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.

How does Congress evaluate the qualifications of federal candidates?

This is the second 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.

I asked whether states have the power to evaluate qualifications of candidates for federal office. Before asking whether they have that power, however, it's useful to consider how Congress evaluates candidates.

Congress has a robust power to evaluate the qualifications of its own members. Cases like Powell v. McCormack assure Congress that, as long as it is evaluating the constitutional qualifications of its members and not adding to them, it has broad--even exclusive--power to evaluate qualifications. There is a long history of Congress making judgments, such as deferring on an underage candidate until the candidate comes of age, or investigating the length of time the candidate has been a citizen.

The power of Congress to evaluate presidential and vice-presidential candidates is less clear. Congress itself has debated whether it could review the votes cast by electors. Some have argued that Congress's sole role is ministerial; it only has the power to add up the electors' votes, and the electors judge qualifications. The only time Congress has actually declined to count votes cast by electors took place in 1872, when it declined to count three votes cast for the deceased vice-presidential candidate Horace Greeley. But Congress has at other times assumed it has that power; consider the Senate's 2008 resolution reflecting the sense of the Senate that John McCain is a natural born citizen, which apparently reflected its intent to count electoral votes for Mr. McCain because he was qualified.

Scrutiny of qualifications differs because of the context. For the legislature, there was a deep concern that intermediary parties would interfere, so the power was great, and essentially exclusive. For the executive, however, the power to scrutinize qualifications is not immediately clear from the text of the Constitution. As the primary responsibility for the selection of the executive resides in several other parties--the electors themselves; the state legislatures, which are given the task of selecting the manner of appointment of electors; and the voters, given the power by the state legislature to select electors. The uncertainty over Congress's power to scrutinize qualifications reflects the possibility that such power might reside elsewhere--and perhaps in the state legislatures themselves.

Does it even matter if Ted Cruz is a "natural born citizen"?

This is the first 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 Ted Cruz is an American. But he was born to a Cuban father and an American mother in Calgary, Alberta, Canada. He may run for president one day. But the office of president is limited to "natural born citizens." Is Mr. Cruz one?

Questions about the qualifications of presidential candidates are nothing new--but they certainly reached new frenzied heights as conspiracy theorists wondered whether Barack Obama was born in Indonesia or Kenya, and had manufactured a fraudulent (or concealed a nonexistent) Hawaiian birth certificate. They persisted for John McCain, too, as he was born in the American-controlled Panama Canal Zone. They lingered for Dick Cheney, who prior to moving to Wyoming resided in Texas, George W. Bush's home state, which would have precluded Texan presidential electors from voting for both candidates. And they've lingered for many other prospective candidates.

And although these election disputes seem like distant memories, they are still being litigated today--and their results could impact future hopefuls like Mr. Cruz. Indeed, the Alaska Supreme Court, in an unpublished decision Lamb v. Obama, and the Alabama Supreme Court, in McInnish v. Bennett, both addressed these issues in March; the Ninth Circuit heard oral argument in Peace & Freedom Party v. Bowen on these issues in February.

Litigants bring these questions on the merits. A candidate is included on the ballot whom a litigant believes is not qualified and should be excluded; or an election official excludes a candidate on the ballot because she believes the candidate is not qualified and the candidate sues to obtain ballot access. And most of the public debates on this issue arise on the merits of whether a candidate is or is not qualified.

But there is a predicate question: can the litigant even sue in court? This question is asked less regularly, but there are usually barriers to justiciability, particularly standing, in federal court, which means that courts often don't even answer the question on the merits.

But there's a predicate question even to this inquiry. What power do states have in evaluating the qualifications of candidates for federal office? And if they have power, where does it come from? If states have no power to evaluate qualifications for federal office, then courts need not even adjudicate these questions. In that sense, it may not "matter" whether Mr. Cruz is a "natural born citizen" for purposes of ballot access (sorry for the provocative headline); it may be simply a question reserved to other parties. Or, if states do have some power to scrutinize qualifications, is that a constitutional question or a statutory question? And what are the contours of their power?

My forthcoming article addresses these questions. Courts have been inconsistent in their approach. Sometimes, they refuse to answer the question and argue that scrutiny of qualifications is a question left to Congress or other political actors. At other times, they approve the inclusion or exclusion on the ballot, concluding that the state had the power to scrutinize qualifications.

I'll look at what qualifications are, and who has the power to examine qualifications for federal office--for Congress, and for president. I'll then figure out what role, if any, states have in scrutinizing those qualifications, and how courts should approach those questions of scrutiny.

Can Floridians recall Senator Marco Rubio?

Some Florida conservatives want to recall Senator Marco Rubio because of his support for a proposed immigration law. Florida currently lacks a recall mechanism for United States senators in its law, so a law would need to be enacted. But can Florida enact such a law?

Probably not. 

The major case in this area is Committee to Recall Robert Menendez from the Office of U.S. Senator v. Wells  in New Jersey in 2010.  The New Jersey Supreme Court concluded by a 4-2 margin that a recall was an additional qualification to the office of a United State senator, and, as additional qualifications are prohibited, the recall mechanism must fail.

While the New Jersey Supreme Court has not been a model of fidelity to legal texts in the election law context, it relies primarily on the broad pronouncements from the United States Supreme Court in Powell v. McCormack  (refusal to seat a member for his involvement in a scandal) and U.S. Term Limits v. Thornton  (refusal to list a candidate for office after the candidate met a term limit). It's possible that the Court might view those cases as different in kind from a recall mechanism after an individual has been elected and seated (there were, after all, dissenting justices in U.S. Term Limits ), but there's no guarantee.

Regardless, there's also the prior question of whether a recall could even appear on the ballot. Some state judiciaries reserve judgment on the constitutionality of ballot initiatives (in this case, it would be a recall mechanism) until after it passes: it's an element of judicial restraint, as the political process may work itself out and render the need for judicial involvement moot; and it allows an expression of democracy to occur at the polling place even if the matter is unconstitutional. But other state judiciaries recognize the cost and political uncertainty of such matters and allow for a prior adjudication.

Florida tends to have a middle ground on this issue:

If a proposed amendment to the state Constitution by its terms specifically and necessarily violates a command or limitation of the Federal Constitution, a ministerial duty of an administrative officer, that is a part of the prescribed legal procedure for submitting such proposed amendment  to the electorate of the state for adoption or rejection, may be enjoined at the suit of proper parties in order to avoid the expense of submission, when the amendment, if adopted, would palpably violate the paramount law and would inevitably be futile and nugatory and incapable of being made operative under any conditions or circumstances. But if a duly proposed amendment to the Constitution may, if adopted, conceivably be valid in part or as applied to some conditions, its submission to the voters should not be enjoined, because in such a case the State has a right to the submission and, if it is adopted, to the operation of the amendment as far as it may legally be made effective. 

If it is not clearly shown that by its terms the proposed amendment to the state Constitution, as an entirety, expressly and specifically violates some command or limitation of the Federal Constitution so as to render it wholly void, or that the proposed amendment is otherwise wholly incapable of operation, its submission to the electorate of the state for adoption or rejection as required by the Constitution should not be enjoined. even though, if adopted, it may in appropriate procedure by proper parties, allegations of facts, and proof or admissions, be shown that the amendment violates paramount federal law and is therefore inoperative to the extent that it is duly shown to be invalid. 

Gray v. Winthrop, 156 So. 270, 272 (Fla. 1934).

In short, Florida cours refused to enjoin ballot measures that are not invalid in their entirety; but if the measure would "necessarily violate[]" the federal Constitution, it would enjoin it.

That means that if the recall mechanism is unconstitutional (and it may be), a Florida court may enjoin it from appearing on the ballot. While other states may allow voters to recall a senator, then invalidate the recall after the election, it seems like that Florida would act before the election.

Of course, the Florida courts may reach a different conclusion than the New Jersey courts and find the recall constitutional, which would set up a case before the United States Supreme Court. 

But for supporters of a recall mechanism who want to get Florida to enact such a law in the first place, it's useful to recognize the substantial likelihood that even a successful recall effort would find trouble ahead.