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.)

Status of pending "natural born citizen" challenges and litigation in 2016 presidential election

This post will be a running aggregation of pending "natural born citizen" challenges in the 2016 presidential election. Please feel free to post updates in the comments about other pending challenges.

The bulk of challenges center around Senator Ted Cruz, born in Canada to a Cuban father an an American mother. There are other challenges (including those regarding Bobby Jindal, Marco Rubio, and Rick Santorum), but they are more obscure (indeed, Messrs. Jindal and Santorum have dropped out). Additionally, there are administrative challenges to candidates' eligibility to appear in a primary (e.g., whether Donald Trump is a "Republican" or whether Bernie Sanders is a "Democrat") or whether candidates have met the ballot access requirements (e.g., whether a candidate has met the requisite number of signatures to appear on the ballot). Those are not included below.

Please feel free to include updates or links in the comments below, or contact me via Twitter.

An * preceding the case means a final judgment has not yet been entered.

Board of Election or Secretary of State Administrative Challenges

Illinois, State Board of Elections (coverage here)

Joyce v. Cruz (160SOEBGP526), Graham v. Cruz (16SOEBGP527), Graham v. Rubio (16SOEBGP528): decision

Indiana, Election Commission

Carter v. Rubio (Cause 2016-2), Carter v. Cruz (Cause 2016-3), Kern v. Cruz (Cause 2016-4): decision permitting appearance on ballot, not yet available electronically, news story here

New Hampshire, Ballot Law Commission (coverage here and here)

Elliot v. Cruz, Booth v. Cruz (BLC 2015-2): decision

Laity v. Cruz, Laity v. Rubio (BLC 2015-4): decision

New Jersey

Williams v. Cruz (OAL STE 5016-16), Powers v. Cruz (OAL STE 5018-16): recommendation, adopted

New York, Board of Elections

Fischer v. Cruz, Gallo v. Cruz, Laity v. Cruz: not yet available electronically, news stories here and here; filing; decision permitting appearance on ballot (archived webcast)

Litigation

Federal

Green v. Cruz (N.D. Ala. 5:16-cv-207): complaint, amended complaint; dismissed without prejudice (May 10, 2016)

Librace v. Martin (E.D. Ark. 4:16-cv-57): complaint, dismissed (Feb. 29, 2016)

Booth v. Cruz (D.N.H. 15–cv–518): dismissed (Feb. 2, 2016)

Fischer v. Cruz (E.D.N.Y. 2:16-cv-01224): complaint, dismissed (Apr. 7, 2016)

Schwartz v. Cruz (S.D. Tex. 4:16-cv-00106): second amended complaint; dismissed (April 13, 2016); summarily affirmed (5th Cir. 16-20231)

Wagner v. Cruz (D. Utah 2:16-cv-00055): complaint , dismissed (Mar. 18, 2016); affirmed (10th Cir. 16-4044); petition for writ of ceriorari (15-1243), denied (May 31, 2016)

State

Voeltz v. Cruz (Broward County, Fla. Circuit Ct. CACE15022044): docket, dismissed (March 4, 2016)

Smallwood v. State (Hawaii Supreme Ct. SCEC–16–0000330): dismissed (Apr. 21, 2016)

Joyce v. Cruz (Illinois): not yet available electronically, news stories here and here, dismissed (Mar. 1, 2016)

Korman v. New York State Board of Elections (New York County, Supreme Ct. 100240/2016): memorandum of law; dismissed (Mar. 7, 2016); affirmed on appeal (Mar. 24, 2016); appeal denied (Mo. No. 2016-374, Apr. 1, 2016)

Laity v. New York (New York), dismissal affirmed on appeal (Aug. 10, 2017); petition for writ of certiorari filed, (No. 17-1007, Jan. 19, 2018)

Farrell v. Cruz (Pennsylvania): dismissed (Mar. 11, 2016), news stories here and here; appeals to Supreme Court (29 MAP 2016), affirmed (Mar. 31, 2016); petition for certiorari sub nom. Elliott v. Cruz (16-13),  denied (Oct. 3, 2016)

Paige v. Vermont (Washington Civil Div., Vt. Sup. Ct. 780-12-15 Wncv): complaint; dismissed (May 12, 2016); appeal to Supreme Court (2016-202), dismissed (June 16, 2017).

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.

Justice Sotomayor: "too many" states disenfranchise prisoners

In my quick thoughts on oral argument in Evenwel v. Abbott, my read of the PDF transcript missed this exchange, which I picked up listening to the audio this weekend:

MR. CONSOVOY: . . . The State can solve this problem themselves. These States can enfranchise these people and give them the vote. The States come here to say we do not want them to vote, but we want them to count for districting. That should be rejected by this Court.

Second--

JUSTICE SOTOMAYOR: That's not quite accurate. For--for most states, too many, they disenfranchise prisoners, except for those who come from that locale, which is quite rational. Most States disenfranchise the mentally ill. So how are they--who else are they going to disenfranchise.

It might be that Justice Sotomayor conflated "prison gerrymandering" (the practice of including prisoners in the district where they are imprisoned for purposes of determining the total population in a district, rather than deeming prisoners residents of where they last lived before being imprisoned) with felon disenfranchisement--that's the only way to make sense of the "except for those who come from that locale" remark. But the comment regarding "too many" states that disenfranchise "prisoners" (which, as I last checked, was every state except for Vermont and Maine), as opposed to ex-felons, stood out listening to oral argument.