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Will a Birther Lawsuit Derail Ted Cruz?

A Houston attorney takes the Texas Senator to court in order to determine whether he’s eligible for the presidency.

01.15.16 11:15 PM ET

The “birther” claims against Sen. Ted Cruz are heading to court.

Houston attorney Newton Boris Schwartz, Sr. filed a suit in federal court Thursday seeking a judgement about whether Cruz is eligible to become president. Although Cruz’s mother is an American citizen by birth, Cruz was born in Canada.

In an interview with the Daily Beast, Schwartz said he believes he has legal standing to bring the suit as a registered voter in Texas and hopes to [ADD- see] the matter settled before voting begins.

“Why have the uncertainty? Why go through an election or even a primary or a convention if someone’s not eligible?” Schwartz said. “I used to tutor football athletes when they had to forfeit the entire season if they weren’t eligible. The American presidency is a hell of a lot more important than some football team and you want to make sure your players are eligible. All I’m asking the court to do is decide either he is or he is not eligible. That’s the end of it. It’s very simple.”

Specifically, Schwartz has requested a declaratory judgement about Cruz’s eligibility under Article II, Section I, Clause 5 of the U.S. Constitution, specifically the language that requires that the president be a “natural born citizen of the United States.”

Several legal scholars have argued recently that Cruz’s birth in Canada, rather than on American soil, could make him naturalized citizen, rather than a natural born citizen, as the constitution requires. For example, Mary Brigid McManamon, a constitutional law professor at Widener University Delaware Law School, recently published an op-ed in the Washington Post arguing that Cruz is not eligible to be president or vice president of the United States. Laurence Tribe, a constitutional law professor at Harvard Law, who is a former professor of Cruz’s, made a similar argument in the Boston Globe.

Schwartz himself graduated from the University of Texas Law School in 1954 and has since been a trial lawyer in Houston. He currently heads a three-lawyer law firm. He said that has voted for both Democrats and Republicans, but voted against Cruz for Senate in 2012, and voted for President Obama in 2008 and again in 2012. He said he had never met Cruz and never faced off against him in court.

Cruz himself has dismissed questions about his eligibility for the presidency, including Trump’s questions, as sour grapes as Cruz closed in on Trump in national polls and took the lead in Iowa. “The law is clear and straight forward,” Cruz has said.

A suit similar to Schwartz’s suit was recently filed against Marco Rubio in Florida, which Rubio’s lawyers responded to in detail this week, pointing out that Rubio was born in the United States and therefore is a natural-born U.S. citizen even though his parents were not citizens at the time. Rep. Alan Grayson (D-Fla.) has said he would file his own suit against Cruz if he were to become the Republican nominee.

The Texas case has been assigned to Judge Gray H. Miller in the U.S. District Court in the Southern District of Texas, but Schwartz said he expects it to eventually reach the U.S. Supreme Court, an outcome he thinks would help Cruz, no matter how it is decided.

“Cruz should welcome this suit,” Schwartz said. “He should have filed it himself.”