Reuters opinion on legal challenges to Ted Cruz's eligibility

I have an opinion piece at Reuters, Natural-born mess: What would it take to kick Ted Cruz off the ballot? It begins:

Donald Trump has resuscitated questions regarding Texas Senator Ted Cruz’s eligibility to serve as president of the United States. Cruz was born in Canada to a Cuban father and an American mother. A recent Trump tweet succinctly pressed the issue: “Sadly, there is no way that Ted Cruz can continue running in the Republican primary unless he can erase doubt on eligibility. Dems will sue.”

The U.S. Constitution requires that the president be a “natural-born citizen” of the United States. Though many contend that being born to an American mother is sufficient, others say only those born on U.S. soil are eligible.

What would a legal challenge to Cruz’s eligibility look like? It’s far more complicated than you might think because it depends on how each state handles his access to the ballot. New Hampshire’s Ballot Law Commission, for example, has already said that Cruz is eligible — at least until a court says otherwise.

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.

Guest post at the Election Law Blog on Ted Cruz eligibility challenges

Over at the Election Law Blog, I have a guest post on the recent controversy over Ted Cruz's eligibility. It begins:

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.

Justice Sotomayor: "too many" states disenfranchise prisoners

In my quick thoughts on oral argument in Evenwel v. Abbott, my read of the PDF transcript missed this exchange, which I picked up listening to the audio this weekend:

MR. CONSOVOY: . . . The State can solve this problem themselves. These States can enfranchise these people and give them the vote. The States come here to say we do not want them to vote, but we want them to count for districting. That should be rejected by this Court.

Second--

JUSTICE SOTOMAYOR: That's not quite accurate. For--for most states, too many, they disenfranchise prisoners, except for those who come from that locale, which is quite rational. Most States disenfranchise the mentally ill. So how are they--who else are they going to disenfranchise.

It might be that Justice Sotomayor conflated "prison gerrymandering" (the practice of including prisoners in the district where they are imprisoned for purposes of determining the total population in a district, rather than deeming prisoners residents of where they last lived before being imprisoned) with felon disenfranchisement--that's the only way to make sense of the "except for those who come from that locale" remark. But the comment regarding "too many" states that disenfranchise "prisoners" (which, as I last checked, was every state except for Vermont and Maine), as opposed to ex-felons, stood out listening to oral argument.

Quick thoughts from today's oral argument in Evenwel v. Abbott

Following up on recent discussions (one, two, three) of Evenwel v. Abbott, I read today's oral argument transcript (PDF). Here are a few quick thoughts.

A back and forth occurred about whether women should have been included for purposes of redistricting between 1868 and 1920:

JUSTICE GINSBURG:  Is it your view that what the Fourteenth Amendment means is that in all the years between ­­-- what was it? ­­-- 1868 and 1920, it was wrong for the States to include, for these purposes, women? They were not eligible voters.

MR. CONSOVOY:  Any ­­-- there is no question that was a problem.  It was an ­­ it was an issue in the '60s with minorities as well who were ­­-- who were disenfranchised.  The ­­ the Court in Reynolds at the time was doing more than one thing at once.

JUSTICE GINSBURG:  But you're saying that that was wrong.  I mean, in your interpretation of the Fourteenth Amendment from 1869 till 1920, the State should not have been counting women for ­­-- for purposes of determining representation in the State legislature.

MR. CONSOVOY:  For purposes of the ­­ of the Equal Protection Clause, the one­-person, one­-vote rule protects voters.  If disenfranchisement of women or minorities is an issue, those cases could have been brought.  Eventually, that issue was resolved by this country, as was minority representation.

Justice Kagan raised some thoughts on the nature of the Fourteenth Amendment:

JUSTICE KAGAN:  Mr. Consovoy, could I go back to the question that Justice Breyer raised and can ­­ stripped, if he'll permit me, of the Guarantee Clause, because the Fourteenth Amendment is actually quite ­­ you know, the framers of the Fourteenth Amendment explicitly considered this issue, and, you know, made a decision.

So Senator Howard, who introduces the Amendment on behalf of the joint committee that drafts it, talks about these deliberations.  And he says the committee adopted numbers as the most just and satisfactory basis, and that's the principle upon which the Constitution itself was originally framed, referring back to the original drafting. And then he says numbers, not voters; numbers, not property; this is the theory of the Constitution.

Now, this is the theory of the Constitution as to one thing, which is not the thing that you are talking about. This is the theory of the Constitution as to House apportionment.

But, again, I'll go back to this question. This is just a clear, explicit choice that was made about what it meant to -- to have equal representation with respect to that area. And how you go from that being mandated to it being prohibited in the State context is something that I still can't quite work myself around.

MR. CONSOVOY: Justice Harland agreed with you. He did.

JUSTICE KAGAN: That's a good person to be on the side of.

Late in appellant's argument, Justice Breyer and Sotomayor also floated about whether to include or exclude children in the population for redistricting purposes, too.

Chief Justice Robert opened early with a remark about "one person, one vote": "Well, it is --0 it is called the one-person, one-vote. That seems to be designed to protect voters."

Justice Alito opened with a potential dichotomy that attracted much discussion.

JUSTICE ALITO:  There are at least two arguments that could support your position.  One is that it's one­-person, one­-vote, and what counts is giving each person an equal chance of affecting the outcome of the election.  But total population figures are a good enough proxy for eligible voters.  That's one possible argument.

And that's ­­-- that's what the census measures, and that's close enough.

 Another argument is that representational equality is the real basis, and therefore that's why you use population.

...

It seems to me that the two interests are not always consistent. They can be in great conflict.

You can have a situation if you -- if you want to equalize population, you may have a situation where you cause great inequality in the -- the chances of any -- of voters affecting the outcome of the election. On the other hand, if you choose eligible voters only, then you may have a situation where every person within two districts does not have an equal representation defined in some way in the legislature.

I don't think you can just say, well, it's -- you know, we serve both. What do you do when they come into conflict?

Justice Breyer worried about theirs of virtual representation:

[MR. KELLER:] The issue is does State -- does a State have to have the same amount of constituents per representative? And a State can do so. It's a legitimate--

JUSTICE BREYER: That sounds an awful lot what they had in 1750 or something, where the British Parliament said, well, don't worry, America, you're represented by the people in England because after all, they represent everybody in the British Empire.

Justice Sotomayor appeared interested in whether the census data used for the Voting Rights Act would be appropriate to use for an equal voting analysis. There was specific mention of the Persily brief and a disagreement with the United States on the view of Section 2 of the Voting Rights Act (tr. 37-39).

Justice Alito led a line of inquiry about who has standing--a question reserved by the Court in Baker v. Carr.

There is little that I can glean from the argument, except a lot of curiosity about the right standards and what they might look like. Perhaps of note? Justice Scalia did not ask a single question the entire argument.

This post has been updated.

Evenwel v. Abbott and the history of the redistricting cases

I have posted an early draft of a forthcoming article in the Harvard Journal of Law & Public Policy, Perpetuating "One Person, One Vote" Errors. It picks up on some of my previous critiques of Evenwel v. Abbott, the redistricting case the Supreme Court will hear next week.

I dug into some of the history of the early redistricting cases, especially Baker v. Carr, Reynolds v. Sims, and Burns v. Richardson. I did a fair amount of archival research at the Library of Congress on these cases. I was somewhat surprised to find that the justices' own clerks were advocating for narrower positions than those ultimately reached by the Court. Time and again, the Court eschewed narrower holdings in efforts to provide a very broad principle of "one person, one vote" that would ultimately compel "that the seats in both houses of a bicameral state legislature must be apportioned on a population basis." Evenwel is a dispute about whether to require still more from state legislatures.

One of the best findings from the archival research includes an omitted footnote from an early draft Burns v. Richardson. In Burns, the Court permitted Hawaii to draw its legislative district on the basis of registered voters rather than total population. But a footnote, later omitted, explained the circumstances that would justify a basis for drawing state legislative districts:

Thus, one State may stress that the role of a representative is to serve the entire community from which he comes, whether or not all its members are or ever will be eligible to participate in the electoral process. It may assume that those who are ineligible to vote will find “representation” in the voting booth through those who are eligible, as children do through their parents, and will find other ways to participate in the political process or share the burdens of government. Another may consider that a representative is more likely to respond to the needs of those who are or may be eligible to vote for him than to the needs of ineligibles. Voters residing in areas of the State where there are unusual percentages of ineligibles might appear from this perspective to have enhanced voting power if a total population distribution were used. . . .

This footnote, which would largely settle much of the dispute in Evenwel, was omitted within two weeks of the final opinion. I have posted a scan of the document on Scribd here. While not the Court's holding, and hardly its dicta, it captured my interest.

Comments on the article are quite welcome!

Who in New Hampshire gets to decide if Ted Cruz is a "natural-born citizen"?

Recently, the New Hampshire Ballot Law Commission announced that it would hear disputes regarding Ted Cruz's natural-born citizenship.

It should not hear such disputes, because the New Hampshire state legislature has not authorized it to hear them.

Mr. Cruz was born in Canada to a Cuban father and an American mother. (There is another challenge to Mr. Cruz as well as Marco Rubio, Bobby Jindal, and Rick Santorum, all alleging citizenship-based complaints about their eligibility.) The challenges will be heard November 24.

These kinds of challenges are nothing new. Indeed, I highlighted them recently on this blog, citing my recent Indiana Law Journal article, Scrutinizing Federal Electoral Qualifications.

But let's set aside the merits for a moment (even though a very strong case is to be made that, on the merits, Mr. Cruz is a "natural-born citizen"). Instead, who in New Hampshire gets to decide this question? That's the basis of my Indiana Law Journal piece. And there are at least three groups of people who get to decide, at the primary level and beyond.

Voters. That's right! The people get to vote for their preferred candidates, and they are welcome to reject a candidate whom they believe is not eligible for federal office. (Undoubtedly, some voters refused to vote for Barack Obama because they believed he was not eligible for office--but, I assume they had other reasons for refusing to vote for him, too.)

Presidential electors. In presidential elections, the ballots cast are actually for slates of presidential electors. They are often pledged to support a particular candidate (and there is a complicating factor about whether a state can compel them to support that particular candidate--perhaps for another discussion). But they may abandon a candidate if they are convinced that candidate is ineligible. (Indeed, many electors abandoned their support of Horace Greeley for vice president in 1872 because he died before taking the electoral college met--and, arguably, a dead person is not eligible to obtain that office.)

Congress. At the end of the process, when the electors have cast their votes, it's possible (but disputed) that Congress can reject the votes of the electors if Congress independently concludes that a candidate is ineligible. (Indeed, this is precisely what the House did with votes cast for the late Horace Greeley.)

But what role do the states have? Or, specifically, what role does the state of New Hampshire have in establishing rules for ballot access that refer to qualifications?

My article argues that state legislatures do possess some power to control how the decisionmaking process occurs. The Constitution provides that electors are appointed "in such manner as the Legislature thereof may direct." There is good reason to think that the legislature--which could act as voter in this case--can condition the election of presidential electors upon its own preferences regarding federal qualifications and determinations of eligibility. (That's a lengthy, and somewhat controversial, component of the article.)

New Hampshire law does require candidates to sign a declaration under penalty of perjury that they are "qualified to be a candidate for president of the United states pursuant to . . . the United States Constitution, which states, 'No person except a natural born citizen . . . .'" (RSA 655:47(I).)

But who decides whether that person has committed perjury?

It isn't the Ballot Law Commission.

The jurisdiction of the Ballot Law Commission is described in RSA 665:6. In nomination paperwork cases, it extends to the nomination papers under RSA 655:37-44. But it has no jurisdiction over cases under RSA 655:47.

That's because the Secretary of State, not the Ballot Law Commission, holds the power under RSA 655:47. Consider RSA 655:47(III): "The decision of the secretary of state as to the regularity of declarations of candidacy filed under this section shall be final."

The state legislature, then, has decided that it wants an additional level of review of the qualifications of presidential candidates--beyond the voters, the electors, and Congress. And it wants that review performed by the Secretary of State. But the Ballot Law Commission is not that entity.

The conclusion of my paper emphasizes that courts, and state election bodies, must take great care in parsing their statutes to examine precisely who is supposed to decide what when it comes to evaluating the qualifications of presidential candidates. State legislatures are not obligated to provide an independent level of review of qualifications. But if they do choose to provide that review, how they do so should be carefully construed and respected.

NBC affiliates report Donald Trump appeared for on SNL 12 minutes, 5 seconds for equal time purposes

Last week, anticipating Donald Trump's appearance on Saturday Night Live, Babette Boliek and I wrote an opinion piece in the Wall Street Journal calling for an end to the equal time doctrine. Today, the NBC affiliates have begun filing their notices to comply with equal time. They are reporting that Trump appeared for 12 minutes, 5 seconds. Variety reflected that it appears Mr. Trump received so little airtime (relative to a typical host of the show) because of worries about the equal time doctrine and triggering free airtime for other candidates--precisely a worry Professor Boliek and I address in our piece.

The Donald On "SNL": Equal Time Isn't Needed

That's the title of my opinion piece, co-authored with my colleague Babette Boliek, in the Wall Street Journal. It includes the following call:

Holding a small number of broadcast stations and cable and satellite operators to a century-old standard makes little sense. Given the few situations that now trigger the equal-time doctrine, the explosion in available media outlets, and the government’s strained interpretations of the rule, it is hard to imagine how the doctrine yields more speech than it chills.