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.

Like New Hampshire, Illinois Electoral Board finds it has jurisdiction to review Ted Cruz's eligibility

Recently, the New Hampshire Ballot Law Commission concluded that it was statutorily authorized to hear a challenge to Ted Cruz's eligibility to appear on the ballot on the basis that he was not a "natural born citizen," and it concluded that he met that standard--or, at least, that there was no "obvious defect" calling for his removal.

Yesterday, the Illinois State Board of Elections heard a pair of challenges (PDF) to Mr. Cruz's eligibility., Joyce v. Cruz and Graham v. Cruz. (Mr. Graham also challenged Marco Rubio's eligibility.) A hearing officer concluded that the State Board of Elections had jurisdiction beyond simply ascertaining whether the paperwork complied with the Election Code, and did have the jurisdiction to review whether Mr. Cruz was a "natural born citizen." Further, it concluded that eligibility questions were appropriately within the scope of authority of the Electoral Board. Finally, it concluded that Mr. Cruz met the "natural born citizen" qualification. The Board adopted these findings.

Illinois law requires that candidates file a "Statement of Candidacy," including a statement that one is "qualified" for office. The Electoral Board is tasked with making sure that the papers are "valid" or in "proper form." Mr. Cruz contended that such power means that the Electoral Board lacks jurisdiction to hear a question regarding qualifications. The Board decided otherwise: "It is alleged that Ted Cruz is not legally qualified because he is not a natural born citizen. Thus, the Statement of Candidacy is properly before the Electoral Board to determine if the Candidate is a natural born citizen."

As I've written extensively, state agencies should be reluctant to assume such power absent rather clear authorization from the state legislature. But, like New Hampshire's election commission, this board assumed it did have the power.

Mr. Cruz also objected that the Electoral College, not a state agency, has the power to review qualifications. The Electoral Board rejected this argument, too. In the words of the Hearing Officer: "I disagree with the Candidate's assertion. The Statement of Candidacy is being questioned by the Objector. In order to determine the validity of the Statement of Candidacy, the threshold question of whether or not Ted Cruz is a natural born citizen must be addressed. Thus, the Electoral Board does have subject matter jurisdiction . . . ."

The Board went on to conclude that Mr. Cruz was eligible at birth.

Opinion piece at The Hill on why courts should stay out of Ted Cruz eligibility disputes

I have an opinion piece at The Hill, Courts should stay out of Cruz eligibility fight. It begins:

As controversy swirls over Sen. Ted Cruz’s (R-Texas) eligibility to be president of the United States, there is one body that should not resolve that controversy: the federal courts.

Cruz was born in Canada to a Cuban father and an American mother. Recent comments from Donald Trump and others have called into question whether he is a “natural born citizen,” a constitutionally required qualification. There are good reasons to believe that he is, but it is far from a settled question.

Trump has suggested that Cruz should ask a court to declare him eligible. Others, like Sen. John McCain (R-Ariz.) and Laurence Tribe, have emphasized that the Supreme Court has yet to offer a definitive answer on the issue.

But courts don’t have to hear such challenges. In fact, it’s probably best that they don’t. There are many other bodies capable of resolving this dispute without judicial involvement.

And it ends:

If states choose to pass laws calling for election officials to closely scrutinize a presidential candidate’s eligibility, and if states invite courts to participate in that process, they are likely within their rights to do so. But most states have understandably not done so. They have recognized that the decision best remains with the voters, presidential electors, and Congress. It should stay that way.

Reuters opinion on legal challenges to Ted Cruz's eligibility

I have an opinion piece at Reuters, Natural-born mess: What would it take to kick Ted Cruz off the ballot? It begins:

Donald Trump has resuscitated questions regarding Texas Senator Ted Cruz’s eligibility to serve as president of the United States. Cruz was born in Canada to a Cuban father and an American mother. A recent Trump tweet succinctly pressed the issue: “Sadly, there is no way that Ted Cruz can continue running in the Republican primary unless he can erase doubt on eligibility. Dems will sue.”

The U.S. Constitution requires that the president be a “natural-born citizen” of the United States. Though many contend that being born to an American mother is sufficient, others say only those born on U.S. soil are eligible.

What would a legal challenge to Cruz’s eligibility look like? It’s far more complicated than you might think because it depends on how each state handles his access to the ballot. New Hampshire’s Ballot Law Commission, for example, has already said that Cruz is eligible — at least until a court says otherwise.

New Hampshire Ballot Law Commission permits Ted Cruz to appear on the ballot

A few weeks ago, I blogged about a challenge in New Hampshire to Ted Cruz's eligibility to be president and appear on the primary ballot (among other challenges). The Ballot Law Commission ("BLC") heard the challenge and issued a written decision upholding the Secretary of State's decision to place Mr. Cruz on the ballot.

I had suggested that language in New Hampshire law precluded the BLC from hearing the challenge. Revised Statutes Annotated 655:47(III) provides, "The decision of the secretary of state as to the regularity of declarations of candidacy filed under this section shall be final." (That's the section regarding filing paperwork for president.)

The BLC rejected this interpretation: "The Commission, and the Secretary of State, interpret this statutory section to mean that the decision of the Secretary of State to accept nomination papers, as to their form, if in a different form than that provided by the Secretary of State, is final, but that the Commission has jurisdiction to hear challenges to filings accepted by the Secretary of State on other bases. The Commission has jurisdiction to hear filing disputes under RSA 665:7." And RSA 665:7 provides, "The ballot law commission shall hear and determine disputes arising over whether nomination papers or declarations of candidacy filed with the secretary of state conform with the law. The decision of the ballot law commission in such cases shall be final as to questions both of law and fact, and no court shall have jurisdiction to review such decision."

So, it appears that the BLC has no power to review the fairly ministerial task of the "regularity" of the filings, but has power to hear whether disputes "conform with the law," which it concludes has not been usurped by 655:47(III). It's one way of construing these provisions.

But this is also a rare time the BLC has been empowered with a post-"birther" law. Mr. Cruz, and all other candidates, signed a "declaration of candidacy" that provided "under penalties of perjury" that the candidate is "qualified to be a candidate for president of the United States pursuant to article II, section I, clause 4 of the United States Constitution, which states, 'No person except a natural born citizen . . . .'"

This law is relatively new to New Hampshire. In 2007, Sal Mohamed applied to appear on the ballot in the Democratic primary in New Hampshire. He wasn't an American citizen. He was removed from the ballot, but election officials conceded some ambiguity in the law as to whether state law required only eligible candidates to appear on the ballot and authorized such a removal.

About the same time, "birther" challenges to Barack Obama were appearing. Conspiracies challenged the claim that he was born in Hawaii.

A bill in New Hampshire in 2010 proposed requiring candidates to file a birth certificate with their applications to appear on the presidential primary ballot. That proposal was rejected, but then amended to include the declaration mentioned above. There were worries that this could repeat itself--testimony in a Senate committee mentioned a gorilla who had been listed on the primary ballot before.

This, then, is the provision the BLC construed. It had the precedent of a challenge to Mr. Obama's candidates in 2011, and it concluded that its jurisdiction would be limited: "Absent an obvious defect in the filing for office" the BLC is "limited to a review of the sufficiency of the filing of a candidate." The BLC found no obvious defect in Mr. Obama's filing. And for Mr. Cruz, there was "no obvious defect," and "nothing to dispute the reasonableness of the Secretary of State in accepting the filing."

The BLC went on to explain, "Clearly, there is no final decision on the meaning of 'natural born citizen,' and this Commission is not the appropriate forum for the determination of major Constitutional questions." (Of course, perhaps that's a good reason for it to reject any jurisdiction rather than simply accepting only obvious challenges--but perhaps that's a different point.)

And the BLC went on, "(That being said, the Commission notes that the appropriate raising in and deciding of this question by a court equipped to decide such Constitutional matters, so that all election officials and the American people know once and for all the definition of 'natural born citizen,' would be helpful in avoiding uncertainty.)"

Well, that creates several problems of its own. First, it assumes a court is the body that must handle such disputes. I've repeatedly suggested that many bodies other than courts can and do handle this question. Second, RSA 665:7 expressly precludes judicial review over the determinations of the BLC, including its determination, apparently, in this case on a constitutional question. If it had claimed it lacked jurisdiction, this provision precluding judicial review would not apply, and perhaps a New Hampshire state court could handle the review. Third, and perhaps most tellingly, it suggests that the simple hope of amending the law to keep non-citizens (or animals) off the ballot was too simple. Determining who decides, and how, are major questions that here remain unresolved.

In Scrutinizing Federal Electoral Qualifications, I suggest increased clarity of delineating responsibility as an optimal model:

[F]for state legislatures contemplating legislation to address this problem,
responses should come in the form of clarification rather than additional regulation. Given that voters, electors, and Congress already examine the qualifications of candidates, onerous state-based regulation is not necessary. New regulations should purge any investigation of congressional candidates, clarify whether election officials are given discretionary or ministerial duties, and, at most, include minimally intrusive declarations from candidates. Indeed, the legislature may want to consider the future implications of ceding additional investigatory authority to election officers

New Hampshire's review is surely just the first of many such challenges we can expect to Mr. Cruz's eligibility in 2016--and, to be sure, the first of many such challenges to many other candidates seeking third party or independent presidential bids.

Guest post at the Election Law Blog on Ted Cruz eligibility challenges

Over at the Election Law Blog, I have a guest post on the recent controversy over Ted Cruz's eligibility. It begins:

Earlier this week, Donald Trump suggested that Ted Cruz’s Canadian birthplace could be a problem in the event he became the Republican presidential nominee. He followed that up with a call for Mr. Cruz to seek a declaratory judgment in court that he is a “natural born Citizen” and eligible to serve as president.