Recent developments in 2016 presidential eligibility challenges, Part I

Since I've begun aggregating the status of challenges to presidential candidates' eligibility, media outlets and commentators have had a few impressions from such challenges, but a few points are in order.

First, filing a challenge or a lawsuit doesn't mean much, despite breathless media reports to the contrary. There were dozens of challenges to Barack Obama and John McCain; most when nowhere, and a few that went somewhere had no impact on the ballot. Many of these disputes will die rapidly--the plaintiff sued the wrong party; the plaintiff lacks standing; the plaintiff lacks a claim under state law; the plaintiff failed to serve notice on the proper parties. These are just a handful of the reasons most of these lawsuits will end rapidly. And even a court agreeing to "hold a hearing" doesn't mean much. I imagine most of these end with a whimper without coming close to addressing the merits of whether any candidate is a "natural born citizen."

Second, the key places to look at the moment are not in courts, but at the election commission. Last week, for instance, the Indiana Election Commission voted 3-1 to keep Ted Cruz's name on the ballot. It was a rather remarkable discussion. Indeed, it might have been an even closer vote, but one member who expressed deep skepticism ultimately voted to keep him on the ballot. Nonetheless, it was still a surprise (to me!) that one member of the Commission voted to keep him off the ballot. He remains on the ballot, of course--so no real, lasting harm.

Third, there has been a new interest in challenges to Marco Rubio's eligibility. Mr. Rubio was born in Florida to two Cubans residing in the United States. Most of the challenges aggregated above include challenges to Mr. Rubio as well, alleging that someone born on U.S. soil to two non-citizens is ineligible to serve as president. Virtually all commentary rejects this claim (only Mr. Cruz's eligiblity has invited meaningful commentary suggesting he is not eligible). Nevertheless, Donald Trump, who at one point firmly believed Mr. Rubio was eligible, raised doubts about eligibility. Whether it spurs more challenges is another matter.

Fourth, an independent candidate running for president, Terry Wayne Wheelock, had filed a motion to intervene in a federal lawsuit in Texas over Cruz's eligibility. A federal judge struck the motion for failure to state the grounds for intervening.

Finally, this week has a couple of matters pending.

Tuesday, February 23: the New York State Board of Elections will consider three eligibility challenges to Mr. Rubio and Mr. Cruz. There is a good chance all three will be tossed for procedural reasons--at least two were filed past the deadline; and there is a claim that New York law does not permit the board of elections to review qualifications, and certainly not of primary candidates.

Friday, February 26: a federal judge in Arkansas will decide whether the plaintiff in Librace v. Martin can file in forma pauperis. (The Arkansas Secretary of State has argued that the plaintiff has filed multiple frivolous election cases before.)