This is the first in a series of posts about my forthcoming article, Scrutinizing Federal Electoral Qualifications, 90 Indiana Law Journal (forthcoming), available on SSRN. Comments, critiques, and feedback are welcome.
Senator Ted Cruz is an American. But he was born to a Cuban father and an American mother in Calgary, Alberta, Canada. He may run for president one day. But the office of president is limited to "natural born citizens." Is Mr. Cruz one?
Questions about the qualifications of presidential candidates are nothing new--but they certainly reached new frenzied heights as conspiracy theorists wondered whether Barack Obama was born in Indonesia or Kenya, and had manufactured a fraudulent (or concealed a nonexistent) Hawaiian birth certificate. They persisted for John McCain, too, as he was born in the American-controlled Panama Canal Zone. They lingered for Dick Cheney, who prior to moving to Wyoming resided in Texas, George W. Bush's home state, which would have precluded Texan presidential electors from voting for both candidates. And they've lingered for many other prospective candidates.
And although these election disputes seem like distant memories, they are still being litigated today--and their results could impact future hopefuls like Mr. Cruz. Indeed, the Alaska Supreme Court, in an unpublished decision Lamb v. Obama, and the Alabama Supreme Court, in McInnish v. Bennett, both addressed these issues in March; the Ninth Circuit heard oral argument in Peace & Freedom Party v. Bowen on these issues in February.
Litigants bring these questions on the merits. A candidate is included on the ballot whom a litigant believes is not qualified and should be excluded; or an election official excludes a candidate on the ballot because she believes the candidate is not qualified and the candidate sues to obtain ballot access. And most of the public debates on this issue arise on the merits of whether a candidate is or is not qualified.
But there is a predicate question: can the litigant even sue in court? This question is asked less regularly, but there are usually barriers to justiciability, particularly standing, in federal court, which means that courts often don't even answer the question on the merits.
But there's a predicate question even to this inquiry. What power do states have in evaluating the qualifications of candidates for federal office? And if they have power, where does it come from? If states have no power to evaluate qualifications for federal office, then courts need not even adjudicate these questions. In that sense, it may not "matter" whether Mr. Cruz is a "natural born citizen" for purposes of ballot access (sorry for the provocative headline); it may be simply a question reserved to other parties. Or, if states do have some power to scrutinize qualifications, is that a constitutional question or a statutory question? And what are the contours of their power?
My forthcoming article addresses these questions. Courts have been inconsistent in their approach. Sometimes, they refuse to answer the question and argue that scrutiny of qualifications is a question left to Congress or other political actors. At other times, they approve the inclusion or exclusion on the ballot, concluding that the state had the power to scrutinize qualifications.
I'll look at what qualifications are, and who has the power to examine qualifications for federal office--for Congress, and for president. I'll then figure out what role, if any, states have in scrutinizing those qualifications, and how courts should approach those questions of scrutiny.