Recently, the New Hampshire Ballot Law Commission announced that it would hear disputes regarding Ted Cruz's natural-born citizenship.
It should not hear such disputes, because the New Hampshire state legislature has not authorized it to hear them.
Mr. Cruz was born in Canada to a Cuban father and an American mother. (There is another challenge to Mr. Cruz as well as Marco Rubio, Bobby Jindal, and Rick Santorum, all alleging citizenship-based complaints about their eligibility.) The challenges will be heard November 24.
But let's set aside the merits for a moment (even though a very strong case is to be made that, on the merits, Mr. Cruz is a "natural-born citizen"). Instead, who in New Hampshire gets to decide this question? That's the basis of my Indiana Law Journal piece. And there are at least three groups of people who get to decide, at the primary level and beyond.
Voters. That's right! The people get to vote for their preferred candidates, and they are welcome to reject a candidate whom they believe is not eligible for federal office. (Undoubtedly, some voters refused to vote for Barack Obama because they believed he was not eligible for office--but, I assume they had other reasons for refusing to vote for him, too.)
Presidential electors. In presidential elections, the ballots cast are actually for slates of presidential electors. They are often pledged to support a particular candidate (and there is a complicating factor about whether a state can compel them to support that particular candidate--perhaps for another discussion). But they may abandon a candidate if they are convinced that candidate is ineligible. (Indeed, many electors abandoned their support of Horace Greeley for vice president in 1872 because he died before taking the electoral college met--and, arguably, a dead person is not eligible to obtain that office.)
Congress. At the end of the process, when the electors have cast their votes, it's possible (but disputed) that Congress can reject the votes of the electors if Congress independently concludes that a candidate is ineligible. (Indeed, this is precisely what the House did with votes cast for the late Horace Greeley.)
But what role do the states have? Or, specifically, what role does the state of New Hampshire have in establishing rules for ballot access that refer to qualifications?
My article argues that state legislatures do possess some power to control how the decisionmaking process occurs. The Constitution provides that electors are appointed "in such manner as the Legislature thereof may direct." There is good reason to think that the legislature--which could act as voter in this case--can condition the election of presidential electors upon its own preferences regarding federal qualifications and determinations of eligibility. (That's a lengthy, and somewhat controversial, component of the article.)
New Hampshire law does require candidates to sign a declaration under penalty of perjury that they are "qualified to be a candidate for president of the United states pursuant to . . . the United States Constitution, which states, 'No person except a natural born citizen . . . .'" (RSA 655:47(I).)
But who decides whether that person has committed perjury?
It isn't the Ballot Law Commission.
The jurisdiction of the Ballot Law Commission is described in RSA 665:6. In nomination paperwork cases, it extends to the nomination papers under RSA 655:37-44. But it has no jurisdiction over cases under RSA 655:47.
That's because the Secretary of State, not the Ballot Law Commission, holds the power under RSA 655:47. Consider RSA 655:47(III): "The decision of the secretary of state as to the regularity of declarations of candidacy filed under this section shall be final."
The state legislature, then, has decided that it wants an additional level of review of the qualifications of presidential candidates--beyond the voters, the electors, and Congress. And it wants that review performed by the Secretary of State. But the Ballot Law Commission is not that entity.
The conclusion of my paper emphasizes that courts, and state election bodies, must take great care in parsing their statutes to examine precisely who is supposed to decide what when it comes to evaluating the qualifications of presidential candidates. State legislatures are not obligated to provide an independent level of review of qualifications. But if they do choose to provide that review, how they do so should be carefully construed and respected.