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.