Excess of Democracy

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2020 proving a quiet year (so far) for "natural born citizen" legal challenges

On the heels of conspiracy theory-driven questions about the birthplace of Barack Obama and legal questions about the birthplace of John McCain in the 2008 (and, for Mr. Obama, the 2012) election, there was a surge in “natural born citizen” litigation in the 2016 presidential election. I’ve advocated for amending the Constitution to simplify these inquiries, a tall order but one consistent, I think, with the often-marginal claims advanced and deep confusion concerning the constitutional phrase.

I thought we might see another surge of litigation in 2020. Some of the Democratic candidates whose qualifications might be challenged have dropped out, but no challenges were ever raised (that I saw). And one candidate, Tulsi Gabbard, born in American Samoa to citizen parents, has seen no challenges (again, that I’ve seen) raised. (I think Ms. Gabbard is likely eligible to serve as President, largely for reasons I think Mr. McCain was.)

Challenges sometimes happen in state administrative proceedings to ascertain whether ballot access is appropriate; it may also happen in state or federal court. But I haven’t seen any such challenges.

It may be that Ms. Gabbard hasn’t attracted the attention of the “birther” movement that kept its momentum from 2012 into 2016. Maybe her eligibility is less a target than someone like Ted Cruz in 2016, born in Canada to a citizen parent and a non-citizen parent; or maybe her rather marginal polling has kept her from litigation.

Regardless, I thought it was worth noting that despite my worries that we’d continue to see a rash of "natural born citizen-related litigation, this cycle has been fairly quiet (so far!). Instead, it’s simply left to the electoral process to sort it out—which is my preference, anyway.