Sexual misconduct, Senate precedent, and the Expulsion Clause

I recently wrote a piece at Law & Liberty on the Senate's power to expel Roy Moore in the event he wins the Alabama Senate special election. He has been accused of sexual misconduct, and calls for him to resign have not been heeded. Some have wondered about whether the Senate might refuse to seat him; I explain in the piece why that is inconsistent with the constitutional understanding set forth in Powell v. McCormack.

But what about the power to expel a member once seated? The Constitution says this:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.

I explain in the piece that there are few contours to the power to expel, except that it must occur by a two-thirds vote. That's mostly a procedural check, and the substance has largely been left to the Senate to flesh out. (Professor Brian Kalt shares similar thoughts in a Wall Street Journal opinion.)

I identify a couple of precedents that would limit the Senate's power to expel Mr. Moore. First, the Senate has typically wondered whether it has the power to expel members for conduct that arose prior to the candidate taking office. (Some earlier debates actually focused on whether it had to arise during that existing term in office and not from a preceding term, but recent Senate investigations have moved away from that view.) Second, the Senate has generally refused to expel a member for conduct known to the voters at the time of the election, the notion being that it's not for the Senate to expel a member with such baggange sent by the voters.

The Senate has not expelled a member since the Civil War, but it has investigated members who resigned before facing an expulsion vote, like Senator Bob Packwood in 1995.

New allegations have arise in recent weeks. Representative John Conyers and Senator Al Franken have been accused of sexual misconduct, and campaigns arose to urge their resignations.

Mr. Conyers heeded such calls this week and resigned, rather than face an ethics investigation and, perhaps, subsequent expulsion vote. His conduct arose during his terms in office (as he has been in the House for several decades).

Mr. Franken is facing new calls from a number of his fellow Senators to resign. Some allegations of his sexual misconduct arose from events prior to taking office, but certainly were not widely known to voters. He is also facing an ethics investigation.

It is worth noting how the rather underdefined precedents shaping Congress's practices under the Expulsion Clause may be experiencing a rather significant change right before our eyes. Ethics investigations and calls for resignation for (at least some) conduct arising prior to taking office suggest that a good number of Senators would apply the Clause in a way that the Senate has been reluctant to do in the past.

This is not to say that this is a wrong view, just to say that the Senate is, as is within its authority, deciding the proper scope of its authority under the Clause. It may be using informal means, like social media campaigns, political calls for resignations, and political party threats (perhaps offering primary challengers, withholding campaign funding, or revoking committee assignments), in ways that do not impact the Expulsion Clause.

But in the event Mr. Moore is seated, and the Senate begins to look at these recent precedents involving allegations of sexual misconduct prior to a candidate taking office, it may be moving toward a new understanding of its own power under the Clause.

That may not be the case, of course. Expulsion is an understandably extraordinary remedy, requiring significant consensus, and we have seen the Senate bluster recently and fail to carry through. These other tools at the disposal of the parties and the Senate may make the Senate reluctant to carry through with expulsion of Mr. Franken (if he does not resign in the next several hours) or Mr. Moore (if he is elected). But it is worth considering how recent weeks may be shaping, before our very eyes, a renewed attention to the Senate reconsidering its past practices and reinvigorating the Expulsion Clause.

Virgin Islands Supreme Court embroiled in another candidate qualifications disputes

A few year ago, I blogged about a rather extraordinary series of cases from the Virgin Islands concerning candidate qualifications. A candidate previously convicted of tax evasion was kept off the ballot by the Virgin Islands Supreme Court. A federal court ordered otherwise. The Virgin Islands Supreme Court ignored it.

A similar dispute has arisen recently. Kevin Rodriquez was elected to the legislature, but some claimed he was not a three-year resident of the Virgin Islands, which meant that he could not serve in the legislature. After litigation, the Virgin Islands Supreme Court ordered that he not be seated. The Third Circuit last week reversed. In doing so, it approvingly cited the power of the Board of Elections to judge qualifications before the election (a dubious proposition, as my earlier posts have noted).

The Vermont Supreme Court oral argument in Cruz and Rubio "natural born citizen" litigation

You may have long forgotten about the "natural born citizen" litigation in the 2016 presidential election, which I chronicled this spring. One can be forgiven, because, as hot as the topic was, Ted Cruz dropped out of the race, most cases disappeared, and little has been thought about the matter (much less about the even more tenuous and rare litigation surrounding Marco Rubio). My forthcoming Fordham Law Review piece chronicles the procedural paths these cases took, urging courts to exercise caution before needlessly plunging into disputes that the political process could readily solve, or areas where the state legislature failed to give them express jurisdiction.

Procedure took center stage in Vermont.

The plaintiff, H. Brooke Paige, was one of the first to file a claim challenging Messrs. Cruz's and Rubio's status as "natural born citizens." Mr. Paige filed pro se and sued both candidates and the state of Vermont. The case was dismissed. Mr. Paige appealed, again pro se. And the Vermont Supreme Court scheduled 30 minutes of oral argument for November 30, 2016. Messrs. Cruz and Rubio waived the opportunity to appear at oral argument. The oral argument has been uploaded.

The Vermont Supreme Court did care about procedural matters and asked Mr. Paige almost exclusively about those procedural points. First, as neither Messrs. Cruz nor Rubio were on the general election ballot, one justice wondered whether the dispute was moot--but Mr. Paige emphasized they were on the primary ballot. (Later analogies to abortion mootness exceptions arose.)

Another justice asked that the Constitution has a requirement as to who can serve as president; but does that extend the same as to who can run for president? Mr. Paige identified them as the same standard.

As to standing, Mr. Paige claimed he sought ballot access in Vermont.

The government opened with a mootness claim, which the Court challenged, but the government answered that while mootness could be an issue in election cases, it was not a problem in this case, where the plaintiff was responsible for many of the delays.

The government then noted the speculative future of the claim and the breadth of citizenship claims that might need to be raised. When the court later noted that its previous mootness case included the fact that Barack Obama was ineligible for another election, the government tried to raise the greater speculative nature of the political process. But the court pressed back that "capable of repetition yet evading review" inherently speculate about the future.

The court also mused that this exception often refers to the plaintiff's injury, as in the case with abortion cases; but, the court noted, if he has standing, what are the odds the plaintiff would face an election against someone born to foreign-born parents? That, the court said, might be a different case, as it seemed quite likely Mr. Paige would run again and face someone in that citizenship posture. But, another justice pressed back that it seemed like an advisory opinion, as it would be conditioned on "if" Mr. Rubio or someone else ran for office.

The court then asked about standing--a statute says that an election may be contested by any voter in the process. The government described the standing as something ministerial, such as the conduct of the election itself; or to matters like voter intimidation. But those are about the validity of the election, the government said, and the statute does not extend to challenges about qualifications.

The government moved back to the questions of Mr. Paige as a candidate challenging Messrs. Cruz and Rubio and argued that he was not truly a competitor in the election, such that he did not have standing.

The court started to worry about competitor standing--suppose Mr. Obama ran for governor in Vermont as a resident of Illinois? The government conceded that his general election opponent might have standing in that case.

All in all, the court muddled through a series of standing, mootness, and statutory issues, with virtually no time spent on the merits. It's unlikely we'll see any surprises... but only time will tell.

"Natural Born" Disputes in the 2016 Presidential Election

I've posted a draft of a new article, "Natural Born" Disputes in the 2016 Presidential Election, forthcoming in the Fordham Law Review. Here is the abstract:

The 2016 presidential election brought forth new disputes concerning the definition of a "natural born citizen." The most significant challenges surrounded the eligibility of Senator Ted Cruz, born in Canada to a Cuban father and an American mother. Administrative challenges and litigation in court revealed deficiencies in the procedures for handling such disputes. This paper exhaustively examines these challenges and identifies three significant complications arising out of these disputes.

First, agencies tasked with administering elections and reviewing challenges to candidate eligibility often construed their own jurisdiction broadly, but good reasons exist for construing such jurisdiction narrowly given ample political and legal opportunities to review candidates' qualifications. while litigation in federal court usually led to swift dismissal on a procedural ground, challenges in state proceedings sometimes led to broad—and incorrect—pronouncements about the power to scrutinize the eligibility of presidential candidates. Third, decision makers repeatedly mused about how useful it would be if the Supreme Court offered a clear definition of a "natural born citizen." This suggests that executive and judicial actors are uncomfortable with non-federal judicial resolution of a constitutional claim like this one.

Finally, this Article offers a recommendation. After three consecutive presidential election cycles with time-consuming and costly litigation, it may well be time to amend the Constitution and abolish the natural born citizen requirement. Amending the Constitution is admittedly no simple task. But perhaps an uncontroversial amendment would find broad support in order to avoid delays and legal challenges seen in recent presidential primaries and elections.

New Jersey administrative law judge perpetuates "natural born citizen" procedural errors

Today, a New Jersey administrative law judge found that Ted Cruz was eligible to appear on the New Jersey ballot because he is a "natural born citizen." (PDF of the opinion) In doing so, he made many of the same procedural errors raised in Pennsylvania, and he perpetuated errors in New Jersey about the proper authority to review such disputes.

First, the judge confused justiciability questions with the power of certain bodies to review qualifications. That is, while the Electoral College or Congress may have the power to review the qualifications of a presidential candidate, that is a distinction question from whether they have the sole power to review qualifications to the exclusion of a federal court such that the claim is nonjusticiable. In conflating these questions, the judge incorrectly described the roles of these bodies--just as the court in Pennsylvania did.

First, the judge said that the Electoral College "is not vested with the power to determine the eligibility of the Presidential candidate since it is only charged to select the candidate for each office and transmit its votes to the 'seat of government.'" What else does the power to "select" include if not the power to decide whether a candidate is eligibility? As I've mentioned, many electors refused to cast votes for Horace Greeley upon his death in 1876, because they believed he was no longer eligible for the office.

The judge goes on to note that Congress has "no power over this process," but it fails to cite to the Twentieth Amendment, which does give congress power to count ballots; its precedent in 1876 in refusing to count votes for Horace Greeley; and its practice in 2008 of endorsing that Senator McCain was, indeed, a "natural born citizen," presumably speaking in anticipation of its review of electoral votes.

These do not answer the question of whether there is a textually demonstrable commitment that these bodies decide the matter; indeed, I think the question is justiciable for a court. But it is different than saying these bodies lack power. As I mentioned earlier, New Jersey law does not contemplate that state courts or election administrators should weigh in on such matters.

Additionally, the judge never identifies what New Jersey law empowers it, or the Secretary of State, to scrutinize federal qualifications of presidential candidates. He generically refers to the fact that the Secretary must rule on the "validity" of objections to petitions, citing N.J.S.A. 19:13-11. But to assume that "validity" includes the power to decide whether a candidate meets the qualifications of the Constitution is another step, indeed.

While the court reached the result on the merits that I tend to agree with, these missteps in procedure are troublesome. They incentivize litigants to bring challenges when no law empowers election officials to scrutinize qualifications, and they diminish the role of other bodies in scrutinizing qualifications. Perhaps the Secretary of State will modify the opinion on review.

The birther legacy in New Jersey that may trip up Ted Cruz

In 2012, an administrative law judge in New Jersey, Jeff Masin, heard a challenge to Barack Obama's eligibility to appear on the New Jersey ballot in the Democratic primary. His opinion in Purpura v. Obama is fairly unremarkable. He explains that petitions to appear in a presidential primary do not include a requirement that candidate swears to his eligibility, and that Mr. Obama needed to provide no further documentation to the Secretary of State. (I've written extensively about the fact that many states understandably lack any mechanism to scrutinize qualifications.)

But there's a dangerously wrong legal conclusion floated in the opinion:

The nomination of any person to any public office may be challenged on the ground that the incumbent is not eligible for the office at the time of the election. N.J.S.A. 19:29-1.
...
In that case, once a petition is filed endorsing a person and that person has not filed his declination of such indorsement, a party believing that the indorsed individual is not qualified can file a challenge on the grounds of ineligibility.

That is not correct. But in a recent challenge to Ted Cruz's eligibility, this same judge has suggested that he has power to hear this dispute, despite misunderstanding the law.

(It's worth noting that this administrative law judge's decision is a recommendation sent along to the Secretary of State, which has the final decision in the matter.)

New Jersey law does provide, "The nomination or election of any person to any public office or party position, or the approval or disapproval of any public proposition, may be contested by the voters of this State . . . upon 1 or more of the following grounds:. . .  (b) When the incumbent was not eligible to office at the time of the election."

"At the time of the election" being the crucial term, of course. This is a post-election remedy; this is not a pre-election challenge. True, the preface mentions "nomination," but only certain subparts of the chapter relate to nominations (e.g., "(i) When a petition for nomination is not filed in good faith or the affidavit annexed thereto is false or defective"). This is reinforced by the fact that the statute defines "incumbent" as "the person whom the canvassers declare elected or the person who is declared elected as a result of a recount."

No New Jersey authority has power to pre-judge the qualifications for any office under this statute.

That said, Judge Masin sounded assured that he had power, according to one media report of his remarks at the April 11 hearing:

In the Obama case, the courts "affirmed my decision," rather than saying, "This is not something the courts can even discuss," Masin said.

It may be something courts can discuss, but it is not something courts can discuss in relation to a nomination petition. Instead, it is a post-election remedy.

Understandably, it is an even greater challenge for presidential primaries--the candidates are, strictly, speaking, delegates to the national convention; and independent state rules govern whether they are pledged to support that candidate or may freely vote for someone else (in the event they conclude that their preferred candidate is not eligible). It's a good reason why state legislatures may not want to give courts (or election administrators) the power to scrutinize qualifications of presidential candidates. And it's a good reason to construe such statutes carefully, if not narrowly.

Alas, it appears that this New Jersey administrative law judge may well view it as within his power to make such a decision--in contravention of state law, and in a way that may trip up Mr. Cruz.

Pennsylvania Supreme Court quickly dispatches of challenge to Cruz's eligibility

Last week I blogged about the expedited briefing in the Pennsylvania challenge to Ted Cruz's eligibility to appear on the ballot--and the wrong-headed reasoning of the district court's decision. Today, more than a week after briefing was completed, the Pennsylvania Supreme Court issued a brief per curiam opinion affirming the district court's order without reasons given. It's impossible to know whether it agrees with the district court's reasoning or simply affirmed the order on other grounds. Regardless, this maneuver avoids setting any ill-advised precedent on the scope of Pennsylvania ballot access disputes, and it effectively insulates the case from a certiorari grant to the United States Supreme Court (which would likely refuse to hear the case on the pragmatic reason that it lacks certainty about why the Pennsylvania Supreme Court did what it did and finds no other reason compelling it to weigh in, apart from any prudential or discretionary concerns that may incline it to reject the case).

Pennsylvania Supreme Court expedites hearing on spurious Cruz eligibility claim

Recently, a state court in Pennsylvania found that Ted Cruz is a natural born citizen and entitled to ballot access. The Pennsylvania Supreme Court has expediting briefing in the case. The docket reflects that the appellant has a couple of amicus briefs on his side: one by Einer Elhauge at Harvard Law, another by Mary Brigid McManamon at Widener Law.

I use the adjective "spurious" in the title of this post not because I believe that it's obvious that Mr. Cruz is a natural born citizen; indeed, I've conceded that the question is closer than one may expect, and I have my own inclinations, but I've found Michael Ramsey's perspective to be the most persuasive in concluding that he is eligible.

Instead, it is because there is simply no requirement under Pennsylvania law that a citizen be "eligible" to obtain ballot access. Indeed, the very opposite is true.

I've written, extensively, about this very basic error in these qualifications disputes. There is no free-standing ability for courts to scrutinize qualifications of candidates for president. Instead, it is reserved to the states to administer ballot access. States can decide whether to list a candidate, or not list a candidate. One must refer to state law. To be sure, there is a concern that a state may list a candidate ineligible for office--but there is no federal right to keep an unqualified candidate off the ballot. Instead, such decisions reside in state law.

This is in part because there are many who may evaluate the qualifications of a candidate--voters, being one of them! But presidential electors can also decide whether a candidate is eligible or not, and decide not to vote for him. Indeed, many (but not all!) decided that Horace Greeley was no longer eligible after he died in 1872 after the election and cast votes for others.

The state court in Pennsylvania was in grave error when it concluded otherwise: "the Constitution does not vest the Electoral College with power to determine the eligibility of aPresidential candidate since it only charges the members of the Electoral College to select acandidate for President and then transmit their votes to the nation's 'seat of government.'" What does the power to "select" mean if it does not include the discretion to decide whether someone is fit for office--including, whether someone is eligible for office?

And the Court was wrong to conclude that Congress lacks this power, too: "no Constitutional provision places such power in Congress to determine Presidential eligibility. Moreover, other than setting forth the bare argument, the Candidate offers no further support for the contrary proposition."

Well, apart from my Indiana Law Journal article extensively discussing this precise point, one could easily cite the instance of Congress refusing to count electoral votes cast for Horace Greeley in 1873 because it believed he was not eligible to serve as president; or Congress's resolution in 2008 decreeing that John McCain was a natural born citizen, presumably because it believed it had the power to scrutinize qualifications in its power, likely under the subsequent language of the Counting Clause of the Twentieth Amendment, at the very least.

But this is essentially because the Pennsylvania state court confused the political question doctrine--that a question is exclusively reserved to another branch--with this issue. That is, it may not be a political question; but, it is certainly the case that many other political actors hold the power simultaneously. That, I think, is good reason to give pause.

It is further reason to give pause when one consider whether any cause of action exists. After all, what right is there to remove someone from the ballot? That is an operation of state law--of state ballot access law, in particular. And Pennyslvania's election code and election practice expressly display how spurious this claim against Mr. Cruz is.

Many states, understandably, do not want to engage in much scrutinize of the qualifications for these offices--let voters, electors, and Congress sort it out, rather than election officials and courts. And Pennsylvania law expressly disclaims any requirement that presidential candidates declare they are eligible.

Consider Section 2870 of the election code: candidates for office typically must file a nomination petition with an affidavit stating "that he is eligible for such office." But the end of the section provides something quite contrary for presidential candidates: "In the case of a candidate for nomination as President of the United States, it shall not be necessary for such candidate to file the affidavit required in this section to be filed by candidates, but the post-office address of such candidate shall be stated in such nomination petition." (Emphasis added.)

Pennsylvania leaves it other actors--not election officials, and, by proxy, not courts reviewing the decisions of election officials--to scrutinize qualifications.

Historical practice supports this view. In 1972, for instance, Linda Jenness and Andrew Pulley, both under 35 years of age, appeared on the Pennsylvania ballot under the Socialist Workers Party presidential ticket. Pennsylvania recorded thousands of votes cast for them. Even though both were ineligible.

These nuanced points are often lost in these eligibility cases. The salacious story of the merits--born in Canada!--or the more routine standing doctrine issues often garner the greatest attention. But this claim has no merit simply because Pennsylvania law allows anyone on the ballot, without any scrutiny of qualifications. The question of eligibility is reserved to others in Pennsylvania--not election officials, and certainly not courts.