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.