Donald Trump Likely Has Standing To Contest Cruz’s Eligibility. Trump Should Lose on the Merits, If Courts Reach the Merits

The lawsuits filed so far in federal court to get Ted Cruz kicked off the ballot as a natural born citizen likely have an insurmountable standing problem. “Voters” as a class generally do not have enough of a concrete stake in the proceedings to have the case heard in federal court. (Federal courts under Article III of the Constitution can decide only cases or controversies, and standing is one of those doctrines to make sure there is enough at stake for such a case to be heard.)  Recently, Donald Trump tweeted that he would have standing to sue to try to get Cruz kicked off the ballot. Is that true? First, let’s clear the brush.

  1. To begin with, Cruz would almost certainly have standing if a local election official refused to put Cruz on the ballot ruling him ineligible because he is not a natural born citizen.  But so far I’m not aware of any elected official that has so ruled.
  2. I also don’t know enough about state standing rules etc. to know how a Trump or other case would fare in state court, rather than federal court. Each state’s rules on standing are different.
  3. There may be other doctrines besides standing that could keep a federal court for deciding the question. For example, a court may say that this is a non-justiciable political question, which is committed to state legislatures (which pick the rules for choosing presidential electors) on Congress (which counts electoral college votes).

So here’s the case for Trump’s standing (as I alluded to in an earlier post): competitive standing. Here’s a 2008 federal district court case, Hollander v. McCain, involving a voter challenge to McCain’s eligibility to run for president:

To be sure, courts have held that a candidate or his political party has standing to challenge the inclusion of an allegedly ineligible rival on the ballot, on the theory that doing so hurts the candidate’s or party’s own chances of prevailing in the election. See, e.g., Tex. Dem. Party v. Benkiser, 459 F.3d 582, 586-87 & n.4 (5th Cir. 2006); Schulz v. Williams, 44 F.3d 48, 53 (2d Cir. 1994); Fulani v. Hogsett, 917 F.2d 1028, 1030 (7th Cir. 1990). But that notion of “competitive standing” has never been extended to voters challenging the eligibility of a particular candidate. See Gottlieb v. Fed. Elec. Comm’n, 143 F.3d 618, 622 (D.C. Cir. 1998).

And here’s a 9th Circuit case which recognizes the doctrine as applied to real candidates for office, Drake v. Obama, involving a challenge to Obama’s eligibility to run for president:

The remaining plaintiffs were political candidates and a certified elector during the 2008 general election. Plaintiffs Alan Keyes and Wiley S. Drake were the Presidential and Vice Presidential candidates, respectively, of the American Independent Party on the California ballot in the 2008 Presidential Election. Plaintiff Gail Lightfoot, a member of California’s Libertarian Party, was an official write-in Vice Presidential candidate in California in 2008. Plaintiff Markham Robinson was a certified California elector for, and Chairman of, the American Independent Party.

These plaintiffs argue that they have standing because, as candidates running against Obama in the 2008 election, they had an interest in having a fair competition for the positions they sought to obtain. If Obama entered the presidential race without meeting the requirements for the office, they contend, the candidates did not have a fair opportunity to obtain votes in their favor. Plaintiffs further argue that Robinson, as an elector, also had an interest in a fair competition between eligible candidates, including those for whom he had pledged to vote.

Plaintiffs cite a case from the District of New Hampshire, Hollander v. McCain, for the proposition that “a candidate or his political party has standing to challenge the inclusion of an allegedly ineligible rival on the ballot, on the theory that doing so hurts the candidate’s or party’s own chances of prevailing in the election.” 566 F.Supp.2d 63, 68 (D.N.H.2008). This notion of “competitive standing” has been recognized by several circuits. See, e.g., Tex. Democratic Party v. Benkiser, 459 F.3d 582, 586–87 & n. 4 (5th Cir.2006) (political party has standing because “threatened loss of [political] power is still a concrete and particularized injury sufficient for standing purposes”); Schulz v. Williams, 44 F.3d 48, 53 (2d Cir.1994) (political party representative has standing because his party may “suffer a concrete, particularized, actual injury—competition on the ballot from candidates that … were able to avoid complying with the Election Laws and a resulting loss of votes”) (internal quotation marks omitted); Fulani v. Hogsett, 917 F.2d 1028, 1030 (7th Cir.1990) (third-party presidential candidate had standing because the allegedly improper placement of the major-party candidates on the ballot resulted in “increased competition” that required “additional campaigning and outlays of funds” and resulted in lost opportunities to obtain “press exposure” and win the election).

We, too, have upheld the notion of “competitive standing.” In Owen v. Mulligan, we held that the “potential loss of an election” was an injury-in-fact sufficient to give a local candidate and Republican party officials standing. 640 F.2d 1130, 1132–33 (9th Cir.1981). In that case, the candidate for local office sued the Postal Service for giving his rival a preferential mailing rate, in violation of its own regulations and of its representations to the court regarding procedures implemented in response to a previous injunction. Id. at 1132. The candidate and party officials sought “to prevent their opponent from gaining an unfair advantage in the election process through abuses of mail preferences which arguably promote his electoral prospects.” Id. at 1133 (internal quotation marks and citations omitted). We rejected the Postal Service’s argument that the potential loss of an election due to an unfair advantage for the opponent was an “injury [that was] too remote, speculative and unredressable to confer standing.” Id. at 1132 (internal quotation marks omitted).3

Here, the District Court assumed, without deciding, that only those plaintiffs who were political candidates in 2008 could potentially satisfy the injury-in-fact requirement of standing because they had a competitive interest in running against a qualified candidate. The District Court then turned to the redressability requirement of standing.

The District Court was mistaken in assuming, however, that the political candidates still had an interest in a fair competition at the time the complaint was filed. The original complaint was filed on January 20, 2009, at 3:26 p.m. Pacific Standard Time, after President Obama was officially sworn in as President. The First Amended Complaint was filed on July 14, 2009. *784 Whichever complaint is considered, the 2008 general election was over when it was filed. Once the 2008 election was over and the President sworn in, Keyes, Drake, and Lightfoot were no longer “candidates” for the 2008 general election. Moreover, they have not alleged any interest in running against President Obama in the future. Therefore, none of the plaintiffs could claim that they would be injured by the “potential loss of an election.” Owen, 640 F.2d at 1132. Plaintiffs’ competitive interest in running against a qualified candidate had lapsed.4 Similarly, Robinson’s interest as an elector—derived from the competitive interest of his preferred candidates—was extinguished by the time the complaint was filed.

For the foregoing reasons, the political candidates failed to establish redressability sufficient to establish standing. They cannot claim competitive standing because they were no longer candidates when they filed their complaint.

And here’s a recent federal district court case, Grinois v. Electoral College, explaining Drake:

Several Circuits, including the Ninth Circuit, have recognized a “competitive standing” theory. See, e.g., Owen v. Mulligan, 640 F.2d 1130, 1132–33 (9th Cir.1981); Tex. Dem. Party v. Benkiser, 459 F.3d 582, 586–87 (5th Cir.2006); Schulz v. Williams, 44 F.3d 48, 53 (2d Cir.1994); Fulani v. Hogsett, 917 F.2d 1028, 1030 (7th Cir.1990). The Ninth Circuit has explained that “a candidate or his political party has standing to challenge the inclusion of an allegedly ineligible rival on the ballot, on the theory that doing so hurts the candidate’s or party’s own chances of prevailing in the election.” Drake v. Obama, 664 F.3d 774, 782 (9th Cir.2011) (quoting Hollander, 566 F.Supp.2d 63, 68 (D.N.H.2008)). For the competitive standing theory to apply, however, a competitor must have a “chance of prevailing in the election.” Drake, 664 F.3d at 782. A chance is “the possibility of a particular outcome in an uncertain situation.” (Merriam–Webster’s Dictionary, Other courts have emphasized that a political candidate must be a “competitor” or “rival” to demonstrate the particularized injury element of competitive standing….

It looks like Trump would satisfy the Drake test. He’s a serious candidate, who faces a potential loss of election to Cruz. He’s not a write-in candidate who’s just trying to conjure up standing. He faces a real injury. I’m perplexed by Josh Douglas’s statement that it would be hard to show that Trump faces additional expenses having to run against Cruz and therefore he does not have enough at sake for standing. Of course he has to spend more to run against Cruz. As candidates drop out, he can spend less to fight against each of them.

Now just because Trump would likely have standing, at least for a suit in the Ninth Circuit, does not mean he’d win. There may be political question issues, as I’ve mentioned. His suit may come too late, and be barred by laches.

But what if the courts reach the merits? As I’ve argued in this NLJ piece, at that point courts should rule that Cruz should win:

It is easy for liberals to latch onto the Donald Trump-fueled theory that Sen. Ted Cruz is ineligible to be president because he is not a “natural born” citizen. The argument allows progressives to call Cruz a hypocrite given his preferred originalist method of constitutional interpretation. And it gives conservative Republicans a taste of the noxious birther medicine that’s been used against President Barack Obama.

But liberals should embrace an interpretation of the Constitution that maximizes the voter choice and enfranchisement of voters, one that would minimize the reach of an archaic constitutional provision suggesting that only those born on U.S. soil are qualified to be president. Fight Cruz on his ideas, not his eligibility for office.

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