligibility

Recently, the New Hampshire Ballot Law Commission concluded that it was statutorily authorized to hear a challenge to Ted Cruz's eligibility to appear on the ballot on the basis that he was not a "natural born citizen," and it concluded that he met that standard--or, at least, that there was no "obvious defect" calling for his removal.

Yesterday, the Illinois State Board of Elections heard a pair of challenges (PDF) to Mr. Cruz's eligibility., Joyce v. Cruz and Graham v. Cruz. (Mr. Graham also challenged Marco Rubio's eligibility.) A hearing officer concluded that the State Board of Elections had jurisdiction beyond simply ascertaining whether the paperwork complied with the Election Code, and did have the jurisdiction to review whether Mr. Cruz was a "natural born citizen." Further, it concluded that eligibility questions were appropriately within the scope of authority of the Electoral Board. Finally, it concluded that Mr. Cruz met the "natural born citizen" qualification. The Board adopted these findings.

Illinois law requires that candidates file a "Statement of Candidacy," including a statement that one is "qualified" for office. The Electoral Board is tasked with making sure that the papers are "valid" or in "proper form." Mr. Cruz contended that such power means that the Electoral Board lacks jurisdiction to hear a question regarding qualifications. The Board decided otherwise: "It is alleged that Ted Cruz is not legally qualified because he is not a natural born citizen. Thus, the Statement of Candidacy is properly before the Electoral Board to determine if the Candidate is a natural born citizen."

As I've written extensively, state agencies should be reluctant to assume such power absent rather clear authorization from the state legislature. But, like New Hampshire's election commission, this board assumed it did have the power.

Mr. Cruz also objected that the Electoral College, not a state agency, has the power to review qualifications. The Electoral Board rejected this argument, too. In the words of the Hearing Officer: "I disagree with the Candidate's assertion. The Statement of Candidacy is being questioned by the Objector. In order to determine the validity of the Statement of Candidacy, the threshold question of whether or not Ted Cruz is a natural born citizen must be addressed. Thus, the Electoral Board does have subject matter jurisdiction . . . ."

The Board went on to conclude that Mr. Cruz was eligible at birth.

Fictional Attorney of the Month: Mitch Grinder

Rob Lowe, an actor, plays Dean Sanderson, an actor, who once played the role of Mitch Grinder, the star of the melodramatic legal television series, The Grinder. Known for his enterprising legal prowess, dramatic courtroom outbursts, and signature line, "Grinder rests," Dean has retired as the show ended its television run.

He moves back to Idaho to live with his brother, Stewart, who is an actual attorney working at the law firm their father started. Stewart, played by Fred Savage, is the straight-laced attorney driven mad by his brother's theatrical antics. Dean now wants to play a role in the law firm, because--well, he did play one on television, and he was quite good at it.

Dean constantly falls back into his role as Mitch Grinder, believing that he, and the American legal system, operate as if television were reality. The sheer self-awareness of the absurdity of legal fiction is enough to make Mitch Grinder this month's Fictional Attorney of the Month.

One in ten law school enrollees is not a part of a JD program

A couple of years ago, I visualized the rather significant increase in non-JD enrollment at many American law schools after identifying this rising trend at many law schools. The ABA did not disclose figures for the Class of 2014. But the figures for 2015-2016 (PDF) are even more dramatic.

ABA-accredited schools reported 13,086 non-JD enrollees, up from 11,1132 just two years ago. Visualizing the overall non-JD enrollment over time displays the rather recent sharper uptick on the heels of some slow increases over the years.

But one comparison that's even more stark is the number of non-JD enrollees as a percentage of total law school enrollment. As JD programs shrink, non-JD enrollees are not simply a larger number of students in the seats, but a larger percentage of the law school programming overall.

In the Fall of 2012, 7.4%, or about 1 in 14 law school enrollees, were non-JD students. In the Fall of 2013, that rose to 8.0%, or about 1 in 12. This year, it's 10.3%, or about 1 in 10.

That's a rather dramatic shift in the overall composition of legal education in the period of a few years. How long it lasts, where the trend goes, and what impact non-JD programming has on the JD programming remains to be seen.

Display note: I did start the y-axis for non-JD percentage at a non-zero number to avoid excessive white space, but as it displays relative changes in value as a percentage, I think it is not terribly deceptive. It's a reason I started the overall numbers at zero, despite the white space below.

As full-time law faculty numbers shrink, law school administrator numbers grow

On the heels of Matt Leichter's recent work on law school faculty sizes, I looked at some of the data myself. I limited myself to 2011 to the present, because that's the only data disclosed by the ABA in a usable format. (Older 509 data is available but is bound in isolated PDFs until some good soul helps liberate it.)

Adding to the complexity are methodological changes by the ABA. It used to separate "full-time" tenured and tenure-track faculty from "other full-time" faculty, such as clinicians. In 2014, it did not separate those categories, but it also yielded a fairly significant one-year decline in that category, suggesting confusion or misreporting of data. And further adding to the complexity are seemingly-random fluctuations in faculty sizes from year to year, or stark differences between fall and spring terms, likely because the data is not serious accounted for and leaves errors.

For each year, I averaged the faculty sizes of the reported fall and spring terms among the ABA data, excluding the Puerto Rico schools. Full-time faculty (including "others" before 2014) declined from 9,028 in 2011 to 7,932 in 2015, almost a 14% decline in four years. That is hardly surprising. Part-time faculty, including adjuncts, remained fairly flat, hovering around 9,100.

But "deans, librarians, and other who teach"? It's a somewhat nebulous category, identified by one recent ABA key as "law school administrators who teach at least half-time. Administrators who neither teach nor hold faculty rank are not included in these numbers. Administrators who teach are typically at the school and available to students during the entire year." It's this category that's seen a 16% increase, from 1,752 personnel in 2011 to 2,032 in 2015.

Averaged out, the typical law school has lost about five faculty in the last four years, but the typical law school has also gained a teaching administrator or two in that same period.

UPDATE: A few have wondered whether it's a terribly useful consideration as the category includes "librarians." True, but recall that the definition extends to "administrators who teach at least half-time." Librarians who do not teach at least half-time would not be included. But I suppose it's possible that one could conclude that there has been a surge in law librarians as part-time faculty in the last few years.

UPDATE: Several commenters have offered alternative inferences to be derived from the data. I encourage you to consider their thoughtful perspective.

Opinion piece at The Hill on why courts should stay out of Ted Cruz eligibility disputes

I have an opinion piece at The Hill, Courts should stay out of Cruz eligibility fight. It begins:

As controversy swirls over Sen. Ted Cruz’s (R-Texas) eligibility to be president of the United States, there is one body that should not resolve that controversy: the federal courts.

Cruz was born in Canada to a Cuban father and an American mother. Recent comments from Donald Trump and others have called into question whether he is a “natural born citizen,” a constitutionally required qualification. There are good reasons to believe that he is, but it is far from a settled question.

Trump has suggested that Cruz should ask a court to declare him eligible. Others, like Sen. John McCain (R-Ariz.) and Laurence Tribe, have emphasized that the Supreme Court has yet to offer a definitive answer on the issue.

But courts don’t have to hear such challenges. In fact, it’s probably best that they don’t. There are many other bodies capable of resolving this dispute without judicial involvement.

And it ends:

If states choose to pass laws calling for election officials to closely scrutinize a presidential candidate’s eligibility, and if states invite courts to participate in that process, they are likely within their rights to do so. But most states have understandably not done so. They have recognized that the decision best remains with the voters, presidential electors, and Congress. It should stay that way.

Reuters opinion on legal challenges to Ted Cruz's eligibility

I have an opinion piece at Reuters, Natural-born mess: What would it take to kick Ted Cruz off the ballot? It begins:

Donald Trump has resuscitated questions regarding Texas Senator Ted Cruz’s eligibility to serve as president of the United States. Cruz was born in Canada to a Cuban father and an American mother. A recent Trump tweet succinctly pressed the issue: “Sadly, there is no way that Ted Cruz can continue running in the Republican primary unless he can erase doubt on eligibility. Dems will sue.”

The U.S. Constitution requires that the president be a “natural-born citizen” of the United States. Though many contend that being born to an American mother is sufficient, others say only those born on U.S. soil are eligible.

What would a legal challenge to Cruz’s eligibility look like? It’s far more complicated than you might think because it depends on how each state handles his access to the ballot. New Hampshire’s Ballot Law Commission, for example, has already said that Cruz is eligible — at least until a court says otherwise.

New Hampshire Ballot Law Commission permits Ted Cruz to appear on the ballot

A few weeks ago, I blogged about a challenge in New Hampshire to Ted Cruz's eligibility to be president and appear on the primary ballot (among other challenges). The Ballot Law Commission ("BLC") heard the challenge and issued a written decision upholding the Secretary of State's decision to place Mr. Cruz on the ballot.

I had suggested that language in New Hampshire law precluded the BLC from hearing the challenge. Revised Statutes Annotated 655:47(III) provides, "The decision of the secretary of state as to the regularity of declarations of candidacy filed under this section shall be final." (That's the section regarding filing paperwork for president.)

The BLC rejected this interpretation: "The Commission, and the Secretary of State, interpret this statutory section to mean that the decision of the Secretary of State to accept nomination papers, as to their form, if in a different form than that provided by the Secretary of State, is final, but that the Commission has jurisdiction to hear challenges to filings accepted by the Secretary of State on other bases. The Commission has jurisdiction to hear filing disputes under RSA 665:7." And RSA 665:7 provides, "The ballot law commission shall hear and determine disputes arising over whether nomination papers or declarations of candidacy filed with the secretary of state conform with the law. The decision of the ballot law commission in such cases shall be final as to questions both of law and fact, and no court shall have jurisdiction to review such decision."

So, it appears that the BLC has no power to review the fairly ministerial task of the "regularity" of the filings, but has power to hear whether disputes "conform with the law," which it concludes has not been usurped by 655:47(III). It's one way of construing these provisions.

But this is also a rare time the BLC has been empowered with a post-"birther" law. Mr. Cruz, and all other candidates, signed a "declaration of candidacy" that provided "under penalties of perjury" that the candidate is "qualified to be a candidate for president of the United States pursuant to article II, section I, clause 4 of the United States Constitution, which states, 'No person except a natural born citizen . . . .'"

This law is relatively new to New Hampshire. In 2007, Sal Mohamed applied to appear on the ballot in the Democratic primary in New Hampshire. He wasn't an American citizen. He was removed from the ballot, but election officials conceded some ambiguity in the law as to whether state law required only eligible candidates to appear on the ballot and authorized such a removal.

About the same time, "birther" challenges to Barack Obama were appearing. Conspiracies challenged the claim that he was born in Hawaii.

A bill in New Hampshire in 2010 proposed requiring candidates to file a birth certificate with their applications to appear on the presidential primary ballot. That proposal was rejected, but then amended to include the declaration mentioned above. There were worries that this could repeat itself--testimony in a Senate committee mentioned a gorilla who had been listed on the primary ballot before.

This, then, is the provision the BLC construed. It had the precedent of a challenge to Mr. Obama's candidates in 2011, and it concluded that its jurisdiction would be limited: "Absent an obvious defect in the filing for office" the BLC is "limited to a review of the sufficiency of the filing of a candidate." The BLC found no obvious defect in Mr. Obama's filing. And for Mr. Cruz, there was "no obvious defect," and "nothing to dispute the reasonableness of the Secretary of State in accepting the filing."

The BLC went on to explain, "Clearly, there is no final decision on the meaning of 'natural born citizen,' and this Commission is not the appropriate forum for the determination of major Constitutional questions." (Of course, perhaps that's a good reason for it to reject any jurisdiction rather than simply accepting only obvious challenges--but perhaps that's a different point.)

And the BLC went on, "(That being said, the Commission notes that the appropriate raising in and deciding of this question by a court equipped to decide such Constitutional matters, so that all election officials and the American people know once and for all the definition of 'natural born citizen,' would be helpful in avoiding uncertainty.)"

Well, that creates several problems of its own. First, it assumes a court is the body that must handle such disputes. I've repeatedly suggested that many bodies other than courts can and do handle this question. Second, RSA 665:7 expressly precludes judicial review over the determinations of the BLC, including its determination, apparently, in this case on a constitutional question. If it had claimed it lacked jurisdiction, this provision precluding judicial review would not apply, and perhaps a New Hampshire state court could handle the review. Third, and perhaps most tellingly, it suggests that the simple hope of amending the law to keep non-citizens (or animals) off the ballot was too simple. Determining who decides, and how, are major questions that here remain unresolved.

In Scrutinizing Federal Electoral Qualifications, I suggest increased clarity of delineating responsibility as an optimal model:

[F]for state legislatures contemplating legislation to address this problem,
responses should come in the form of clarification rather than additional regulation. Given that voters, electors, and Congress already examine the qualifications of candidates, onerous state-based regulation is not necessary. New regulations should purge any investigation of congressional candidates, clarify whether election officials are given discretionary or ministerial duties, and, at most, include minimally intrusive declarations from candidates. Indeed, the legislature may want to consider the future implications of ceding additional investigatory authority to election officers

New Hampshire's review is surely just the first of many such challenges we can expect to Mr. Cruz's eligibility in 2016--and, to be sure, the first of many such challenges to many other candidates seeking third party or independent presidential bids.

Guest post at the Election Law Blog on Ted Cruz eligibility challenges

Over at the Election Law Blog, I have a guest post on the recent controversy over Ted Cruz's eligibility. It begins:

Earlier this week, Donald Trump suggested that Ted Cruz’s Canadian birthplace could be a problem in the event he became the Republican presidential nominee. He followed that up with a call for Mr. Cruz to seek a declaratory judgment in court that he is a “natural born Citizen” and eligible to serve as president.