Derek Muller: Who Decides If Ted Cruz is Eligible to Be President?

Here’s a deep dive guest post from Derek Muller:

Earlier this week, Donald Trump suggested that Ted Cruz’s Canadian birthplace could be a problem in the event he became the Republican presidential nominee. He followed that up with a call for Mr. Cruz to seek a declaratory judgment in court that he is a “natural born Citizen” and eligible to serve as president.

There is little dispute on the facts. Mr. Cruz was born to a Cuban father and an American mother in Canada. Aaron Blake at the Washington Post helpfully compiles some of the historical disputes about natural-born citizens, including recent commentary by Neal Katyal and Paul Clement in the Harvard Law Review Forum, On the Meaning of “Natural Born Citizen.”

This is a dispute on the merits—Mr. Trump now suggesting that Mr. Cruz is not eligible, Mr. Cruz insisting that he is eligible, and a question as to who is right. Consensus suggests Mr. Cruz is eligible, and the consensus offers quite a strong argument, but it is certainly not unanimous.

But there is an even deeper question that is often unexamined in this dispute—who gets to decide whether Mr. Cruz is eligible? A court? Professor Dan Tokaji has many thoughts on the most pressing barrier to such challenges, justiciability.

  1. But before we even get to a court, consider that at least three bodies other than courts get to decide whether Mr. Cruz is eligible in the event he secures the office of president.

First, voters. The people, after all, get to vote for their preferred candidate. And the voters may reject a candidate whom they believe is not eligible for federal office. Voters may have refused to vote for Barack Obama, believing he was secretly a citizen of Kenya; John McCain, believing he was not “natural born” because his birth occurred in the Panama Canal Zone; or Mr. Cruz.

Second, presidential electors. In presidential elections, voters cast ballots for slates of presidential electors. Electors then vote for the president and vice president. Electors must often pledge to support a particular candidate (and there is a complicating unresolved dispute as to whether a state may compel electors to vote for a presidential candidate—that’s an entirely different discussion). But “faithless” electors do cast votes for candidates other than those whom they ostensibly support.

Third, Congress. At the end of the election, after the presidential electors have cast their ballots, Congress counts the ballots. Congress likely has the discretion to reject the votes of electors if Congress concludes that a candidate is ineligible.

The second and third examples are best embodied in the Election of 1872. Ulysses S. Grant soundly defeated Horace Greeley. But before the presidential electors convened, Mr. Greeley died. Most electors opted not to vote for a dead man and cast their ballots for other candidates. But three electors from Georgia votes for Mr. Greeley. When the House gathered to count the votes, it refused to count the three votes for Mr. Greeley (even though the Senate did count the votes). Indeed, Congress reasserted such authority when the Senate preemptively assured the people that Mr. McCain was a natural born citizen, and presumably would count any votes cast for him.

Even these are not without controversy—Professor Akhil Amar calls the Greeley precedent “ill-considered and should not be followed”—but they are at least plausible ways to resolve questions of Mr. Cruz’s eligibility.

  1. But, what about the courts? It turns out that states have no independent obligation to keep unqualified candidates off the ballot, and there is no right for a court to do so (absent, perhaps, some state law to the contrary).

Recall how our presidential election works. It is actually fifty-one separate elections for slates of presidential electors. Each state administers an election for presidential electors. And states are given great control—the Constitution provides, “Each State shall point, in such Manner as the Legislature thereof may direct,” presidential electors.

States, then, decide who appears on the ballot. And it decides how it will scrutinize those candidates seeking ballot access. But historically, most states did not independently examine whether a candidate was eligible or not—the matter was apparently left to the voters, the electors, and Congress.

For instance, in 1892, James B. Cranfill was nominated as the vice presidential candidate of the Prohibition Party in 1892. But Mr. Cranfill was just 34 years old, a year shy of the constitutional minimum (because “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President”). Yet he appeared on ballots in virtually every state around the country—or, in places that had not yet adopted the Australian ballot, votes cast for his slate of electors were readily counted.

And such practices are not simply the stuff of old. Róger Calero, the Socialist Workers Party candidate for president in 2004 and 2008, appeared on the ballot in several states, even though he was actually a citizen of Nicaragua. Nicaragua! He’s not even an American citizen, and he was on the ballot in several places!

States, then, are not obligated to evaluate whether someone is ineligible to be president. And, so far, there has not been much that challengers can do. (Consider the massive failure that “birthers” challenging Mr. Obama’s eligibility experienced—the vast majority of outcomes turning upon procedural hurdles to litigation and deference to the political process.)

  1. But some states do scrutinize qualifications. In 2012, states excluded candidates like Abdul Hassan and Peta Lindsay from the ballot because they concluded these candidates were ineligible. These are the cases ripe for litigation: when candidates have been excluded and seek to be placed on the ballot, they sue.

But, is any state actually going to exclude Mr. Cruz? It seems unlikely. New Hampshire, for instance, is one of the states that does scrutinize candidate’s qualifications. Its Ballot Law Commission recently heard a challenge regarding Mr. Cruz’s eligibility and decided to permit Mr. Cruz on the ballot because there was “no obvious defect” in the filing and it was “not answered with certainty” that he was ineligible.

This more deferential approach from election administrators or adjudicative bodies is sensible. After all, if voters, electors, and Congress each have the opportunity to scrutinize qualifications, why exert another layer of scrutiny, particularly in close questions? And, would we really prefer election officials, or courts, to strip ballot access from candidates? And, technically, voters are electing slates of presidential electors, anyway, not a candidate.

Accordingly, questions surrounding Mr. Cruz’s eligibility go far deeper than simply asking whether he is a “natural born citizen.” It implicates the very decision-making process in elections. And there are very good reasons that such a case should not arrive in a court unless and until some state, of its own processes, decides to exclude him from the ballot. In the unlikely event that happens… well, then the justiciability and merits challenges would begin in earnest.

(If you’d like to read an extensive explanation about some of the nuances about how this looks in litigation, please considering downloading my article recently published in the Indiana Law Journal, Scrutinizing Federal Electoral Qualifications, available for download on SSRN. I also occasionally blog about these issues at Excess of Democracy.)

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