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.