New Jersey administrative law judge perpetuates "natural born citizen" procedural errors

Today, a New Jersey administrative law judge found that Ted Cruz was eligible to appear on the New Jersey ballot because he is a "natural born citizen." (PDF of the opinion) In doing so, he made many of the same procedural errors raised in Pennsylvania, and he perpetuated errors in New Jersey about the proper authority to review such disputes.

First, the judge confused justiciability questions with the power of certain bodies to review qualifications. That is, while the Electoral College or Congress may have the power to review the qualifications of a presidential candidate, that is a distinction question from whether they have the sole power to review qualifications to the exclusion of a federal court such that the claim is nonjusticiable. In conflating these questions, the judge incorrectly described the roles of these bodies--just as the court in Pennsylvania did.

First, the judge said that the Electoral College "is not vested with the power to determine the eligibility of the Presidential candidate since it is only charged to select the candidate for each office and transmit its votes to the 'seat of government.'" What else does the power to "select" include if not the power to decide whether a candidate is eligibility? As I've mentioned, many electors refused to cast votes for Horace Greeley upon his death in 1876, because they believed he was no longer eligible for the office.

The judge goes on to note that Congress has "no power over this process," but it fails to cite to the Twentieth Amendment, which does give congress power to count ballots; its precedent in 1876 in refusing to count votes for Horace Greeley; and its practice in 2008 of endorsing that Senator McCain was, indeed, a "natural born citizen," presumably speaking in anticipation of its review of electoral votes.

These do not answer the question of whether there is a textually demonstrable commitment that these bodies decide the matter; indeed, I think the question is justiciable for a court. But it is different than saying these bodies lack power. As I mentioned earlier, New Jersey law does not contemplate that state courts or election administrators should weigh in on such matters.

Additionally, the judge never identifies what New Jersey law empowers it, or the Secretary of State, to scrutinize federal qualifications of presidential candidates. He generically refers to the fact that the Secretary must rule on the "validity" of objections to petitions, citing N.J.S.A. 19:13-11. But to assume that "validity" includes the power to decide whether a candidate meets the qualifications of the Constitution is another step, indeed.

While the court reached the result on the merits that I tend to agree with, these missteps in procedure are troublesome. They incentivize litigants to bring challenges when no law empowers election officials to scrutinize qualifications, and they diminish the role of other bodies in scrutinizing qualifications. Perhaps the Secretary of State will modify the opinion on review.

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.

Will states like California lower their bar standards to help schools comply with new ABA mandate?

Unintended consequences are common. One develops a great idea; it takes form; it is discussed and debated; and, finally, it takes effect. But it may result in unintended consequences, it's always been fascinating to think about those unintended consequences. I've extensively discussed unintended consequences of matters such as LSAT administration, accommodated LSAT test-taking, and distortions in law school admissions.

The American Bar Association has moved closer to approving a new accreditation standard. At least 75 of law graduates from an institution must pass the bar exam within two years. It is a much simpler rule than the previous standard, and it holds schools to a higher standard.

Might there be unintended consequences? Many schools right now currently fail that standard. Professor Brian Leiter rightly wonders if schools will focus more on bar prep than other aspects of legal education. It is also likely that many schools will seriously reconsider their class sizes, admissions standards, academic dismissal rates, and transfer students.

But it's also worth noting that not all state bar exams are created equal. Perhaps nothing makes that point so clearly as looking at the passing scores required for the Uniform Bar Exam, a standardized bar exam with a single score, and varying scores required for admission in different states. A 260 will pass in Minnesota or Alabama, while a 280 is required to pass in Alaska or Idaho. My colleague Rob Anderson has identified the varying degrees of difficulty of many states' bar exams. And California is at the top--I've identified how California bar test-takers are more capable than test-takers in other states, but they fail at higher rates because of the difficulty of the bar.

So take a state like California. It is very likely that a number of schools will face serious difficulty meeting this standard--the first time rates for many schools are well below 50%, much less 75%, and even students who retake the test may make it a challenge for the total to pass the 75% threshold.

Some schools may begin to "export" students to jurisdictions with easier exams and higher pass rates--perhaps incentivizing them with stipends on the condition they take the exam in an easier jurisdiction.

But that's a potential unintended consequence that is school-centered. Might there be bar-centered consequences?

Suppose the state bar of California suddenly finds that four or five of its law schools are at risk of losing ABA accreditation. While some may praise that outcome, it's not clear that the state bar would do so. It might be inclined to lower its standards to increase pass rates (more in line with other states) and keep its schools in the ABA's good graces. Other states with particularly difficult bar exams, or with law schools that have significant political clout, may do the same.

Of course, this is speculative. And I make no claim as to whether such decisions would be good or bad--one could think some state bars are too difficult and that the pass rates should be increased, or one could think that the bar should not lower its standards. Instead, it's simply to identify some of the potential consequences that may come about from proposals like this. Only time will tell whether such consequences actually arise.

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).

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.