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.

Is the Green Party's vice presidential nominee Ajamu Baraka ineligible for office?

Perhaps you thought the constitutional eligibility concerns for 2016 had reached their end (and you'd no longer have any reason to read my article on the process behind challenges over such disputes), but perhaps they continue....

Jill Stein, the presumptive Green Party nominee, just named her vice presidential running mate--Ajamu Baraka, a Chicago native and human rights activist who now lives in Atlanta.

But quite recently, Mr. Baraka lived in Colombia. A 2015 blog entry on his site describes him as someone who lives in Cali, Colombia. And other media mentions around that time mention him as someone from Colombia.

The eligibility concern relates his residency at that time. (Recall that vice presidents must not be ineligible for the office of president.) Article II provides among other qualifications that a candidate must be "fourteen Years a resident within the United States."

There is some evidence, but certainly not unanimous, that these fourteen years must be accumulated consecutively prior to securing office. But there is some evidence that the requirement can be met cumulatively, over the total course of one's life prior to securing the office.

Additionally, there is the question of what "resident" means. Does living for a stretch of time in Colombia mean one is no longer a "resident" of the United States? It may well mean something like domicile, and a temporary, even extended, presence in another country would not thwart such residency. (James Ho succinctly summarizes some of these views here.)

In short, there is probably good evidence that Mr. Baraka was a resident fourteen years consecutively, and even if he wasn't, that the Constitution permits such residence to be acquired cumulatively. But in the event one concludes that the Constitution requires consecutive residency and that his time in Colombia broke up that residency, then Mr. Baraka would be ineligible.

That might lead to interesting disputes in the event someone sought to challenge Mr. Baraka to keep him--and half of the Green Party's ticket--off the ballot in states that permitted such challenges. Might--one never knows where such challenges to candidate eligibility may lead.

Recent developments in 2016 presidential eligibility challenges, Part II

For aggregation of coverage, see here.

Last week, the New York State Board of Elections concluded that it lacked jurisdiction to review any challenges to Ted Cruz's qualifications. This should come as little surprise. New York has long viewed its role in ballot access disputes regarding federal qualifications as purely ministerial. After all, Roger Calero, a non-citizen (indeed, a Nicaraguan citizen), has appeared on the presidential ballot multiple times in New York. (The archived webcast is available here.)

Additionally, a new challenge was filed in Pennsylvania state court last week.

Today, a federal judge dismissed a complaint filed in the Eastern District of Arkansas against Mr. Cruz and Marco Rubio. The court found that the voter who filed the suit lacked standing and that voters generally lack standing in such disputes.

Finally, this week has a couple of matters pending.

Tuesday, March 1: a Cook County, Illinois judge will continue an earlier hearing regarding the status of a lawsuit that appealed the decision of the state board of elections to permit Mr. Cruz's name on the ballot. The state court judge had appeared inclined to throw out the lawsuit on procedural grounds.

Thursday, March 3: an Albany, New York judge will hear a challenge regarding eligibility. (UPDATE: The hearing was moved from Tuesday to Thursday.)

Friday, March 4: a Broward County, Florida judge will hold a hearing regarding Messrs. Cruz's and Rubio's motions to dismiss.

Earlier coverage:

Part I

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.)

Scholarship highlight: Katyal & Clement, On the Meaning of Natural Born Citizen

Former Solicitors General Neal Katyal and Paul Clement have this commentary in the Harvard Law Review Forum, On the Meaning of "Natural Born Citizen." It opens:

We have both had the privilege of heading the Office of the Solicitor General during different administrations. We may have different ideas about the ideal candidate in the next presidential election, but we agree on one important principle: voters should be able to choose from all constitutionally eligible candidates, free from spurious arguments that a U.S. citizen at birth is somehow not constitutionally eligible to serve as President simply because he was delivered at a hospital abroad.

The article nicely summarizes the reasons in defense of this interpretation (specifically and especially the Ted Cruz question). It also nicely follows my recent piece examining the antecedent question, whether States have any independent power to evaluate qualifications for federal office. (Download on SSRN for the details!)

Why Kentucky may bar Rand Paul from running for president and the Senate simultaneously

This is the fourth 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 Rand Paul may want to run for President of the United States in 2016. But he is also very likely interested in running for the United States Senate in 2016, too--just in case the president thing doesn't work out for him. But his home state of Kentucky has a law that prohibits him from running for both offices at the same time--a law of some difficulty for the potential Paul campaign. Is it constitutional?

Drawing upon my earlier analyses, the answer is yes--because it is a condition on running for president, and not a condition on running for Senate.

Kentucky cannot add to the qualifications to candidates for office in the Senate. That much is obvious from the Supreme Court's decision in U.S. Term Limits v. Thornton. It could not condition running for Senate on refusing to run for president.

One might argue that this is merely a ballot access rule. After all, Mr. Paul could not run for the Senate unless he filed paperwork, or obtained a certain number of signatures to get on the ballot or won a qualifying primary election, or something like that. The line occasionally blurs. "Sore loser" laws--laws that prohibit candidates who lose a primary election from running for federal office in the general election--have been held as permissible regulations, not additional qualifications. "Resign to run" statutes--laws that require a state official to resign office before running for federal office--have been upheld as restrictions on conditions on state offices, not as additional qualifications for federal office. Perhaps it's the case that the state has a more permissive regulatory interest in making sure someone is not running for two offices when he can only fill one. But that's a nuanced claim, and one that, I think, would take time before I felt comfortable settling on one side.

But the other side is different--a condition on running for President might be that one cannot also be on the ballot for the Senate.

Under the Constitution, the state legislature may direct the "manner" of selecting presidential electors. It may select electors itself, or it may permit the people to vote. But, perhaps, it may cabin the discretion of the people in how they vote--perhaps by excluding certain candidates it does not wish the people to vote for. Akhil Amar, for instance, in his book America's Unwritten Constitution, posits that prior to the Nineteenth Amendment, which guaranteed women the right to vote, states could have excluded women from running for the office of president--but that the "unwritten" Nineteenth Amendment now would prohibit.

It might be, then, that U.S. Term Limits does not extend to presidential candidates. Indeed, the state is only selecting the manner of appointing presidential electors; how those presidential electors act is another level of review. It might simply prohibit a candidate's name from being listed on the ballot, but, in the case of presidential elections, the final decision is left with the presidential electors. And Kentucky has no law (that I found) that would require electors to vote for the named candidates. In a sense, then, the candidates names on the ballot are mere proxies for a slate of presidential electors and, perhaps, the state legislatures possess the latitude to decide how to condition the appearance of candidates of the ballot.

The best possible defenses of the law, then, are that it is a reasonable ballot access provision, not a "qualification"; and, further, even in the event it is something closer to a "qualification," it is within the discretion of the legislature to decide the manner of the selection of presidential electors, and that may include cabining the discretion of the voters with a requirement that a candidate for President cannot be listed for another office.

But, it's a heavily gray area without obvious answers. We'll see if the Kentucky legislature arises at a novel solution to avoid a judicial intervention into this political thicket.

What Chief Judge Kozinski got (mostly) right in a presidential qualification case

This is the third 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.

After identifying the problem of evaluating federal qualifications and examining Congress's role in the process, what's left for states to do? Enter the case of Peta Lindsay.

In 2012, she was 27 years old. She sought the nomination from the Peace and Freedom Party to run for president. California discovered that she was not eligible and excluded her from the ballot. The Ninth Circuit, in an opinion by Chief Judge Kozinski, found today that she could be excluded from the ballot. (The PDF of the opinion is here.)

The opinion is mostly right in this regard: assuming the power for a state to exclude a candidate from the ballot exists, what standard applies to reviewing that power? The First Amendment doesn't really guarantee you a slot on the ballot if you're not eligible; the Equal Protection Clause can't really help if there's a meaningful basis to distinguish between eligible and ineligible candidates, which the Constitution clearly anticipates; and the Twentieth Amendment does not demand that the Constitution vests exclusive authority to resolve presidential disputes (alluded to earlier here).

But, that all makes two important assumptions: the state does have the power to exclude a candidate from the ballot, and it has done so in this case.

As to the first, the question is more direct. The state legislature may "direct" the "manner" of appointment of electors. It may certainly decide to restrict the appointment of electors to only "eligible" candidates, and it may channel that decision-making process accordingly. The power given to Congress is not absolute (which, the Ninth Circuit emphasized, is emphatically the case with the Twentieth Amendment claim). In fact, as the selection of presidential electors is reserved to state legislatures, there is an even greater case that the power remains in the states.

As to the second, the question is more complicated. What state statute authorizes the Secretary of State to make inquiries into the eligibility of candidates? The closest statute the California Secretary of State cited was California Government Code § 12172.5, which provides,

(a) . . . The Secretary of State shall see that elections are efficiently conducted and that state election laws are enforced. The Secretary of State may require elections officers to make reports concerning elections in their jurisdictions.

...

(d) The Secretary of State may adopt regulations to assure the uniform application and administration of state election laws.

That's hardly the stuff of a directive from the state legislature to the elections officer to evaluate a candidate's qualifications.

That's not to say that it's unprecedented: in Cleaver v. Jordan, a 1968 dispute (discussed in a 2010 dispute, Keyes v. Bowen), California courts allowed the Secretary of State to exclude a thirty-three-year-old presidential candidate from the ballot.

But it is to say that courts--particularly federal courts--should be careful in treading upon the state legislature's directives to its executive officers as to how to conduct presidential elections. There was some discussion about the interpretation of the state statute at oral argument, but that all disappeared in the Ninth Circuit's opinion.

The only suggestion otherwise took place on reference to California Election Code § 6720, which says that a candidate "shall" be placed when she is one advocated for office under the Peace and Freedom Party. The court flatly rejects any exercise of supplemental jurisdiction over this issue, noting, "it has no bearing on this lawsuit, which is based entirely on federal law."

And perhaps that is the right outcome, to a point. States are left with administering the presidential ballot; it is left to state courts to wrestle with the interpretations of state laws. But even then, a court must still assume that the state is vested with the power to exclude; it is no answer to point to another provision that might compel a place on the ballot and kick that issue back to a state.

It is on this, then, that the Ninth Circuit got the Peta Lindsay dispute (mostly) right. But this assumption of the power of states to evaluate the qualifications presidential candidates remains, again, unaddressed, and merely assumed, in a judicial opinion--and it's an assumption my latest Article seeks to highlight.